Griswold v. Connecticut, 381 U.S. 479 (1965) (USSC+)

Russell Turpin
Thu, 06 Mar 2003 00:29:13 +0000

>>In my opinion, Ashcroft is due for yet another Supreme Court smackdown.

John Hall:
>I didn't think he had lost one yet.

He's had his feet cut out from under him a couple
of times. I remember cheering at the news, but
would have to research what the cases were. Wasn't
he AG when the Supreme Court decided against the
virtual porn restrictions in COPA II?

John Hall, quoting findlaw:
>"In this case [Griswold - jmh], both opinions seemed to concur that the 
>fundamental right claimed and upheld was derivative of several express 
>rights and in this case, really, the Ninth Amendment added almost nothing 
>to the argument."

I am no lawyer, but that interpretation seems
prima facie contrary to the text of Goldberg's
concurring opinion. Here is an excerpt of the
opinion itself.

[Begin Excerpt.]

"I do agree that the concept of liberty protects
those personal rights that are fundamental, and
is not confined to the specific terms of the Bill
of Rights. My conclusion that the concept of
liberty is not so restricted and that it embraces
the right of marital privacy though that right is
not mentioned explicitly in the Constitution is
supported both by numerous [381 U.S. 479, 487]
decisions of this Court .. and by the language
and history of the Ninth Amendment. In reaching
the conclusion that the right of marital privacy
is protected, as being within the protected
penumbra of specific guarantees of the Bill of
Rights, the Court refers to the Ninth Amendment,
ante, at 484. I add these words to emphasize the
relevance of that Amendment to the Court's
holding. ..

"The language and history of the Ninth Amendment
reveal that the Framers of the Constitution
believed that there are additional fundamental
rights, protected from governmental infringement,
which exist alongside those fundamental rights
specifically mentioned in the first eight
constitutional amendments. .. The Amendment is
almost entirely the work of James Madison. It
was introduced in Congress by him and passed the
House and Senate with little or no debate and
virtually no change in language. It was
proffered to quiet expressed fears that a bill
of specifically enumerated rights could not be
broad to cover all essential [381 U.S. 479, 489]
rights and that the specific mention of certain
rights would be interpreted as a denial that
others were protected. ..

"While this Court has had little occasion to
interpret the Ninth Amendment, '[i]t cannot be
presumed that any [381 U.S. 479, 491] clause in
the constitution is intended to be without
effect.' Marbury v. Madison. In interpreting the
Constitution, 'real effect should be given to
all the words it uses.' Myers v. United States.."

[End Excerpt. Link follows.]

What have I argued, except what Justice Goldberg
writes in this opinion?

>>The Constitution is meaningless if there is no
>>effective mechanism for its interpretation.

>We aren't arguing that. We are arguing whether the court must consciously 
>restrict its decisions
>to the text and what the text meant at the time it was written ..

I'm not sure what THAT means. I know of no one
who claims to have rigorous and complete semantics
for legal documents. Note that this isn't even
the case for most programming languages. Common
languages such as C++ lack a fully formal semantics
and include areas of nonspecified behavior that
will vary from compiler to compiler. In any case,
the Constitution does not come with rigorous
semantics that is logically complete, nor even a
reference implementation. Hence, the meaning HAS
to be worked out on an ongoing basis.

The Supreme Court makes significant rulings
precisely in those cases where this is required.
Where the explanation to date is already adequate
and clear, the lower courts are expected to apply

>As an example, I'd freeze "cruel and unusual" to the meaning as understood 
>in the 1790s.

Again, I'm not sure what that means. Does it mean
that nothing done in the 1790s that the courts
didn't then rule "cruel and unusual" (after being
so challenged?) could now be so ruled? But what
about questions that didn't exist then? Or
practices that simply were never challenged, since
courts can rule only on cases presented to them?
Or does it might mean that a 1790s view, somehow
defined, should be applied to current society,
with its vastly different material circumstance
and knowledge? An 18th century "reasonable man"
who then thought it appropriate to punish someone
made predatory by a brain tumor likely would have
a change of mind once he learned that there is an
organic, demonstrable cause of the behavior that
was surgically correctable:

Let me be clear that I am NOT one who wants to
coddle criminals. I think the UK made a mistake
when it recently rescinded capital punishment for
pirates and traitors. Wapping Point, alas, is now
just a tourist attraction. I'm just questioning
what seems to me an overly simplified notion of
how the Constitution might work.

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