Meet the new Bork, same as the old Bork
Aug. 2nd, 2012 09:07 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
elfsAnotonin Scalia has become Robert Bork.
Robert Bork once said that Griswold v. Connecticut, the ruling that allowed women to discuss birth control with their physicians without the intereference of the government, and which ensured that such a conversation was private, was wrongly ruled: as he famously put it, "The sexual gratification of one group is being elevated the the anguish of another group's moral gratifications. Nowhere in the Constutition do we find the imposition of a heirarchy of gratifications."
Scalia has now embraced this argument fully. There is no right to privacy to be found in the Constution.
Many constitutional scholars feel otherwise. Primarily, they argue that the Sixth Amendment, the one about being required to board soldiers in one's homes, is a specific example of a generalized case: the government may not put monitors into your home without a warrant for a specified reason.
Robert Bork once said that Griswold v. Connecticut, the ruling that allowed women to discuss birth control with their physicians without the intereference of the government, and which ensured that such a conversation was private, was wrongly ruled: as he famously put it, "The sexual gratification of one group is being elevated the the anguish of another group's moral gratifications. Nowhere in the Constutition do we find the imposition of a heirarchy of gratifications."
Scalia has now embraced this argument fully. There is no right to privacy to be found in the Constution.
Many constitutional scholars feel otherwise. Primarily, they argue that the Sixth Amendment, the one about being required to board soldiers in one's homes, is a specific example of a generalized case: the government may not put monitors into your home without a warrant for a specified reason.
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no subject
Date: 2012-08-02 08:46 pm (UTC)Second, the whole problem here, as pointed out by Scalia, is that you can not take a specific case in the text and make a generalized case out of it.
I would even suspect that you would agree that it isn't legal or appropriate to interpret those generalized cases out of specific examples. What if you were arrested for not wearing your safety goggles while dismantling your shed in your backyard, and the prosecutor's explanation was "Well, there isn't a law against that but there are other specific laws against dangerous behavior that could lead to personal injury, so we interpreted a general case of prohibition of dangerous acts". I'll bet in that case you'd scream bloody murder and insist that it's inappropriate and illegal to take a specifically enumerated prohibition and generalize it into a larger broader prohibition by interpretation rather than specific amendment.
no subject
Date: 2012-08-04 03:48 pm (UTC)Actually you can, it has been done (see California) and I believe that is why Scalia is whining.
However, one cannot go to any extreme on either side without abandoning one's COMMON SENSE.
And there is a big difference between using the 3rd amendment's clause regarding quartering soldiers (which was used, among other things, to keep tabs on folks that didn't behave) to interpret a basic right of privacy within the household and taking non-Constitutional-based laws of safety to reinterpret across a broader spectrum...rather than just passing another law for the specific case (which is what you are talking about)