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Political Rhetoric: The Right To Privacy And Roe

Josh Marshall writes:

Immediately after saying what a terrible decision Roe was, Palin got a follow-up question from Couric about whether she believes there's a constitutional 'right to privacy'. And Palin said, yes. Now, narrowly speaking, you can believe in a constitutional right to privacy and also oppose Roe. But the right to privacy, as Couric says in the interview, is one of the cornerstones of Roe. And in the public debate yes or no on the right to privacy is something pretty close to a proxy for your position on abortion rights.

This is wrong. Republicans and anti-Roe advocates learned from the Robert Bork experience - you acknowledge a right to privacy in the liberty clause of the 14th Amendment without conceding an inch on Roe. Anyone who watched John Roberts and Samuel Alito in their confirmation hearings should know this. Marshall has misread the new political rhetoric from the Right on this. The rise of Dred Scott as the dogwhistle on Roe is a result of the need to replace the attack on the right to privacy and Griswold. [More...]

D-Day gets it just as wrong here. I wonder if anyone was paying attention during the Roberts and Alito hearings?

By Big Tent Democrat, speaking for me only

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    Good solid point, BTD (5.00 / 1) (#2)
    by scribe on Thu Oct 02, 2008 at 08:40:23 AM EST
    This shift of tone in the dog-whistle was set in motion by Bork going on 15 years (or more) ago when he said "who says Roe must also say Dred Scott and Lochner."

    Let's also not forget that in the 2004 debates, Bushie used mention of Dred Scott in one or more of his answers to blow the dog whistle to the Jesus-cultists on the Right.  (Ironic that, while I was writing this comment and mentioning the dog-whistle, this was playing on the internet radio - the allegro movement of Leopold Mozart's Hunter's Symphony in D Minor, complete with dogs baying, hunting horns, and percussion smacks to simulate gunshots.  It's that time of year....)

    Anyone who thinks Palin is not a straight-out theocrat who would enact her religious beliefs as law - isn't paying attention.  All the rest is window-dressing for her.

    For us non-lawyers... (5.00 / 1) (#3)
    by wasabi on Thu Oct 02, 2008 at 09:03:55 AM EST
    Could someone do a few sentences on how the right wing argues privacy wrt Dred Scott and Lochner?

    The short version is this (5.00 / 2) (#10)
    by scribe on Thu Oct 02, 2008 at 10:03:33 AM EST
    each of them was the product of "substantive due process".

    There are a couple categories of "due process" which are capable of being enforced.  The two biggest are "procedural due process" and "substantive due process".

    "Procedural due process" means, in its core sense, that the procedures which are used - by a government agency, court or other governmental entity - when dealing with a person (a juridical person, i.e., people, business entities, non-profit entities, anything capable of being in a court or affected by governmental action) and that person's rights are carefully spelled out, established in a neutral way, and evenhandedly applied.  Thus, a court procedure which would say "Procedure A applies in this court", but which was applied as "procedure A for white people, less favorable procedure B for non-white people" would fail to give procedural due process to B.  Similarly, Kafkaesque procedures, secret law, and such also fail to provide procedural due process.  The big question judges have to address when dealing with a question of procedural due process is "is the process fair?"

    "Substantive due process" is, OTOH and in the wingnut view, more concerned with whether the result is "Fair".  Of course, the "fairness" of a "fair" result depends upon whose ox is being gored.

    The difficulty which wingnuts have with substantive due process as expressed through Roe is the same one which the liberals, labor and downtrodden had with Lochner, and which the abolitionists and human rights campaigners had with Dred Scott.  In each of these cases, the losers viewed the result as illegitimate because they viewed the result as having come through the application of a powerful elite's values to determine what was "fair" and that result was contrary to what the losers sought.  If one were a slaveholder or had come up from politics in a state which was the navel of American slavery, as did Chief Justice Taney (of South Carolina) in Dred Scott, one would see a result which consigned people of color to slavery as a "fair" and "just" result.  Taney came up with many, many different arguments all of which proceeded from the passions and prejudices of the society in which he grew up.  Try reading Dred Scott some time, and you'll see a lot of different explanations, few if any of which are solidly grounded in common law.

