Thanks to Keith for finding the relevant quotes. In answer to Mark, I think that Thomas meant (both at the hearing and possibly in Lawrence) not that protection of privacy is dependent on OTHER fundamental rights, but rather than some types of privacy are themselves fundamental whereas others are not. IN particular, the comments quoted by Keith suggest that the "fundamental" ones may be 1) privacy in marital and family relationships, and 2) forms of privacy that are recognized by "history and tradition". I'm not a big fan of this kind of vague approach myself, but it's not inherently inconsistent, and it certainly doesn't contradict Thomas' statements to the Senate.
As to Thomas' statement that "there is a right of privacy in the Fourteenth Amendment," this is not the same thing as saying that there is a GENERAL right of privacy. If some forms of privacy are protected by the Amendment, it doesn't follow that all are. Ilya Somin On Thu, 26 Jun 2003, Keith E. Whittington wrote: > At least according to a website selection (the accuracy of which I can't > guarantee), Thomas responded to a Biden question about abortion and privacy > by saying that "My view is that there is a right to privacy in the > Fourteenth Amendment," and elaborating when pressed about abortion rights > particularly that "The Supreme Court has made clear that the issue of > marital privacy is protected." He reinforced that later in the exchange, > noting "I think -- and I think the Supreme Court's rulings in the privacy > area support -- that the notion of family is one of the most personal and > most private relationships that we have in our country." Later, Thomas > suggested to Leahy that "the approach that Justice Harlan took in Poe v. > Ullman and reaffirmed again in Griswold in determining the right to privacy > was the appropriate way to go," (though the context here was a discussion of > the Ninth Amendment and why Thomas was critical of Goldberg) which Thomas > later emphasized restrains judges by being "tethered to our history and > tradition." He later endorsed Eisenstadt "on an equal protection basis." > > In Lawrence, Thomas quotes Stewart in rejecting a "general right to > privacy," (though admittedly, Stewart dissenting in Griswold when arguably > "marital privacy" was at issue). > > Though he rhetorically creeps up on it, I don't think Thomas in Lawrence is > at odds with Thomas in the Senate hearings. At the hearings, Biden talked a > lot about a general right to privacy and its myriad implications for > abortion rights and other issues; Thomas very distinctly did not, and Biden > clearly wasn't very satisfied at the time and thought Thomas at best had a > very cramped notion of constitutional privacy rights. I think the real test > on this question would have to come in a different case. > > Keith Whittington > > Keith E. Whittington > Associate Professor of Politics > Director of the Undergraduate Program > Corwin Hall > Princeton University > Princeton, NJ 08544 > www.princeton.edu/~kewhitt >
