Ilya Somin writes: "Thomas may believe that Pierce, Meyer, Griswold, etc., are OK, because they protect the traditional family from state intrusion, while Lawrence is not because anti-sodomy laws (which he finds objectionable for other reasons) do not harm the family in the same way."
Thomas' opinion in Troxel supports this characterization of his views. There he was the only justice, apparently on precedential grounds, would have applied strict scrutiny to protect the mother's parental right to control the child's visitation. Scalia would have held the mother had no fundamental right to parent. None of the other justices, O'Connor included, applied strict scrutiny. Thomas writes "Our decision in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), holds that parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them. The opinions of the plurality, Justice KENNEDY, and Justice SOUTER recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights." although he includes the caveat which leaves the door open for a reconsideration of the existence of unenumerated rights. "I write separately to note that neither party has argued that our substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights under that constitutional provision." yb ********************************************* Professor Yvette M. Barksdale Associate Professor of Law The John Marshall Law School 315 S. Plymouth Ct. Chicago, IL 60604 (312) 427-2737 (email:) [EMAIL PROTECTED] ***************************************************** > ---------- > From: Ilya Somin[SMTP:[EMAIL PROTECTED] > Reply To: Discussion list for con law professors > Sent: Thursday, June 26, 2003 6:38 PM > To: [EMAIL PROTECTED] > Subject: Re: Thomas on privacy > > I think Mark's first point is answered by Eugene's Stewart post. Stewart > (and Harlan, by the way) believed that there are limited privacy rights in > particular contexts, though not a general right. Ditto (or so it seems) > for Thomas. > > As to WHY Thomas believes in a limited privacy right (Mark's second > point), I obviously can't know for sure. However, I'm not convinced that > "a generalizable privacy principle" is Thomas' only option, as Mark > suggests. Maybe instead Thomas has a "generalizable family rights > principle" (with family defined in a "traditional" manner). Particular > types of privacy may be protected for reasons that have nothing to do with > any general value of privacy, but everything to do with the supposed > importance of particular types of privacy for the advancement of other > values. Thomas may believe that Pierce, Meyer, Griswold, etc., are OK, > because they protect the traditional family from state intrusion, while > Lawrence is not because anti-sodomy laws (which he finds objectionable for > other reasons) do not harm the family in the same way. > > Obviously, I could be wrong and maybe Thomas has some entirely different > view (though the above seems consistent with other things we know about > him). But what seems clear to me is that there are many different possible > rationales for constitutionalizing particular types of privacy protections > and "a general right to privacy" is only one of them. > > Ilya > > On Thu, 26 Jun 2003, Mark S Kende wrote: > > > 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) > > >
