U.S. Supreme Court Justice Antonin Scalia says that the pivotal decision which reversed a law that prohibited women from using contraception is not supported under his interpretation of the Constitution. During an interview on Sunday, Fox News host Chris Wallace asked Scalia why he believed that it is a “lie” that women have a Constitutional right of privacy to choose to have an abortion and to use contraception.
Many people today do not remember that the sales and use of contraceptive products, even by married couples, were against the law in many states until the mid-1960's.
Even the distribution of books and pamphlets about contraceptive products and practices was illegal. The U.S. Supreme Court ruled such state laws unconstitutional in its 1965 Griswold v. Connecticut decision. The court based its Griswold decision partially on the grounds that such state laws violated a married couple's right to privacy in making their own private family planning decisions.
Social conservatives hold the Supreme Court's Griswold “right to privacy” declaration with contempt because it is the foundation of the court's 1973 Roe v. Wade decision. Citing the Griswold v. Connecticut and Eisenstadt v. Baird decisions, which were based on justifications of privacy, the Justice Burger Court extended the right of privacy to include a woman's right to have an abortion in its 1973 Roe v. Wade decision.
Justice Scalia told Fox News host Chris Wallace during the interview:
“Nobody ever thought that the America people voted to prohibit limitations on abortions,” the 76-year-old conservative justice explained. “There’s nothing in the Constitution that says that.”
“What about the right to privacy that the court found in 1965?” Wallace pressed.
“There’s no right to privacy in the Constitution — no generalized right to privacy,” Scalia insisted.
“Well, in the Griswold case, the court said there was,” Wallace pointed out.
“Yeah, it did,” Scalia agreed. “And that was wrong.”
Justice Thomas’ dissent in Lawrence v. Texas leaves little doubt that he also would overrule Griswold if given the chance, and Chief Justice Roberts disparaged Griswold in a Memorandum he drafted in 1981 to the Attorney General, although he claimed to have backed away from that view in his confirmation hearing.
The GOP is on the record as opposing the court's finding that the language of the constitution defines a principle that American citizens have a general right of privacy to be left alone without government intrusion into their personal or family decisions and lifestyle. Conservatives in the GOP continue to press their so called strict constructionist originalism and textualism constitutional argument, that Americans have no right to privacy, because it is not explicitly enumerated (written) in the Constitution.
Conservatives argue that the framer's "original intent" can be found only in the exact words written in the constitution rather than an understanding and application of the principles that framers were attempting to define. Conservatives maintain that judges who make decisions based on "constitutional principles" carried in the words, rather than application of the exact words, written in the constitution are liberal activist judges who legislate from the bench.
Originalism and textualism are an umbrella terms for two major constructionist theories, principally:
- The original intent theory, which holds that interpretation of a written Constitution and Bill of Rights is (or should be) consistent with what was intended in the context of the accepted culture and traditions of those who drafted and ratified the Constitution and Bill of Rights amendments during the 18th, 19th and 20th centuries.
- The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text.
Of course, the Constitution, as written, does not specifically prohibit a legislative body at the state or federal level from segregating schools as separate but equal "white only" and "black only" institutions, but the Supreme Court did find such laws unconstitutional in the court's 1954 Brown vs. Board of Education decision.
In Brown the court found that the language of the constitution defines principles that segregation deprives segregated citizens of their equal protection under the "due process of law" as granted in the 14th Amendment.
The late Chief Justice William Rehnquist, who held "constructionist" views on constitutional interpretations, opposed Brown v. Board of Education as an unconstitutional decision when he was a Supreme Court clerk. Rehnquist also urged Barry Goldwater to argue that the 1964 Civil Rights Act was unconstitutional.Nor does the Constitution, as written, specifically prohibit a legislative body at the state or federal level from segregating drinking fountains as "white only" and "black only," from restricting marriage between people of different races, from making the use of birth control pills and condoms a criminal offense, from requiring parents to send their children to public rather than private schools or even from restricting access to the ballot box on election day through poll taxes, literacy tests and other "Jim Crow" related laws.
These and other such rights are not enumerated by specific wording in the U.S. Constitution, but they are rights that most Americans today believe are specifically guaranteed by the Constitution. Even so, Americans were denied these rights by many state and federal laws, particularly among southern states like Texas, until the 1950's and 1960's.Conservatives continue to maintain that it is wrong to appoint "activist" Supreme Court Judges who believe the constitution grants rights of privacy and civil equality not explicitly enumerated in word.
Conservatives, in fact, want conservative activist Supreme Court Judges who will apply the principles of originalism and textualism to overturn more than a hundred years of legal precedent to grant "corporations the rights of individual citizens," as the Roberts Court did when it greatly expanded the parameters of Citizens United v. FEC ruling.
Conservatives, in fact, want conservative activist Supreme Court Judges who will look for opportunities to turn the constitutional clock back to a time before Brown v. Board of Education and Griswold v. Connecticut.