File spoon-archives/marxism-thaxis.archive/marxism-thaxis_1998/marxism-thaxis.9801, message 730


Subject: Re: M-TH: Privacy and Marxism
Date: Fri, 30 Jan 1998 01:18:58 -0500 (EST)
From: hoov <hoov-AT-freenet.tlh.fl.us>


Justin S:
> The foundational case is Griswold v. Connecticut (1961, I think), which
> struck down a state law forbidding the sale of contraceptives. Douglas,
> writing for the court, found a privacy right in the 14A as well as some
> other places which this law violated. I guess his thought was that the law
> intruded on theprivacy of the marital bedroom. That's the way he put it.

Griswold was 1965...Douglas claimed that the 1st, 3rd, 4th, 5th, & 9th
Amendments created "penumbras, formed by emanations from those guarantees
that help give them life and substance"...he wrote of "zones of privacy"
that are guaranteed by these rights...the 9th is the foundation for his
reasoning: "The enumeration in the Constitution of certain rights, shall
not be construed to deny or disparage others retained by the people"...
in other words, just because the Constitution does not specifically talk
about a right to privacy does not mean that this right is denied to the
people...

In declaring that some of these liberties (such as the intimacy of
marriage) were ancient liberties that preceded the Bill of Rights,
Douglas appealed to centuries-old authority of common law and natural 
law...other justices held that marital privacy is protected by the due 
process clause of 14th Amendment - Harlan, for example, defended the use 
of substantive due process in this case...Goldberg's concurring opinion
(which Douglas joined with Warren) stated that the 9th applied to the 
states through the 14th and protected marital privacy as an unenumerated 
right...Black, an advocate of total incorporation of the Bill of Rights 
dissented (ruling was 7-2) arguing that he could find no such right in 
any of the first 8 amendments and because he believed that the 9th was 
intended to limit the federal government, not to protect unenumerated 
rights...

while Griswold (and later cases extending sale and use contraceptives to 
unmarried adults and minors) & Roe may rest upon several constitutional
grounds, the Court has refused to recognize the right to privacy of
gays and lesbians...it ruled, via a 5-4 vote in Bowers v Hardwick (1986),
that the right to privacy does not protect homosexual acts between
consenting adults...Powell initially indicated that he would vote to
strike down Georgia's sodomy law, but then changed his mind...after
leaving the bench, he suggested that he was probably right the first
time...interestingly, this case reached the Supreme Court after a
federal appeals court had struck down the law and the state of Georgia
appealed the decision...this ruling expressed a willingness to restrict
expansion of the 9th and development of new substantive rights...Michael
Hoover


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