Conservatives Suddenly Discover a Right to Privacy

Conservatives Suddenly Discover a Right to Privacy July 1, 2016

For more than 50 years now, the right wing has raged against the idea that there is any such thing as a right to privacy in the Constitution. It began with Griswold v Connecticut (1965), which found that married couples had a right to purchase contraception. Now suddenly they love that right to privacy. Here’s the Heritage Foundation:


Ian Millhiser points out the rather obvious hypocrisy:

Although Heritage’s tweet concerns the ongoing battle over whether the state should dictate which bathroom transgender people use, it is grounded in a much older fight. The notion that the Constitution protects an unenumerated “right to privacy” forms the basis of many of the Supreme Court’s decisions protecting sexual freedom and bodily autonomy. In Griswold v. Connecticut, a decision Heritage previously criticized as “activist” because it created “a ‘right’ not found anywhere in the text of Constitution or our nation’s laws and traditions,” the Court held that a right to privacy protects married people who wish to use contraception. More recently, in Roe v. Wade, the justices clarified that this privacy right is “founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.”

In the past, Heritage also has not been especially complimentary towards Roe v. Wade.

Another organization that, in the past, has disparaged Roe and the right to privacy that it rests upon is the Alliance Defending Freedom (ADF), the largest and most prolific legal organization advancing a conservative Christian agenda in the nation. “I hope you and your family will join me in praying for a speedy end to the horror of legalized abortion in America,” ADF president Alan Sears wrote in 2015. Earlier this month, ADF criticized the right to privacy that forms the backbone of decisions like Griswold and Roe as “invented.”…

“There is no right to privacy, no generalized right to privacy,” the late Justice Antonin Scalia announced in a 2012 interview. When interviewer Chris Wallace pointed out that the Supreme Court said otherwise in Griswold, Scalia replied “indeed it did, and that was — that was wrong.”

Similarly, Judge Robert Bork, the failed Supreme Court nominee who is still spoken of by many conservatives as if he were a martyr who died on a cross for their sins, labeled Griswold “an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right.” Heritage’s Edwin Meese, who previously served as attorney general under President Reagan, labeled the right to privacy “nonconstitutional.”

You see, there’s a constitutional right to privacy when they want there to be, and there magically isn’t one when they don’t want it to be. Call it Schroedinger’s unenumerated right.

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