    The same can be said about Lochner.  Remember, that case was a challenge to a law governing contracts - setting maximum hours for work.  The challenge to that law was couched in terms of "freedom of contract", i.e., that people should be free to contract to do anything and the government stay out.  The justices of the Lochner court had come up through the rabidly pro-business and anti-worker society of the post-Civil War Gilded Age and were devoted to preserving and enhancing the rights of the big money to which they owed their position.  So, they came up with a lot of arguments which supported the position they favored, few if any of which were grounded in common law, and came to a result which they deemed "fair".  Again, a matter of whose ox was gored.

    The same can be said, to a degree, about Roe.  There really was little said about privacy or individual autonomy of women (there had been a good bit about mens' autonomy) prior to the 1960s.  The idea of a "right to privacy" had really never been articulated as such until the turn of the 20th century when Louis Brandeis, then a lawyer in private practice, created and articulated it out of whole cloth as an argument for a family he was representing in a dispute with a media outlet that had published something the family wanted kept out of public view.  In other words, the "right to privacy" started its named existence as something akin to a "right against paparazzi".  That is not to say that there was not a right of privacy extant beforehand - one need only look at what the Founders wrote in the Fourth Amendment to see how jealously they wanted to guard privacy against government intrusion.  Rather, it can be fairly said that at the time of the Founding, privacy and autonomy free of governmental intrusion were deemed so obvious as to be not needing more definitive mention.  As such, a good argument can be (and was) made that these rights were subsumed within the Ninth Amendment's protections.

    So, the wingnuts decided that Roe offended their sensibilities, but not really until after it was decided.  In the late 60s and early 70s, abortion was being legalized by legislatures repealing anti-abortion laws.  Roe finished that job and discussion - of public policy - a bit preemptively, and that was a part of the wingnut opposition.  But that opposition did not come until after the decision had been handed down.  Imagine, for a second, that the Dred Scott case had declared slavery legal, depriving legislatures of the discussion and decision on whether to legalize it, and did this absent an abolitionist movement, and that movement organized only afterward.  That's a fair analogy to how Roe landed in the consciousness of wingnut-land.

    Another, and bigger, part of the wingnut opposition to Roe was that it gave the wingers something to be against and to rally their troops around.  Roe came down in 1973, after the upheavals of the women's liberation movement, the free speech movement, the hippie rebellion against the war and the Establishment, and (probably most of all) the civil rights revolution, all of which had taken place since 1960 - in 13 years.  In large part, the civil rights revolution had taken place through the Courts, not only in race relations but also in criminal procedure.  Even in 1973, it was considered gauche to be anti-black or anti-integration, and one had to admit that the criminal procedure revolutions of the Warren court had improved the justice system somewhat.  But, one could be anti-abortion with impunity.

    So, it gave the wingers something where they could organize collectively all the backlashes against the developments of the 1960s.  Give me a place to stand and I can move the world, etc.

    FWIW, and returning to the substantive due process issue - one can see something akin to how pure substantive due process decisions are structured in the Heller v. D.C. 2d amendment case last summer, and particularly in the diverging majority and minority opinions.  Substantive due process decisions come about most frequently when there is a constitutional right or provision which really hasn't been the subject of exposition, and there are diverging views on how far the right goes.  The controversy stays on - years after the decision.

    And this is the very short version.  OK?

    Parent

    Thank you! (5.00 / 1) (#20)
    by wasabi on Thu Oct 02, 2008 at 10:38:07 AM EST
    The substantive vs. procedural due process explanation is very helpful. I appreciate all the time it took you to write that up.

    Would abortion rights be more secure if they had been based, as in Britian, on the mental or physical health of the mother, rather than the right to privacy?  Would the 14th Amendment's protection of life and liberty support arguments around the mental/physical health concerns of someone pregnant?

