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Robert B. Sklaroff, M.D.
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Robert B. Sklaroff, M.D. Medical Oncology/Hematology Telephone: (215) 663-8200 Facsimile: (215) 663-8388 Medical Arts Building - Suite #130 50 East Township Line Road rsklaroff@comcast.net Elkins Park, PA 19027-2253 http://www.doctor-bob.biz/rsklaroff
9/9/2006
To: Interested Parties Re: Griswold/Roe & The Constitutional “Right” of Privacy
I theorized that the 10th Amendment defines a right-of-privacy that can withstand the type of scrutiny that has been directed at prior decisions, principally the 1965 Griswold case which overturned a Connecticut law banning contraceptives. Curiously, this gambit (following circulation to two pals) led to the unearthing of two pending cases which would invoke this same clause to mandate that only the states could claim purview, here. Thus, the purpose of this memo is to summarize my argument, address the contrarians, and generate a conclusion that will pass muster from anyone who doubts that there is a definable “privacy” right which, intuitively, any true Jeffersonian would assume to exist.
My critics have challenged any support for Santorum, even as I have steadfastly defended his Foreign Policy clarity/courage/correctness, regardless of any domestic policy issue. Ultimately, I’ve quoted Golda’s comment of 3 decades ago (paraphrased) when she said something like, “Whether you want to be pro-life or be pro-choice, first you have to be!” I still feel he’s preferable to Casey, although his domestic stances are quite problematic.
Santorum’s Views, Analyzed
In It Takes a Family, he asserted [page 224] that, in Griswold, the SCOTUS “discovered —or invented—such a [Privacy] right from the ‘emanations’ and ‘penumbras’ of rights found in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.” He then morphed this critique into an invasion of the sacrosanct family by noting how, after the institution of marriage was thereby elevated, it was inevitable that the privacy-right would extend to other facets of conduct (including, famously, Roe). He saw dire cultural implications arising from such erosion of values; “homosexuality” was OK, but related-”acts” weren’t.
Basically, I could accept/respect his views under the aegis of diversity, but now I’ve been reduced to a tenuous posture of (1)—Having key-questions awaiting his cogent response; (2)—Having hope that his views are greatly outnumbered; and (3)—Having confidence that his implementation-ideas are not particularly risqué. These are worth exploring, inasmuch as it’s easier to anticipate ultimate responses by first noting what he’s written.
Although, as a senator, he has applied moral principles when assessing secular issues, opportunities that might arise to promulgate legislation that might invite him to apply the above viewpoint could prove unnerving. Thus, it is necessary to confront this problem. In his book (page 238), he unambiguously called for Roe to be overturned (unlike both newest SCOTUS Justices, during their confirmation hearings) because it is necessary to “right our moral ecosystem.” He correctly attacked excess judicial activism, but he wrote that it was this type of battle that portended ongoing disputes over judicial nominations.
He correctly condemned the politicization of the bench (which both parties have done), so it’s preferable to focus scrutiny on the correlation between allegedly-aberrant acts and any potential societal impact thereof. In another more “positive” context, he argued that it is discriminatory NOT to fund myriad Charitable-Choice programs (page 105) because “Under the 1964 Civil Rights Act and subsequent acts, faith-based organization[s] are exempt from provisions that outlaw discrimination in hiring [because] Congress rightly placed a constitutional right (religious liberty) above an economic right (employment).”
This tacitly admits the existence of discriminatory practices, and then “blinks” at them. Also, this allows for Congress to enact future legislation that tightens such procedures. His ultimate view appears arbitrary and vulnerable, for he fears this: “Religious charities would then be required to hire people who do not share their mission or moral vision.” It sounds like he would like to apply a belief-based litmus test to the hiring process, and it would be predictable that most Americans would recoil against such a conceptualization.
Santorum’s Views, Synthesized
So, as well-considered as are his views, it would be necessary to ask him to weigh the ability to limit all facets of government (a libertarian viewpoint, which conservatives predictably support). If Charitable-Choice is to be supported, would he endorse placing employment-process restrictions upon such appropriations, as would seem desirable? But if judicial activism is to be curtailed, then would that not also apply to Congress? And if Federalism can “slice both ways,” the 10th Amendment surely affords people SOMETHING tangible. Once he defines ANYTHING to which it refers, other ideals can then be appended (just as physicians use FDA-approved drugs for unapproved reasons, once the agents have entered the marketplace). These are not such esoteric queries that the responses thereto cannot be appreciated by a reasonably-educated unbiased voter.
