Justice Stewart said "general right to privacy" precisely to
distinguish the right from a more limited constitutional privacy right:
"The Court says it is the right of privacy 'created by several
fundamental constitutional guarantees.' With all deference, I can find no
such general right of privacy in the Bill of Rights, in any other part of
the Constitution, or in any case ever before decided by this Court. [FN7]
FN7. Cases like Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d
231, and Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d
480, relied upon in the concurring opinions today. dealt with true First
Amendment rights of association and are wholly inapposite here. See also,
e.g., NAACP v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d
1488; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697.
. . ."
Moreover, a few paragraphs before Stewart mentioned some
constitutional rights that might be seen as securing more limited
constitutional privacy rights:
"As to the First, Third, Fourth, and Fifth Amendments, I can find
nothing in any of them to invalidate this Connecticut law, even assuming
that all those Amendments are fully applicable against the States. . . ."
So I understood Stewart as saying that there's no "general right of
privacy" that goes beyond the privacy rights secured by the First Amendment
right of anonymous association, the Third Amendment, the Fourth Amendment,
and the privilege against self-incrimination. I would assume that Thomas is
saying the same today, though of course that's only a guess.
Eugene
> -----Original Message-----
> From: Mark S Kende [mailto:[EMAIL PROTECTED]
> Sent: Thursday, June 26, 2003 4:09 PM
> To: [EMAIL PROTECTED]
> Subject: Re: Thomas on privacy
>
>
> 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)
>