    Parent

    Gald you liked it. Send money. (5.00 / 2) (#27)
    by scribe on Thu Oct 02, 2008 at 10:55:12 AM EST
    But, a little more seriously, the short answer to your question is that no rights are secure, if there are not people to defend them.  The intellectual basis or bases from which the rights proceed or in which they are grounded are, in the main, irrelevant.  It is the persuading of judges and politicians to protect those rights and allow their enforcement to proceed that ultimately matters.

    Parent
    I have contributed money... (none / 0) (#33)
    by wasabi on Thu Oct 02, 2008 at 11:26:53 AM EST
    And I will continue to contribute money.  I find this site invaluable.  Thanks again.

    Parent
    It's a very good short version. (none / 0) (#14)
    by Fabian on Thu Oct 02, 2008 at 10:07:22 AM EST
    Thanks.

    I'll leave law alone and stick to science.  Science is waaaaay less confusing.  No one goes around arguing whether Newton's First Law applies this case or not! ;-)

    Parent

    Glad you liked it. Send money. (none / 0) (#18)
    by scribe on Thu Oct 02, 2008 at 10:15:46 AM EST
    Longer (none / 0) (#23)
    by eric on Thu Oct 02, 2008 at 10:41:46 AM EST
    and certainly more complete than my version, above.  One thing that I do find interesting is that the criticism of Roe using Lochner is actually a pretty intellectual undertaking.  It doesn't make for a quick, political attack on Roe.

    I think that you are giving the people that criticize Roe with Dred Scott too much credit.  I think that they simply use it as an example of a case that was decided wrongly and was influenced by politics.  And it is approachable for everyone because it is so wrong looking at it today because it involved slavery.  No need to explain due process, just say "Dred Scott", message sent.

    Parent

    You correctly state that (5.00 / 3) (#29)
    by scribe on Thu Oct 02, 2008 at 11:08:30 AM EST
    the criticism of Roe using Lochner is actually a pretty intellectual undertaking.  It doesn't make for a quick, political attack on Roe.

    That's correct, insofar as it goes, but it also highlights the whole structure of wingnut welfare and their farm-team approach to developing "thinkers" and "speakers" who push their ideas.

    What I wrote above summarized an extended discussion which Bork did in one of his books, and which has been repeated elsewhere.  It is intellectual and not easy to follow.

    But, wingnut welfare has made it possible to push those ideas out into the populace at large.  Not too many people are going to spend $39.99 or whatever the going price is for an intellectual book, and not too many thinkers (especially those who can charge a couple hundred bucks an hour for their lawyering) are going to devote the time to writing those books, absent a source of money making it possible to produce the propraganda and sell it at reasonable prices.

    Moreover, the structure of the arguments Bork and others make in the wingnut welfare books are designed to key into the way people are taught to think, and the way the people predisposed to authoritarian tendencies do, in fact, think.  Too many people are educated today to believe that being smart means nothing more than being able to rehearse extended arguments without examining the premises behind each of the steps of those arguments.  Education today, particularly as it is absorbed by people predisposed to authoritarianism, teaches rote recitation and not only avoids teaching discernment, but actively discourages discernment.

    So, you wind up with a lot of people on the right who think themselves smart, and whom others think are smart, whose main claim to that status is the ability to read, remember and recite the propaganda they are fed.  And they have taken their "Smart" status to lead discussions and explain and overbear their friends and neighbors about a particular topic.  

    The end result is that when Bushie mentions Dred Scott in a debate in 2004, they all know he's referring to wiping out abortion. All the other people who haven't been exposed to the combination of wingnut propaganda and infrastructure are left scratching their heads wondering why Chimpy is talking about slavery and a case which was reversed by a war held 140 years prior.  And they giggle at him for being so out of touch.  It's the essence of a dog-whistle attack and direction of the attackers.

