Stupid and/or ill informed comments make me angry.* I have read more than my fair share in the last few years given my addiction to online opinion sources, but stupid comments -- especially from alleged experts -- still piss me off now and again. This is true even when I read the same old thing over and over again. I guess it's just a pet peeve. Such was the case by a NYT editorial by Robert George, "a professor of jurisprudence" attacking the privacy jurisprudence of the Supreme Court. The column was simply put, full of shit. Such was my immediate reaction.
Who is this "professor of jurisprudence?" I did a Google search, and an early hit was an interview with National Review with such comments as: "Even if we were to credit Michael Schiavo's account of his conversation with Terri before her injury Â? which I am not inclined to do" etc. (i.e., we cannot trust a spouse to make such decisions, conservative moralists should). Ironically, he also received a "Justice Tom C. Clark Award." Justice Clark wrote a law article after leaving the bench that applied Griswold, which he supported, to the abortion situation. In other words, George got an award in the name of someone who supported the ideals harshly dealt with in the editorial. Oh, yeah, he also got an award from the conservative/libertarian Federalist Society.
Many libertarians sympathetic to or even members of the Federalist Society are strong supporters of a "right to privacy," though they might phrased it differently. Therefore, it is not only "especially" honored by "liberal circles." Such libertarians (see, e.g., the Cato Supreme Court Review series) will point out to various constitutional basises for the right. They will explain the historical basis of such a view. And, surely, they would remind the fair professor of the Ninth and Tenth Amendments that secure to the people rights and powers not expressly enumerated in the Constitution. But, such provisions are only useful to make specious state immunity arguments, I guess. After all, limited government is not productive for those supportive of morality from above and strong executive power.
The column is honest enough to directly target Griswold v. Connecticut, which struck down a law banning use of contraceptives for marry couples (more specificallyy, sale to them). Prof. George "elicit[s] derision" from its ill-advised turn of phrase that "penumbras, formed by emanations" of various amendments protect marital privacy. He fails to note that Justice Holmes used the term "penumbras" in a similar sense, as a means to note that constitutional provisions bring with them a sort of shadow, additional powers or securities that are necessary to give them life. The overall principle is pretty uncontroversial, especially by those who are strong advocates of executive power. The addition of "emanations" may sound particularly law professorish, but Prof. George of all people shouldn't mind.
He notes the opinion was 7-2, not mentioning two of those votes (Clark and Harlan) were judicial conservatives, three if one wants to add Justice White (conservative in various ways, dissenter in Roe). He also ignores how Justice Harlan in particular referenced an early opinion in which the law was opposed as a violation of due process principles that developed since the late 19th century. And, no, not just in the infamous Lochner opinion of which Prof. George's spirtual ancestors probably concurred. One such strand protected sending children to private/religious education as compared to mandated (progressive) public school education. The cases also reminded us that "liberty" included broad power over marital life and how one raised one's family. It is not really silly to assume this applied to controlling family size.
But, apparently, the problem was that such cases overall did not really directly touch upon "sexual conduct." Do they have "anything" to do with that subject? Um yes. For instance, various cases protected sexually themed speech. Some cases specifically spoke of the privacy of the home, a privacy in place so that people can enjoy private familial activities, such as you know a sex life. Past restrictive laws often targeted associations that dealt with sexual topics. And, the right against self-incrimination is particularly valuable in sensitive areas, such as (you know what). One might even add the common law principle that a wife cannot testify against one's husband.
Prof. George takes a swipe at substantive due process, ignoring the history of the term, which includes protection of certain liberties that are so fundamental that they can never be justly the "law of the land." He challenges Roe's "sweeping" protection of this provision to abortion, ignoring its citations that spell out why precedent protected it in comparative situations. [Again, for those who did not actually read these opinions or are ignorant of history, it's a lot easier to nod in agreement with moronic commentary.] And, adds some declarative statements that assume no rational reason can be supplied to separate abortion from the likes of prostitution and polygamy.
He ends with the same old bullshit that the opposition does not simply have a different judicial ideology or interprets the Constitution in a different way. No, it "is simply the moral and political opinions of the justices" that compels the results. This libel is as wrong as it is tiredly predictable. I don't agree, so the other side must be guided by irrational or extralegal motivations.
This is the mentality of a five year old. So, I guess I shouldn't be too angry at them ... they don't know any better.
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* This also applies to actions generally. I was truly pissed when an apparently (I did not see it ... but the announcers repeatedly made the point, and they are generally fair) miscalled out was made in a key situation in the beginning of yesterday's Braves/Mets game. The hit would have brought the team back to 3-2 and easily could have been a momentum changer. Instead, Andruw Jones -- who Mets fans love to hate, but is the MVP of the Braves team this year -- of all people (he's an excellent fielder -- he doesn't need help) got the benefit of the call. Catch, not trap.
The hit (or sorry, out) was by Mike Piazza, fan favorite, who was pissed. I'll tell you what I wanted: I wanted the Mets' manager to debate that call so much that an ejection was at least possible. The team deserved it, and given the rivalry and recent losing ways, it needed it. But, no, not Willie. The team went on to lose 7-5, though it won today, a rare series win vs. the Braves (though the Mets do manage not to suck when they play them in NY).