The Court’s Scalia/Thomas “wing” harbors baseline views that may grate the intellect (e.g., pining to apply Original Intent), but its votes are reasonable (e.g., eminent domain). Similarly, a seemingly-fine philosophy can yield gaping errors (e.g., eminent domain). So reliance on knowing a Justice’s basic approach may not be so broadly applicable, but it remains the sum-total of whatever is “knowable” about the judicial mind. Therefore, particularly when probing a national figure, detecting tendencies to “legislate morality” emerges as a worthwhile avenue of avid pursuit. Therefore, if Santorum feels that judges now inappropriately legislate from the bench, he must apply his standards disinterestedly.
Regarding the politics of the situation, I believe the consensus is that there are not yet five votes to overturn Roe, so I will try to assume all the players enter the stage with a relatively transparent set of motives. Thus, I will try to show why the 10th Amendment provides incontrovertible support for the existence of a right-of-privacy to individuals. To summarize, it must be noted that Santorum perceives a link between decadence manifest by individuals and the potential to develop a morally-corrupt American society. Yet, no where in the book does he cite proof of this theory which surely isn’t axiomatic. Until he can, he must not interfere with those who enjoy exercising their “privacy.”
Griswold, Analyzed Previously & Challenged
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=381&invol=479
It’s always fun to read the dissent first; its opener is stunningly unknown to many people:
[T]he law is every bit as offensive to me as it is to my Brethren of the majority and my Brothers Harlan, White and Goldberg who, reciting reasons why it is offensive to them, hold it unconstitutional. There is no single one of the graphic and eloquent strictures and criticisms fired at the policy of this Connecticut law either by the Court’s opinion or by those of my concurring Brethren to which I cannot subscribe - except their conclu-sion that the evil qualities they see in the law make it unconstitutional.
Then, Black’s dissent notes that the challenged conduct entailed more than exercise of freedom of speech (which is true) and that rights-to-privacy contained in the other cited “Bill of Rights” clauses were each specific to a particular topic (which is also quite true). Thematically, he recoils when subtle effects of word-substitution subvert original intent AND reasonable application of a given concept. (This is an admirable posture to adopt.) Then, attacking the “due process” argument, he condemns encroachment of the Court upon what is legislative turf, namely, discerning the appropriateness of any legislation; it’s not felt to be the Court’s role to discern if it is “arbitrary, capricious or unreasonable.” (Correct.) And he fears undisciplined invoking of the 9th Amendment would yield the over-empowerment of the Court: “Use of any such broad, unbounded judicial authority would make of this Court’s members a day-to-day constitutional convention.” (I agree.)
The 9th Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) and 10th Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) unambiguously define the fact that people have definable rights that cannot be affected by government(s). Although there is a certain back-and-forth regarding the risks associated with invoking the 9th Amendment too broadly, there is no such discussion of the 10th Amendment.
To me, the distinction is vital. Whereas the 9th might befit the Hamiltonian concern with having any type of the Bill of Rights (“Why define what need be retained, when no Constitutional effort has been promulgated to intrude, for this only invites mischief?”), the 10th carries no such risk, for it specifically integrates major levels of government when creating this tiered “left-over” right. In other words, whereas the 9th seems to be allowing the populace to have rights “by default” (lest they be denied or disparaged), the 10th constitutes a positive/assertive affirmation that powers “survive” all government. Thus, because there is no constitutional provision (federal or state) that empowers the government to invade privacy, no law (federal or state) can constitutionally do so.
Kindly provided by one pal was a précis of both the majority opinion(s) and the impact of the 10th Amendment (which I hadn’t known was being raised more recently in newer challenges to Roe, presumably based on concepts related to interpreting “federalism”):
Re: 10th Amendment. Please, Bob. Of course there’s an attempt to do an end run around Roe and Griswold by holding up the 10th Amendment. The real agenda is that maybe the new members of the Court will use this excuse to overrule precedent. It’s a “Hail Mary” play (and I’m sure there will be others down the pike if this one doesn’t succeed). Not buying it.