    Parent

    Dred Scott (none / 0) (#7)
    by eric on Thu Oct 02, 2008 at 09:54:41 AM EST
    and Lochner are widely regarded as prominent decisions of the Suprmeme Court that were wrong and which were later overruled.  So too, these people would argue, Roe should be overruled.

    The issues are different, of course, but the concept of a decision being wrong and later corrected is what they are concentrating on.  (In truth, Dred Scott wasn't so much overruled as it was superseded by the passage of the civil war amendments, The Slaughter House Cases made it clear that Dred Scott was no longer good law)

    Parent

    So nothing to do with privacy? (none / 0) (#11)
    by Fabian on Thu Oct 02, 2008 at 10:03:52 AM EST
    Oh. Good.  I was confused.

    Parent
    Thank you. (none / 0) (#12)
    by wasabi on Thu Oct 02, 2008 at 10:04:49 AM EST
    That helps me understand the argument better.

    Parent
    One interesting thing (none / 0) (#19)
    by eric on Thu Oct 02, 2008 at 10:28:30 AM EST
    about Lochner that is parallel to Roe is that both involve something known as Substantive Due Process, which is the concept that the Due Process Clause of the 14th Amendment contains within it "substantive" rights and is not merely procedural.  In the Lochner Era, as it was called, substantive due process was determined to give the "right to contract" that could not be infringed by economic regulation of business.  All sorts of laws and regulations were struck down on this principle.

    For some, the decision in Roe is the same, as it establishes a substantive due process right of privacy.  So when Bork was criticizing Lochner, he was probably tying it to Roe because both, in his mind anyway, rely upon substantive due process.

    Parent

    Hedged (none / 0) (#1)
    by Demi Moaned on Thu Oct 02, 2008 at 08:00:25 AM EST
    Beyond that, the word yes was hardly out of her mouth before she was into a riff on states' rights.

    Here's the real problem with her answer (5.00 / 1) (#16)
    by litigatormom on Thu Oct 02, 2008 at 10:14:04 AM EST
    even assuming that her acknowledgment of a constitutional right to privacy is not inconsistent with acknowledging a constitutional right to abortion per Roe.

    After acknowledging that the right to privacy is constitutionally protected, she said that she thought that the citizens of the respective states should be able to vote -- to usher in their will -- as to any limits of that right. She seemed not to understand that if a right is protected by the U.S. Constitution, it applies equally to U.S. citizens without regard to their state of residence. A right that is constitutionally protected cannot be limited by the states, whether through legislation or amendments to a state's constitution. Constitutionally protected rights can only be extended by state action.  

    The question in every Supreme Court case involving state legislation limiting abortion rights is whether it infringes upon the rights protected by the U.S. constitution, not whether its enactment accurately reflected the will of the state's citizens. Of course, in recent years the Supreme Court has adopted ever more narrow views of the scope of that constitutionally protected right, but so long as the Supreme Court does not overrule Roe, whatever rights are within the Court's view of its scope cannot be limited by any form of state action.  

    Parent

    Holy second (5.00 / 1) (#21)
    by Wile ECoyote on Thu Oct 02, 2008 at 10:39:02 AM EST
    amendment.  How about the gun restrictions in Chicago, Philly and New York?  

    Parent
    or what about the constitutional (none / 0) (#36)
    by of1000Kings on Thu Oct 02, 2008 at 01:42:02 PM EST
    right to not have unlawful search and seizures, which police officers do all the time, in many states...

    Parent
    The Second Amendment (none / 0) (#39)
    by eric on Thu Oct 02, 2008 at 01:58:59 PM EST
    doesn't apply to the states.  Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982) cert. denied, 464 U.S. 863 (1983) ("Since we hold that the second amendment does not apply to the states, we need not consider the scope of its guarantee of the right to bear arms.").  It is a completely different analysis than with Constitutional rights that are controlling on the states.

