Have our courts gone insane?
1965 Griswold v. Connecticut. In this case a married couple challenged an old and long unenforced Connecticut law that barred married couples from buying contraceptives. The Supreme Court then ruled that there were rights that are not specifically mentioned in the constitution, and one of these was a “right to privacy”. This is where the idea of a right to privacy first came into play, having never been enumerated before.
Most of us would consent to this idea, even though the supreme court is not supposed to make law. Interestingly, though, it was the first time the Supreme Court had made a decision without basing it upon a specific clause in the constitution.
They called these unstated rights “prenumbral” rights, rights not mentioned but that could be seen in the shadows, so to speak, between the lines. While that may be so, the court set a dangerous precedent in at least two ways. First while it’s certain that rights do exist that are not mentioned specifically in our constitution, these rights were to be left to the states to enumerate and decide upon, not the federal government. Two, as Jefferson had warned, if the Supreme Court begin to enumerate and read between the lines and judicate on what is not clearly stated in the constitution, they could begin to change it and form it into any direction they wanted it to go.
However, quoting the Ninth Amendment that states”The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people”, the Supreme Court ruled that the enumerated rights could not over ride the prenumbral “right to privacy”.
Using this precedent from Griswold in Roe v. Wade , the Supreme Court ruled that the right to privacy gave women and doctors the right to kill, without due process, persons in the unborn stage of life. In one swift leap, our noble judges went from the freedom to buy condoms at the drug store, to the right to kill babies in a saline “wash” in mom’s womb. Therefore removing any protection for the unborn.
And a prenumbral “right” not mentioned in the constitution specifically, was allowed to over rule a unalienable right that was. This is not good jurisprudence.
However, while the “right to privacy” had never been specifically mentioned before, this was not the first time a Supreme Court had evoked the concept of privacy or private property in a court case. In what was without a doubt the worst ruling the Supreme Court ever made prior to Roe vs. Wade, the court used similar wording and logic to support slavery, in the Dred Scott decision ruling;
“A slave is the property of the master and the Constitution has ‘provided for the protection of private property against the encroachments of the Government’.”(1857, Dred Scott v. Sanford)
So in Dred Scott, the court argued that the right to private property superceded the slaves right to liberty, and in Roe v. Wade the court ruled the right to privacy over ruled the babies right to life.
President Abraham Lincoln rose up at that time and insisted that the slaves were persons, not possessions, thus their unalienable right to liberty as stated in the Declaration of Independence could not be violated. Do I need to point out that babies are also persons and not mere property of their mothers? Growing out of the womb or in the womb they are human beings in full possession of their right to life as based on the Declaration of Independence.
Nor is this the only similarity between Roe v. Wade and the infamous Dred Scott decision. The concept of personhood was attacked in both rulings, but that we’ll save for another day.