Courts v. The People

James Taranto traces the evolution of the "right to privacy" in the 40 years since its spontaneous generation from the legal primordial soup. Here are the key milestones:

• 1965 - In Griswold v. Connecticut, the U.S. Supremes were startled to discover that the Constitution was teeming with "penumbras and emanations" that had somehow escaped notice for almost two centuries. Among these was the heretofore-unknown-yet-fundamental constitutional right to marital privacy. On the basis of this, Connecticut was told it could no longer ban the sale of contraceptives to married couples. At this point, the official presumption was that only married couples would need them.
• 1972 - In Eisenstadt v. Baird, the sexual revolution finally stormed the halls of the highest court, and the Supremes clarified their Griswold decision: "Did we say marital privacy? What we meant to say was reproductive privacy." -- thus discovering the heretofore-unknown-yet-fundamental right of unmarried couples to obtain and use contraceptives.
• 1973 - In Roe v. Wade, the Supremes were startled to discover that "reproductive privacy" included the heretofore-unknown-yet-fundamental right of women to kill their unborn children.
• 1986 - In Bowers v. Hardwick, the court missed a beat, somehow failing to overturn Texas' homosexual sodomy law.
• 1992 - In Planned Parenthood v. Casey, the court not only upheld Roe, but in Taranto's words they also asserted "a new, breathtakingly expansive formulation of the right to privacy," one which made the succeeding milestone all but inevitable.
• 2003 - In Lawrence v. Texas, the Supremes looked back on their Casey decision, observed that the "right to privacy" had come to mean whatever they wanted it to mean, and took the step they had declined to take in the 1986 Bowers decision.

This beast is still evolving. Scalia famously warned in his Lawrence dissent that Pandora's Box had been opened -- it was impossible to argue convincingly that the legal reasoning accepted by the court in this decision could not be applied to homosexual marriage, polygamy, and a host of other things. Indeed, Lawrence is already being cited in cases across the fruited plain where plaintiffs are seeking to mainstream just about everything our culture considers to be deviant.

And herein, says Taranto, is the real issue. The courts, in forcing these cultural changes on an unwilling public, are acting as politicians, but without the accountability that politicians face. Jefferson wrote in the Declaration of Independence that governments derive their just powers from the consent of the governed. To the extent that our courts are willing to step outside the constitutional limits of their power, they are ruling unjustly.


UPDATE: David Limbaugh has a review of Mark Levin's new book, Men in Black, which examines in detail how the courts have exceeded their constitutional mandate. For example:

Levin reveals how the Court, through its obscenely expansive interpretations of the Commerce Clause, gave the federal government the extra-constitutional power to regulate wholly internal matters of the states and their citizens. And by creating constitutional rights out of whole cloth, such as the federal right to privacy, the Court has virtually robbed the states of their sovereignty and severely reduced the power of the people to govern themselves through their duly elected representatives.