A Constitutional Right to Privacy?

IN his review of Original Intent and the Framers’ Constitution (NR, Dec. 30) Joseph Sobran disagrees vehemently with Leonard W. Levy for endorsing the idea of a constitutional right to privacy. This, says Sobran, is a fine example of what Burke called “these metaphysical rights of man.” “Legally,” Sobran writes, “there can be no such right, any more than there can be a constitutional ‘right to justice.’”

Underlying this protest is the Griswold case of 1965, in which the Supreme Court ruled unconstitutional a Connecticut statute that forbade dispensing birth-control information or contraceptive devices to married couples. The opinion of the Court—by Mr. Justice Douglas—was based upon the discovery of a right to privacy among the “penumbras formed by emanations” from the First, Third, Fourth, Fifth, and Ninth Amendments. Douglas’s penumbras and emanations have been the frequent occasion for much hilarity. But the hostility against Griswold—so marked in Mr. Sobran—arises not so much from the decision itself as from the use to which it was put in the 1973 decision in Roe v. Wade. There the Court discovered that the right to privacy discovered in Griswold was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Like many conservatives, Sobran sees Griswold as a stepping-stone to Roe. In this I think he is mistaken. That there is no necessary connection between the two decisions is shown by the fact that Justice White concurred in the former and dissented in the latter.

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Harry V. Jaffa

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Joseph Sobran

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IN his review of Original Intent and the Framers’ Constitution (NR, Dec. 30) Joseph Sobran disagrees vehemently with Leonard W. Levy for endorsing the idea of a constitutional right to privacy. This, says Sobran, is a fine example of what Burke called “these metaphysical rights of man.” “Legally,” Sobran writes, “there can be no such right, any more than there can be a constitutional ‘right to justice.’”

Underlying this protest is the Griswold case of 1965, in which the Supreme Court ruled unconstitutional a Connecticut statute that forbade dispensing birth-control information or contraceptive devices to married couples. The opinion of the Court—by Mr. Justice Douglas—was based upon the discovery of a right to privacy among the “penumbras formed by emanations” from the First, Third, Fourth, Fifth, and Ninth Amendments. Douglas’s penumbras and emanations have been the frequent occasion for much hilarity. But the hostility against Griswold—so marked in Mr. Sobran—arises not so much from the decision itself as from the use to which it was put in the 1973 decision in Roe v. Wade. There the Court discovered that the right to privacy discovered in Griswold was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Like many conservatives, Sobran sees Griswold as a stepping-stone to Roe. In this I think he is mistaken. That there is no necessary connection between the two decisions is shown by the fact that Justice White concurred in the former and dissented in the latter.