Justice Douglas wasn’t an ignoramus, you know. This is exactly what I mean by disrespect for American jurisprudence. There are several rights and powers that most Americans take as given that aren’t specifically enumerated in the Constitution but have been enshrined in our understanding of it through careful and consistent judicial interpretation over the years, decades, centuries, even. The Court held in Griswold that in order to give meaningful effect to certain enumerated rights in the First, Third, Fourth and Fifth Amendments, it was necessary to imply a right of privacy. Brennan and Harlan found support for this right in the Ninth and Fourteenth Amendments, respectively. It’s not a blanket right. Griswold applied only to privacy within the marriage relationship. Other cases (Stanley, Eisenstadt, Roe, Lawrence) have addressed privacy in other contexts. Some are more clearly related to rights explicitly enumerated by the Framers. Others are less so. If the job of the Supreme Court was merely to peruse a copy of the Constitution and discern whether certain words appear there, any reasonably bright high school student would be qualified to sit on it. And if we start down that slippery slope to stark literal interpretation, well, let’s begin with the Second Amendment, which nowhere grants anyone other than state militias “the right to bear arms.” Or how about the Commerce Clause, which delegates “the power to regulate Commerce” to the federal government, but has been expanded way beyond any narrow literal meaning of that phrase (to as much wrangling and posturing as the privacy issue has).
She also provided a Link that summarized two new cases arising, based on the following rationale: “Under the 10th Amendment, South Dakota and Mississippi have the authority to exercise powers that are not delegated to the United States under the Constitution.” Further, “The Constitution does not specifically mention a right to privacy, therefore the decision to protect this right is left to the states or the people under the 10th Amendment. Even if the Constitution did protect a right to privacy, the abortion decision does not come under a right to ‘privacy.’ Under current law, the state retains some authority in making laws prohibiting abortions later than the first trimester of pregnancy.” This is from the Bill of Rights Institute [http://www.billofrightsinstitute.org/default.htm]. Griswold, Analyzed Newly via the 10th Amendment
Because Inductive reasoning is just as potent as Deductive reasoning, it can be applied effectively to define (unambiguously, based on original intent, not subject to discretion) what might be defined as privacy, namely what hasn’t been subsumed (“usurped”) by the politicians who would otherwise be tempted to regulate lifestyles to comport with their images of how culture should evolve (without overspending America’s “ethical capital”).
Proving the theorem works for the integer “1” (a starting-point) is quite straightforward. Reorganizing it (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”), it becomes more succinct (“The powers not delegated to the United States by the Constitution are reserved to the States, and the powers not prohibited by the Constitution are reserved to the people.”). Then, deleting the (former) “Federalism”-facet thereof (correlating with the three major ways the Court has invoked it: Federal Taxing Powers, Police Power and Regulations Affecting State Activities and Instrumentalities), the key controlling (latter) phrase emerges (“The powers not prohibited by the Constitution are reserved to the people.”). Privacy rights, not prohibited by the Constitution, exist. Retooled in a formal fashion, it is clearer (There is at least one power that is “private.”).
Proving the theorem works for any “n + 1” if it is assumed to work for a given “n” (a movement-point) is easier. Once one privacy-type is defined (contraception), another can be derived generically (abortion) if the Constitution is also silent in its regard. QED. PRIVACY EXISTS! And such an argument is not vulnerable to any published dissent!!! Having drawn this conclusion, it is now necessary to apply it to Santorum’s postures.
Griswold, New Analysis Rebutted
First, a pal turned-around my desire to invoke the 10th Amendment by advising that the challenges to Roe use the following expanded-argument (counter-pointing mine):
The 10th Amendment says that those powers not delegated by the Constitution to the federal government are reserved to the states (unless prohibited by the Constitution); (B) the power to regulate when, how and if a pregnancy may be terminated is not delegated to the federal government and is therefore reserved to the states, absent some explicit Constitutional prohibition; (C) there is no such explicit prohibition, nor is there any general right enumerated in the Constitution (e.g., a right to privacy) that would be violated by state restrictions on the termination of pregnancy; and (D) therefore the states retain their power to regulate abortion at they see fit. [Compare and contrast the right of the states to allow the ownership of slaves (the same analysis would apply but for the 13th Amendment, which is explicit). Or to determine who may and may not vote based on race (ditto, but for the 15th Amendment), etc. Or to permit the sale of alcohol within their borders (ditto, but for the 18th Amendment, repealed by the 21st which restored that right).] Initially, I thought I’d met my Waterloo. Then, I noted she was unjustifiably adhering to the “federalism” component of the 10th Amendment, despite efforts to compartmentalize it…and to allow delegation of definable rights (“privacy”), therefore, to the PEOPLE. Weigh the (seemingly ignored, even by Findlaw.com) non-government conceptualization that the plain language of the 10th Amendment harbors, and recognizing that one exists yields the validation of my inductive-reasoning model, producing a Privacy-Right.
