Saturday, July 14, 2018

Operation Shock and Kavanaugh

Go on to Parts Three (Gideon v. Wainwright), Four (Griswold v. Connecticut), and Five (Boerne v. Flores) at the links.

For those with short attention spans, the TLDR can be summarized as follows: in Griswold, Wikipedia notes famed liberal jurist William O. Douglas doing what conservatives have come to loathe: interpret the Constitution for the current times rather than "following" it as the Founders (and those who amended it in later years) wrote and -- they believe -- intended it to mean.  The term they favor is 'strict constructionism'.

Although the Bill of Rights does not explicitly mention "privacy", Justice William O. Douglas wrote for the majority that the right was to be found in the "penumbras" and "emanations" of other constitutional protections, such as the self-incrimination clause of the Fifth Amendment. Douglas wrote, "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship." Justice Arthur Goldberg wrote a concurring opinion in which he used the Ninth Amendment in support of the Supreme Court's ruling. Justice Byron White and Justice John Marshall Harlan II wrote concurring opinions in which they argued that privacy is protected by the due process clause of the Fourteenth Amendment.  

For those non-attorneys and law students reading here, Griswold was the precedent for many other cases ... including Roe v. Wade.

So as disclaimer, I'm not a lawyer or a law student so I'm certainly not teaching or interpreting law here; just trying to understand the motivations and rationales of those that are.  Former Senator and member of the Judiciary Committee Al Franken has some questions he would ask the nominee if he were still serving; perhaps some of his once-peers might take them up in September, when Chair Grassley indicates confirmation hearings might begin.  Mitch McConnell has indicated the full Senate will vote before October ... just as we all begin to focus on the midterm elections, which might influence turnout to some degree.  On both sides.  (Understatement?)

No comments: