The disagreement I have with Ilya's most post below is at two levels. First, I think Thomas' statement in Lawrence that there's no "general" right to privacy should not be read to mean Thomas thinks there is some more limited constitutional privacy right, as Ilya charitably suggests. That would not explain Thomas' reliance on Stewart in Griswold. Moreover, Thomas' textualist emphasis in Lawrence further supports my interpretation (he can't "find" the right in the Constitution -- the word privacy isn't there).
Second, if Ilya's right that Thomas believes the Constitution protects privacy in marriage and in other "traditional" contexts (based on Thomas confirmation testimony), where does Thomas get these beliefs but from some kind of generalizable privacy principle? (which Thomas seems to be denying exists in Lawrence despite saying it existed at confirmation). As to Eugene's post that Thomas essentially may have developed different views over the last dozen years and that we shouldn't expect a Court nominee to have well honed perspectives on every issue, that doesn't make sense to me given the post-Bork timing of the Thomas hearing and other information that has come out about Thomas' views. Mark On Thu, 26 Jun 2003, Ilya Somin wrote: > 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 > > > Mark Kende Professor of Law University of Montana School of Law Missoula, Montana 59812 406-243-4317 (phone) 406-243-2576 (fax)