    Parent
    Um (none / 0) (#43)
    by Wile ECoyote on Thu Oct 02, 2008 at 04:41:52 PM EST
    the Village of Morton Grove repealed their ban  
    Friday, July 18, 2008 in light of the Heller decision.  

    Parent
    After threats from the NRA (none / 0) (#45)
    by eric on Fri Oct 03, 2008 at 10:29:23 AM EST
    Heller doesn't overrule Quilici and it certainly didn't stand for the proposition that the Second Amendment applies to the states.

    Parent
    Oops (none / 0) (#17)
    by litigatormom on Thu Oct 02, 2008 at 10:15:10 AM EST
    First sentence of the post above should say

    even assuming that her acknowledgment of a constitutional right to privacy is not inconsistent with DISPUTING a constitutional right to abortion per Roe.


    Parent
    States over individuals (none / 0) (#22)
    by Demi Moaned on Thu Oct 02, 2008 at 10:39:59 AM EST
    Of course you're right. The broader point is that the right wing takes a very dim view of individual rights in general. What's an individual right at the federal level can be overridden at the state level.

    Parent
    I will (5.00 / 1) (#25)
    by Wile ECoyote on Thu Oct 02, 2008 at 10:46:50 AM EST
    of course argue the opposite.  Second amendment?  What is your view of private property taken by the gov't?  As far as I can tell here, progressive on care about individual rights when is comes to abortions.  Other than that it is as BTD puts it: For the Common Good.

    Parent
    Fair point as far as guns go (none / 0) (#28)
    by Demi Moaned on Thu Oct 02, 2008 at 10:55:18 AM EST
    But it hardly demonstrates the opposite point.

    I think the objections to unreasonable search and seizure are far stronger on the left than on the right.

    Parent

    And I think (none / 0) (#30)
    by Wile ECoyote on Thu Oct 02, 2008 at 11:09:10 AM EST
    objections to individuals owning guns, or owning private property, or having their own business for that matter are also far stronger on the left than the right also.  Of course it did demonstrate the opposite point.  Progressives, for the most part, are a one trick pony when it comes to individuals.

    Parent
    excluding the point (none / 0) (#32)
    by eric on Thu Oct 02, 2008 at 11:24:44 AM EST
    about guns, the basic difference of opinion is how one values economic liberty and personal liberty.

    As the classic lefty that I am, I don't feel particularly strongly about economic liberty, but do feel very strongly about personal liberty.  You seem to be the opposite.

    So if I'm a trick pony, so are you.

    Parent

    LOL (none / 0) (#34)
    by Wile ECoyote on Thu Oct 02, 2008 at 12:47:12 PM EST
    1.  Who are you?  Demi Moaned?  That who I was posting with.

    2. I will say excluding abortion, (which was what the exchange contained) you don't care about personal liberty at all.  A no trick pony.  But hey lets count guns and abortion, then I do care about personal liberty and you care about personal liberty, just not economic liberty.  Correct?  BTW, I am for all the abortions women want to get.  


    Parent
    classy (none / 0) (#35)
    by eric on Thu Oct 02, 2008 at 01:31:38 PM EST
    n/t

    Parent
    State over individuals (none / 0) (#41)
    by litigatormom on Thu Oct 02, 2008 at 02:48:45 PM EST
    The big exception in Republican ideology, of course, is in the field of business (non)regulation.

    Parent
    and the War on Drugs... (none / 0) (#44)
    by of1000Kings on Thu Oct 02, 2008 at 09:00:38 PM EST
    Yes. Her answer was most odd. (none / 0) (#24)
    by wasabi on Thu Oct 02, 2008 at 10:42:21 AM EST
    How could she say in one breath that there is a right to privacy inherent in the Constitution, but we ought to let other people thru their representatives determine whether that right is still available in a given state.  That surely is a very wierd understanding of the Constitution.

    Parent
    you give her (none / 0) (#26)
    by eric on Thu Oct 02, 2008 at 10:47:00 AM EST
    too much credit - I don't think that there is any "understanding" there.  She is just repeating concepts and words that right-wingers like.  States rights, local control, etc.

