Republicans v. Griswold

One of my favorite Supreme Court cases to talk about is Griswold v. Connecticut (and I always enjoy making “National Lampoon’s Vacation” jokes when I do) this 1965 case found a right to privacy in the Bill of Rights (correctly, I believe) based on the totality of our protections and the idea that it is basically abhorrent that the government should be able to tell you that you cannot use birth control.  In fact, the Connecticut law involved prevented married persons from purchasing birth control (a later decision extended this principle to all persons).  I’ve yet to have a student argue that this case was wrongly decided.  Yet, Griswold is somewhat ripe for political contreversy, as, in many ways, it provides the key philosophical underpinnings for Roe v. Wade.  Nonetheless, generally speaking, even Republicans don’t attack Griswold (Americans do love their birth control– even Americans with 4 kids).

By way of that long preface, Jeffrey Toobin has  a nice piece in the New Yorker about Romney and Santorum taking on Griswold:

However, when pressed by George Stephanopoulos in the debate Saturday night, Romney went beyond mere opposition to Roe. He said he thought Griswold v. Connecticut, the 1965 case that first made explicit the right to privacy, was also wrong. “I don’t believe they decided that correctly,” Romney said. In this, the front-runner was eagerly seconded by Rick Santorum, who said the Justices “created through a penumbra of rights a new right to privacy that was not in the Constitution.”…

Roe has long been controversial, of course. But Griswold, largely, has not. For example, while John Roberts and Samuel Alito were cagey in their references to Roe in their confirmation testimony before the Senate Judiciary Committee, both of them readily embraced Griswold as a settled precedent of the Court. This is understandable. It is chilling to believe that the Constitution could allow a state to ban married couples from buying birth control. (A few years after Griswold, in a 1972 case called Eisenstadt v. Baird, the Court said states could not ban unmarried people from buying birth control, either.)…

And that is what makes Romney and Santorum’s criticism of Griswold so troubling. Over the years the modern Republican Party has reflected both libertarian and authoritarian tendencies. Both survive, in a way. When it comes to taxes and regulation, the libertarian side of the party is ascendant. Even the rhetoric of compassionate conservatism has faded from view. But with regard to civil liberties, the G.O.P. has embraced state power with a vengeance. Whether it’s the rights of wartime detainees, or abortion rights, or the rights of gay people to marry (or to be free from discrimination), contemporary Republican leaders reflect clear moral disapproval. (Even Ron Paul, who is often described as a libertarian, is a fierce opponent of a woman’s right to choose abortion. And Rick Perry recently announced that he’s against a right to abortion even in cases of rape or incest.) Privacy is often described as “the right to be left alone,” but that’s not a value that seems terribly important in the G.O.P. right now.

Anyway, I think that last paragraph above is a very important and much under-appreciated feature of politics these days.

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About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

6 Responses to Republicans v. Griswold

  1. Yes using your logic I should be able to sexually abuse my minor daughter in my own house and it should be none of your business. I am passionately against that as well as killing innocent unborn babies. Ironically enough, the libs have a law in place to protect unborn eagles. There is a $100,000 dollar fine and a 5 year prison sentence for destroying an eagle egg (an unborn eagle). And yet we make women god who decides if it is a baby or not. If I run into a woman with my car and cause her to lose the unborn baby I am charged with vehiclular manslaughter. If she elects to kill it through abortiion then it is not a baby. What happened to equal rights for all?

    John Wilder

  2. Steve Greene says:

    I’m only going to address the first sentence rather than wade into an abortion argument, and as far as my response to the first bit: mutually consenting adults.

  3. You say that you don’t want to get into abortion but you mentioned it numerous times in your blog post. Going back to the issue of privacy, the way that the Supreme court justices decided it and their vaunted right to privacy leaves it wide open for a man to claim the right to sexually abuse his daughter in his own home and he feeds her, clothes her and houses her.

    In fact there is an organization called NAMBLA

  4. who precisely argue this in their lobbying attempts to legalize sex between men and consenting minor boys.

    John Wilder

    • Steve Greene says:

      1) Abortion is a complex issue not amenable to a pithy comeback in a comment threat.
      2) “consenting” preceding “minor” doesn’t really mean much, legally speaking.

  5. You kidding me says:

    Popular opinion is irrelevant on wrongly decided legal logic applied cases. Griswold was wrongly decided. Santorum is correct. Supporting the 10th amendment does not mean you agree with banning contraceptives, you just feel states can, on an individual basis. This was also the law in the US prior to Roe regarding abortion.

    Judicial activism is always wrong, even when the intent is noble and even when the end result or proposed relief remedy is agreed as desirable.

    This is how we get hate crimes laws where a person kills somebody due to their racism when the issue is intent of with sound mind to kill and acting upon it, not their prejudices. Thrill killers have no reason to kill, we still give them the same penalties, and should.

    Why is it so hard for liberals and other uninformed people to get these simple facts?

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