Scalia’s Problem
Recently, Justice Antonin Scalia shot his mouth off about another bit of “social” judicial opinion and managed to be correct to a fault again. Here is the article. Basically, he is of the opinion that if a specific term or phrase does not appear in the Constitution, then that subject is simply not covered. Most famously, this goes to the continuing argument over privacy. There is, by Scalia’s reasoning (and I must add he is by no means alone in this—it is not merely his private opinion), no Constitutionally-protected right to privacy. As far as it goes, this is correct, but beside the point. The word “private” certainly appears, in the Fifth Amendment, and it would seem absurd to suggest the framers had no thought for what that word meant. It refers here to private property, of course, but just that opens the debate to the fact that there is a concept of privacy underlying it. The modern debate over privacy concerns contraception and the first case where matters of privacy are discussed is Griswold v. Connecticut, 1965. That case concerned the right of a married couple to purchase and use contraception, which was against the law in that state (and others). The Court had to define an arena of privacy within which people enjoy a presumed right of autonomous decision-making and into which the state had no brief to interfere. Prior to this, the Court relied on a “freedom of contract” concept to define protected areas of conduct. Notice, we’re back in the realm of property law here. People who insist that there is no “right to privacy” that is Constitutionally protected seem intent on dismissing any concept of privacy with which they disagree, but no doubt would squeal should their own self-defined concept be violated. Therein lies the problem, one we continue to struggle with. But it does, at least in Court tradition, come down to some variation of ownership rights—which is what has made the abortion debate so difficult, since implicit in it is the question of whether or not a woman “owns” her body and may therefore, in some construction of freedom of contract, determine its use under any and all circumstances. [More . . . ]