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02/28/2017

A Comment on Q & A with Judge Gorsuch
Andrew Hyman

Mike Ramsey suggests the following answer (to a question suggested by Jeffrey Toobin) during upcoming confirmation hearings for Judge Gorsuch:

Q. Do you believe that the Constitution includes a right to privacy?

A.  As to the right of privacy, regardless of its basis in the text, the Court has recognized it on multiple occasions (as Justice Scalia himself did).  How far it extends is of course another matter, and that remains unsettled.

That's a bit too wishy-washy for my taste.  Sure, various aspects of privacy are protected to some extent by the Bill of Rights, such as the Fourth Amendment requiring probable cause to get a search warrant.  But there's no general right of privacy in the Constitution, and Senators ought to propose a constitutional amendment if they want to put one there, instead of trying to put judges on the Court who are willing to read things into the Constitution that are not there.  

Personally, I liked Judge Bork's answer to a similar question:

A. "Privacy to do what senator?  You know, privacy to use cocaine in private?  Privacy of businessmen to fix prices in a hotel room?"

That was a bit blunt in 1987, when Republicans held only 45 seats, but times have changed.  In 2013, Justice Scalia was much blunter, characterizing the Warren Court's privacy jurisprudence by saying "there’s a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage".  And in 2016, Scalia criticized "the judge-made theory of 'substantive due process' which guarantees certain fundamental rights like privacy" and called that theory "utterly idiotic."  Again, I think Scalia was pretty much on target.   Similar straightforward answers from Judge Gorsuch would be refreshing and accurate.  

I also note that Congress already has plenty of power to bar states from violating general privacy rights for certain types of people, and the courts could then extend those statutory rights to other people using the Equal Protection Clause. I discussed this basic concept here at this blog.