No privacy | Week

Do you have privacy? The question that would make most Americans resent “I’m sure it is”. But nowhere in the Constitution did the Legislators use the word “privacy” or explicitly state any support for “my body, my choice.” Privacy is an invention of the Supreme Court. Until Griswold’s decision in 1965, states could ban anyone – including married couples – from using contraception. Until the 1967 Love Affair decision, states could jail people for marrying someone of a different race. Until Lawrence’s ruling in 2003, states could arrest gay men – or straight couples – for engaging in “gross” in their own bedrooms. Griswold is the big turning point. In that ruling, Justice William O. Douglas wrote that “the omission” and “arrogance” of the protections actually enshrined in the Bill of Rights created an implicit “privacy zone” which the government cannot infringe. This concept became the foundation of Roe v. Wade in 1973, with five Republican appointees with a 7-2 majority. But what the Supreme Court gives, it can take away. The “original” judges now largely deride Douglas’ “penumbras”, and do not believe that privacy rights exist. During recent debates over abortion law in Mississippi, Justice Brett Kavanaugh said that because the Constitution does not address abortion, Roe may be omitted, and each state can decide whether women are required to have a full-term pregnancy. Under primitivism, courts could reverse Griswolds and allow states to ban contraception. (Some religious groups consider the pill and IUD to be the “abortion pill.”) The Constitution also does not allow interracial marriage and does not guarantee that you can engage in sexual acts that your neighbors do not approve of. Same-sex marriage? Sorry, not even in the Constitution. If precedent carries no weight, privacy becomes a condition for popular consent. And what you can and cannot do depends to an astonishing extent on what five of the nine Supreme Court justices think, believe, and feel.

This is the editor’s letter in Current problem belong to Week magazine. No privacy | Week


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