Strengthening Constitutional Self-Government

No Left Turns

Privacy in the Constitution

Robert P. George intelligently and succinctly goes over the old ground, explaining what he hopes John Roberts meant.

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George is wrong in his conclusion--what accounts for a right of privacy is not the JUDGES’ personal political and moral views, but rather what Montesquieu would call the "spirit" of the American regime as a work in the progress. As I’ve done in the past I refer her to political philosopher Peter Berkowitz’s recent article in Policy Review, On some issues Berkowitz comes to conclusions that many would call "conservative" and indeed that is how he is widely characterized (and he does frequently publish in places like the Standard). However, the difference between George and Berkowitz, is that Berkowitz is a philosopher and can think beyond simplistic and false dichotomies such as "textualism" vs. judge-made or "made up" law.
Now I wouldn’t describe John Roberts as a philosopher but he is one very shrewd observer of American legal and political life. In saying the constitution protects "privacy," Roberts is saying that whatever he might have thought or written in some other contexts, you can’t take away rights from people that they have been duly given through an interpretation of the constitution, not in a liberal democracy such as the the United States. You can expand the rights of individual citizens but not take them away, at least not without delegitimizing yourself as an agent of freedom. Roberts is far too smart and responsible to cause a crisis in the court and in the regime by participating in the destructuion of the right to privacy that has been develped through the jurisprudence that George discusses and disparages. This is not to say that a different balance couldn’t be struck in individual cases dealing with abortion than the balance struck in Roe. But it will not be done by undermining the right to privacy itself.

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