A story by Mike Allen and R. Jeffrey Smith in the Washington Post on 3 August, 2005, reviewed many of the background documents just released concerning Judge John Roberts, nominee for the US Supreme Court. The article’s title got the subject right, “Judges Should Have 'Limited' Role, Roberts Says.” However, once the authors got into the basis of Griswold v. Connecticut and Roe v. Wade, their understanding of the subject evaporated.
The article said,
“The new documents disclosed by the archive that reflect Roberts' skeptical views regarding a ‘fundamental’ right to privacy include a lengthy article on judicial restraint that he apparently drafted for publication in a journal of the American Bar Association....
“The article approvingly quoted from a dissenting opinion by Justice Hugo Black [in Griswold] ... [which] complained that the court had used ‘a loose, flexible, uncontrolled standard for holding laws unconstitutional.’ The draft article said that ‘the broad range of rights which are now alleged to be fundamental by litigants, with only the most tenuous connection the to Constitution, bears ample witness to the dangers of this doctrine.’
For those lucky many who are not immersed in constitutional cases, Griswold was the case about sale of contraceptives in Connecticut. It discovered and announced the “right to privacy” on which Roe v. Wade and all its progeny are based. Did everyone notice what the writers did here? They assumed that this right was found somewhere in the Constitution, without reading the document to look for it.
Senator Christopher Dodd made the same, obvious mistake on Fox News Sunday this weekend when he referred to the (non-existent) “Privacy Clause” in the Constitution.
Every now and again, a court manages to speak in plain English that even J.D. Salinger’s “fat lady” could understand. A decision by the First Circuit Court of Appeals did that this week. It concerned the third failed attempt by a Puerto Rican citizen to get a court to order for him a right to vote for President. This decision demonstrates why judges as well as reporters should read the Constitution before they write about it. The Court said:
“That the franchise for choosing electors is confined to ‘states’ cannot be ‘unconstitutional’ because it is what the Constitution itself provides. Hence it does no good to stress how important is ‘the right to vote’ for President. Although we recognize the loyalty, contributions, and sacrifices of those who are in common citizens of Puerto Rico and the United States, much the same could have been said about the citizens of the District of Columbia, who were voteless over a much longer period. The path to changing the Constitution lies not through the courts but through the constitutional amending process, U.S. Const. art. V; and the road to statehood – if that is what Puerto Rico's citizens want – runs through Congress. U.S. Const. art. IV, § 3, cl. 1.”
Source: http://www.ca1.uscourts.gov/ Case No. 04-2186, 3 August, 2005
This court, like Judge Roberts, understand the role of a judge under a written Constitution. The first question is: Do the courts have the power to decide this question? Whether a certain result is “a good idea” is irrelevant until that question is answered.
Certainly there are copies of the Constitution somewhere in the offices of the Washington Post. They should take them down and read them occasionally, to get a clue about what it means to have a government under a written Constitution.