Tuesday, January 10, 2012

Very Interesting Discovery

I have long been annoyed by Griswold v. Connecticut (1965), not because I disagree with the specific results of it (which struck down state laws prohibiting married couples from obtaining contraceptive information or devices), but because it is such an arm-waving decision, based on a right to privacy that seems to be found hiding somewhere under the Ninth Amendment.  But how, exactly, is there a right to privacy, and how does one derive it from the Ninth Amendment?

The Ninth Amendment guarantees that the failure to explicitly identify such a right in the Constitution "shall not be construed to deny or disparage others retained by the people."  But what rights are retained?  The model that I think is consistent and logical is that a right was retained if:

1. There was a clear-cut statement that there was such a right, generally recognized in 1789.

2. There were no laws at the state level that interfered with such a right in 1789.  If some states criminalized X in 1789, it is hard to hard to argue that X was recognized as a right in 1789.

3. There might well be situations where X was unknown in 1789, and not criminalized for that reason, and yet still not be rights in any sense that the Founders would recognize, but these would likely be quite rare.

It turns out that while there was considerable disapproval of contraception in the colonial period, I cannot find any evidence that any American colony prohibited it, nor does this seem to be any evidence of a common law prohibition.  I can't find any such statutes in Connecticut's Code of Laws (1650), nor do I recall seeing any signs of this in Plymouth, Maryland, or Virginia colonial codes.  It appears that the first of the contraceptive bans is the Comstock Act (1873)--far past the point where there can be any originalist case against contraception as a reserved right.

The same, of course, is not true for abortion after the quickening, or for homosexuality.  The former enjoys some limited protection from Roe v. Wade (1973) and the latter full protection under Lawrence v. Texas (2003), both of which of are progeny of Griswold's "right to privacy" claim.

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