U.S. GOVERNMENT & POLITICS, SPRING 2011

CIVIL LIBERTIES, DAY TWO: THE RIGHT TO PRIVACY

Woll 27 (Warren & Brandeis), 28 (Griswold v. Connecticut), 29 (Roe v. Wade);

Woll 72 (O’Connor), 73 (Rehnquist), 74 (Scalia) (all from Planned Parenthood of SE Pennsylvania v. Casey)

Monday, April 4

• [from last Wednesday’s handout] The right to privacy is (according to some justices) founded in the 9^th Amendment and implied by several other amendments. The right to privacy underlies the reasoning in cases about birth control, abortion, and sexual orientation. Controversies abound – did the Framers intend a right to privacy (and if so why is it not explicitly stated in the Constitution?); if a right to privacy exists, how far does it extend? Today’s readings focus on privacy rights and the key Supreme Court cases.

• Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

• The Supreme Court continues to hear cases involving all aspects of Bill of Rights, coming primarily from constitutional challenges to state and local laws, or occasionally to practices of private groups

Woll 27 and 28: setting the stage for Roe v. Wade

27: Warren and Brandeis, writing long before the court cases we read for today, make two essential points. First, law changes with the times – this is a widely accepted notion, gounded in the idea of common law (decisions by judges that establish precedents) that is one key foundation of the U.S. legal system. Second, these changes include greater respect for personal privacy.

28: In overturning the conviction of Estelle Griswold for providing birth control information to married people, this 1965 decision establishes a more firm right to “privacy” that is later used to justify abortion rights in Roe v. Wade eight years later.

Woll 29: Roe v. Wade

Justice Blackmun’s majority decision accepts the notion of a constitutionally protected right to privacy, asserts this is a fundamental right (and thus not to be abridged without strict scrutiny of any law that would do so), and outlines how this right pertains to abortion. Note that this decision does indicate times during a pregnancy when states could regulate abortion or even outlaw it (with the exception of the mother’s health), although the overall impact is to extend abortion rights throughout the entire U.S.

SOME QUESTIONS: The questions raised in these cases are fundamental constitutional questions: what does the Ninth Amendment mean? If several amendments protect various aspects of the privacy of individuals and of “liberty” in general, does this imply that the Constitution broadly protects liberty and the privacy of individuals? What criteria are being used to decide these cases?

Woll 72, 73, 74: three perspectives on the right to privacy and the Roe v. Wade precedent

All three of these readings are from the same case, almost 20 years after the Roe decision. Each justice weighs in on the extent of constitutional protections for privacy – and by extension, for abortion – and the degree to which existing precedents should guide the Court’s decisions. Justice O’Connor, writing for the 5-person majority in the case, takes one view of these questions; Justice Rehnquist and Justice Scalia, separately writing for the 4-person minority, differ sharply both on the question of privacy rights and the reasoning behind Roe v. Wade.

MORE QUESTIONS: These are actually the same ones! what does the Ninth Amendment mean? If several amendments protect various aspects of the privacy of individuals and of “liberty” in general, does this imply that the Constitution broadly protects liberty and the privacy of individuals? What criteria are being used to decide these cases?