    Parent
    SOP for the GOP. n/t (none / 0) (#15)
    by Fabian on Thu Oct 02, 2008 at 10:08:28 AM EST
    They have? (none / 0) (#4)
    by andgarden on Thu Oct 02, 2008 at 09:38:49 AM EST
    As recently as 2006, Rick Santorum said he thought there was no such right and that Griswold was incorrectly decided.

    Sure (5.00 / 2) (#5)
    by Steve M on Thu Oct 02, 2008 at 09:47:51 AM EST
    And Rick Santorum was an extremist who lost in a landslide.  That's what happens when you run on a message that has been discredited.

    BTD is simply right: both Roberts and Alito acknowledged the existence of a right to privacy at their confirmation hearings.  What they didn't acknowledge was a GENERAL right to privacy, in other words, a right that can mean whatever the Supreme Court wants it to mean.  It's something of a word game but that's politics.

    The blogs are getting it wrong on this one.  There will be no freak-out on the right because Palin said "right to privacy."

    Parent

    Apparently the right has not been so good (none / 0) (#6)
    by andgarden on Thu Oct 02, 2008 at 09:53:32 AM EST
    at communicating this message.

    I still hear the, ahem, traditional, view from Republicans I know.

    Parent

    Sure (5.00 / 1) (#8)
    by Steve M on Thu Oct 02, 2008 at 09:56:57 AM EST
    and if you read the blogs you can find a million Democrats who say things that a Democrat running for office would never say.

    The question is, will the Republicans you know be outraged at Sarah Palin saying there's a right to privacy, even as she makes clear she disagrees with Roe v. Wade?  I have my doubts.  The evidence is that conservatives did not get upset when Roberts and Alito said there was a right to privacy.

    Parent

    They already get a nice truthy feeling from her (none / 0) (#9)
    by andgarden on Thu Oct 02, 2008 at 09:58:14 AM EST
    why would they care what she actually says?

    Parent
    she's like them, she has to be right (none / 0) (#37)
    by of1000Kings on Thu Oct 02, 2008 at 01:47:21 PM EST
    just like GWB, of course...

    Parent
    It's a problem (none / 0) (#13)
    by Maryb2004 on Thu Oct 02, 2008 at 10:05:48 AM EST
    The big left blogs are interested in superficial analysis of the 'win-loss' variety.

    I think it was Ezra Klein who pointed out, the other day, that you can have a political win but that doesn't mean you've achieved victory.  He's right.  Because to know if you have a victory you have to be looking at the issues that are important to you.  There are two parts to the puzzle.  The issues-based goals that matter and the politics that gets you closer to achieving those goals.

    Conservatives seem to have learned this lesson.  They change their political rhetoric to ultimately remain true to the underlying issues and goals that concern them.  So, in the end, these anti-Roe conservatives may suffer a political defeat but by changing their rhetoric they may move the country on an issue and get closer to ultimate victory on issues that concern them.  They think long term.  Their job is easier when the left wing doesn't pay attention to issues and look through the rhetoric and STOP the memes from spreading.  

    Proving Left blogs are little better than the Right blogs, knee jerk stupidity is at a premium these days.

    You'll excuse me for calling myself an expert on this subject and saying the Left blogs embarrassed themselves on this point.

    Parent

    I wasn't commenting on (none / 0) (#42)
    by Maryb2004 on Thu Oct 02, 2008 at 04:24:11 PM EST
    the context of Ezra's statement, just the statement itself which I agree with.  There are times you can give yourself a political win and still lose the battle.  I think that's true.  And the converse, you can lose an individual political fight but still win the battle.

    Excuse you?  If the subject is Roe v. Wade - sure, I'll concede your expertise. And yes, the left blogs embarrased themselves on it.  I don't think my comment was disagreeing on that.

    If the subject is the knee jerk stupidity of left blogs - I don't see what make you more of an expert than anyone else including me.

    Parent