It is not necessary to perceive state-governments as the solitary endpoint of discussion. States are not mandated to subsume all powers available thereto and, in that instance, such a “sound of silence” definably defaults to the INDIVIDUAL CITIZEN who, in the contemporaneous-at-the-time Jeffersonian conceptualization, necessarily—based on the types of “natural law” that motivated the framers—was the final-common-denominator whenever a government was formed that aspired to do far more than to “confederate.” Stated more succinctly, even if certain powers are there for the picking, the states need not have taken the bait. Empowerment of the public then benefits the Commonweal.
The anticipated counter-argument would be (within my context) that states could, instead, choose to monopolize all possible rights related to abortion-regulation…and then ban it regardless of whatever power the feds might ever be able to muster. And the absence of such protection would be fatal to the ability to express such privacy-rights. Yet, this is based on the assumption that the federal government has not assumed responsibilities with regard to abortion. [The specific quote supra is: “(B) the power to regulate when, how and if a pregnancy may be terminated is not delegated to the federal government and is therefore reserved to the states, absent some explicit Constitutional prohibition.”]
The absolute counter-example to this postulate is the fact that Congress has, indeed, legislated in this field and, thus, the states can’t claim it. For example, funding for any abortion performed on a military base must be borne by the patient, not the government. Thus, since abortion-regulation has been enacted by the federal government, the states can’t stake a “claim” based on this notion, and they can’t invoke the 10th Amendment.
I recognize I’m fencing with an attorney who deals with this issue on a day-to-day basis. Nevertheless, my argument appears to emerge as controlling. There are multiple cites from multiple opinions stating that each sentence in the Constitution must have meaning and, thus, the latter phrase of the 10th Amendment must have applicability, somewhere.
I claim that its existence was intended to (and conclusively does) define a Privacy-Right that is harbored by the People, one that affords the libertarians the capacity to fend-off intrusions based—in particular—upon improper imposition of purely-moral edicts…and one that affords the American People a Constitutionally-protected sense of Privacy.
How it is applied—whenever judges deign to balance rights and responsibilities—this is not at-issue, nor need it be defined in order to ensure that this key “pole” in the debate has been established. Let the tug-of-war begin (even with a particularly taut rope), but with knowledge that any competing forces must constantly address that individualized black-box which is harbored in the soul of all American Citizens, indeed, of all humans. Griswold, New Analysis Re-Rebutted
Here is the initial response to my argument (although much of what appears supra was composed—to simplify this memo—after the e-mailed commentary now to be reprinted):
The pivotal statement in your argument is: "Thus, because there is no constitutional provision (federal or state) that empowers the govern-ment to invade privacy, no law (federal or state) can constitutionally do so." That's sort of the opposite of what the 10th Amendment says.
First of all, the 10th Amendment says nothing about state constitutional provisions. It only refers to the U.S. Constitution. That aside, it says that you begin from the premise that the states can do whatever they like, regulate whatever they like, prohibit whatever they like, and then you start imposing limitations. But not too many limitations. (Remember that the intention of the 10th Amendment was to protect the states from encroachment upon their sovereignty by the federal government, not to limit their power.)
So what limitations are permissible? Only those that the Constitution either (a) delegates to the federal government or (b) prohibits to the states. So in any Constitutional challenge to a state law, the first question is: Does it infringe upon a power delegated to the federal government by the Constitution (e.g., the regulation of immigration into any part of the country) and the second question is: Does it embody an exercise of power that's prohibited by the Constitution (e.g., establishing a state religion). Those are two clear examples.
The abortion and contraception issues, of course, are much less clear, and thus required interpretation of the Constitution by the federal courts, which under the Constitution have the last word on that subject. What is clear, however, is that they fall into the second line of inquiry. The issue isn't whether the Constitution delegates to the federal government the power to regulate abortion. (It doesn't.) It's whether the Constitution prohibits the states from criminalizing abortion. The Court's answer is currently yes (with certain qualifications), because such state legislation would infringe on the Constitutionally-guaranteed right to privacy, implicit in the Bill of Rights and/or the 14th Amendment.
Again, the intention of the 10th Amendment was to protect the states from encroachment upon their sovereignty by the federal government. By itself (i.e., in the absence of a delegation or prohibition elsewhere), it's never an argument for restricting state authority but only for preserving it.
My view survives this analysis, for it uses the totality of the 10th Amendment (regardless of its intent); operationally, the states are sandwiched between the feds and the people. |
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To contact me--Robert B. Sklaroff, M.D.--just send an e-mail (rsklaroff@comcast.net).
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