Tuesday, December 5, 2023

#339 / Revisiting That Griswold Dissent


William McGurn, pictured above, is a member of The Wall Street Journal editorial board. He writes the weekly "Main Street" column for the Journal each Tuesday. On Tuesday, September 19, 2023, McGurn's column was titled, "Donald Trump Owes Pro-Lifers." There is a paywall, but maybe The Journal will let you slip by, if you click the link.

As I read McGurn's column back in September, I was reminded of a blog posting that I published on November 12, 2021. That blog posting was titled, "An Observation By Justice Black," and commented on Black's dissent in Griswold v. Connecticut, the seminal Supreme Court case that established a constitutional "Right of Privacy." 

The Griswold case was a precedent that paved the way for Roe v. Wade, with the decision in that case, of course, holding that there is a constitutional right to abortion. Roe v. Wade, as I am sure everyone knows, has since been overturned. Our former president takes the credit for that, as McGurn mentions in his column. 

The Griswold decision, decided on a 7-2 vote, held that a Connecticut law that made it illegal for married persons to employ contraceptive devices was unconstitutional, because the law violated a "Right of Privacy" which the Court majority found to exist within the Constitution. My earlier blog posting focused specifically on a dissent by Justice Hugo Black. I think my earlier comment is worth revisiting, prompted as I am by McGurn's column. Here is Black, arguing against holding that there is a constitutional "Right of Privacy": 

I do not to any extent whatever base my view that this Connecticut law is constitutional on a belief that the law is wise, or that its policy is a good one. In order that there may be no room at all to doubt why I vote as I do, I feel constrained to add that the law is every bit as offensive to me as it is to my Brethren of the majority... 
This Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose flexible. uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts, and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up, and, at the same time, threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have (emphasis added). 

I teach a course at UCSC that is titled, "Privacy, Technology, And Freedom," and we always discuss Griswold. As time has passed, it has more and more struck me that the Black dissent makes a very good point. I have known about the Griswold case since my law school days, of course, and never paid much attention to Black's dissent, until the Trump era came around. Upon reflection, it seems to me that Justice Black was prescient, and that what that Griswold decision has led to is, in fact, a situation in which everyone has come to feel that it is the Supreme Court that is ultimately the most important part of our government, meaning that our "political" efforts now tend to be focused on how to change the composition of the Court, as opposed to focusing on the legislative branch, and what it decides.

Our system of government is premised on the idea that the "legislative" branch is the most important branch of our government, and that the "laws" enacted by the legislative branch that ultimately determine what the government does, and thus what kind of reality our political efforts will construct. In fact, as we are finding with the current, unelected Supreme Court Justices, it is now the Court, not the Congress, that makes the "big" decisions for the nation. 

Here is how McGurn quotes former president Trump, in his recent column: 

"After 50 years of failure, with nobody coming even close, I was able to kill Roe v. Wade, much to the ‘shock’ of everyone, and for the first time put the Pro Life movement in a strong negotiating position over the Radicals that are willing to kill babies even into their 9th month, and beyond. Without me there would be no 6 weeks, 10 weeks, 15 weeks, or whatever is finally agreed to. Without me the pro Life movement would have just kept losing. Thank you President TRUMP!!!”

McGurn, backing up the claims of our former president, says that "no one can deny Mr. Trump’s achievement with Dobbs v. Jackson Women’s Health Organization. His Supreme Court picks provided the margin of victory for overturning Roe v. Wade. He’s also right that absent Dobbs there would be no bans at all."

If we want to preserve and protect self-government in the United States, it is, I think. pretty clear that we need to make sure that former president Trump is not reelected. But I think we must also turn our attention to the Congress, both to the Senate and the House of Representatives, and insist that the legislative branch of our government start making the big decisions that will determine the fate of the nation (and, given global warming, perhaps the fate of human civilization). 

Looking to the Supreme Court as the place where the big decisions get made is to abandon the kind of self-government that the Constitution was designed to defend.

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