Right to Privacy and Strict Constructionist Republicans

Right to Privacy and Strict Constructionist Republicans
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What they say: Republicans say they hate government but also claim to be strict constructionists when it comes to the Constitution, but when it comes to Americans' constitutional right to privacy, you would be surprised where they stand.

What they actually believe: In the midst of the Sotomayor confirmation, Americans should be reminded that the GOP is in an indefensible position because of their on-the-record opposition to American's right to privacy, a right that was "created" in the 1960s by the Supreme Court but not a right explicitly granted in the Constitution.

Background: The basis for many of the controversial social fights of the last 35-40 years (especially abortion and gay rights) is the 1965 Griswold v. Connecticut Supreme Court ruling where, for the first time, a majority of the Court determined that there is an implied right to privacy even though no where does the Constitution explicitly grant such a right to citizens. This is absolutely anathema to those who claim to hate "activist" courts and "law-writing" from the bench.

That case held that the right to use contraceptives is protected from being outlawed by a state because Americans have a right to privacy that the government cannot abrogate. Based on this ruling, the Court later protected the right to abortion (Roe v. Wade, 1973) and the right to heterosexual and homosexual sex (Lawrence v. Texas, 2007).

Originalists and conservative heroes like Thomas and Scalia have explicitly argued that the right to privacy is, in fact, not a constitutional right.

Justice Thomas: there is "no general right of privacy" or relevant liberty in the Constitution (Lawrence v. Texas dissent)

Justice Scalia: has often spoken disparagingly of the "so-called 'right to privacy'"(Lawrence v. Texas dissent)

Yet very few conservatives or GOP leaders in their right mind would dare argue that there is no right to privacy in the United States because they know it is a losing proposition. Better to leave Americans in the dark than reveal such uncomfortable and fundamental tenets of their political religions.

For Roe v. Wade to be overturned, a central plank of almost every Republican politicians and ideologue, the Court must conclude that, in fact, Americans have no right to privacy.

No doubt that would make a lot of conservatives squirm in their constitutional emperor's clothing.

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