Emanations: Strict Constriction II
The Roe Court followed a precedent set in a 1965 birth control case, Griswold v. Connecticut. Griswold is one of the most important cases on the question of judicial interpretation. The Connecticut legislature banned contraception--say what??!!! I kid you not: "A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception."
The Supreme Court ruled the ban on birth control violated the constitutional right of privacy and threw it out. Problem, said the strict constructionists. The constitution never even mentions the word 'privacy', so how can there be a right of privacy to violate?
Justice William Douglas, the most wild-eyed judicial activist ever to park his butt on the bench, ruled that the right of privacy was invisible in the actual text of the Constitution, but existed in the 'emanations from the penumbra' of the Bill of Rights. The emanations from the penumbra, I kid you not.
Shades of Castaneda. Was the judge on mushrooms? Actually, Justice Douglas’s ruling makes absolutely compelling sense. It’s the strict constructionists who make the hallucinatory argument that the U.S. Constitution allows the government to ban birth control.
Consider the 4th Amendment, prohibiting irrational searches and seizures. Now consider an inner city housing project besieged by drugs (pushers selling smack to kids, drug-related murders, pediatric AIDS, dirty needles on the street). To stop the drugs, can the police search every apartment in the projects without a warrant? No they can’t. The Constitution forbids it.
But why? If the cops find dope in your home, good! You’re a drug dealer, who cares about you? If the cops don’t find any drugs in your home, no harm, no foul, right? Wrong. The Constitution says there is a harm and a foul. But what is the nature of the foul? State intrusion, state aggression, control freak mentality, intimidation, totalitarian atmosphere. There is a psychological injury in having the state search your home without probable cause even if they don’t find any criminal evidence.
So why would the Constitution not allow the state to intrude into your home to search for terrible threats like drugs, guns, terrorists -- but allow the state to intrude into your bedroom to ask "Hey, what you doing with your private parts there? What's going on under those sheets?" That's like building a house with three sides to block out the wind. It's nonsense.
If the Founders didn't put in an explicit right of privacy, we know they did not mean to leave a gaping hole in liberty. We know a priori that the Bill of Rights is not an arbitrary set of rules. It's not a Milton Bradley board game where if you roll 2 you get a million bucks, if you roll 3 you go directly to jail. If a judge interprets the Constitution like it was Parcheesi, so as to destroy its internal logic in the name of strict construction, that judge is flat-out wrong. Honorable strict constructionists like those on the Burger Court have a distinguished record of protecting liberty again and again--and again and again. What the Far Right today calls 'strict construction' is bullshit.