Roberts endorses “Right to Privacy”;
Bush II betrays Christian supporters

John G. Roberts, Bush II’s first nominee to the Supreme Court, surprised many when he endorsed a Constitutional “right to privacy” during his Senate confirmation hearings.

Although the term “right to privacy” does not appear in the Constitution, Supreme Court judges created one in the case of Griswold v. Connecticut (1965). The Court later used Griswold’s “right to privacy” to legalize the crime of abortion in Roe v. Wade (1973).

Roberts believes in Constitutional “Right to Privacy”:

Lest there be any doubt that he was endorsing the same “right to privacy” that federal judges created in Griswold, Roberts clarified his view in the following exchange with Wisconsin Senator Herbert Kohl:

ROBERTS: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

That is the approach that the court has taken in subsequent cases, rather than in the (inaudible) and emanations that were discussed in Justice Douglas' opinion.

And that view of the result is, I think, consistent with the subsequent development of the law which has focused on the due process clause and liberty, rather than Justice Douglas' approach.

KOHL: Well, I'm delighted to hear you say that because, as you know, many, many constitutional scholars believe that once you accept the reasoning of Griswold and find that the Constitution does contain a right to privacy and a right to contraception, that you've essentially accepted -- scholars have said this -- essentially accepted the basis for the court's reasoning and decision on Roe, that a woman has a constitutionally protected right to choose.

In Griswold, the Court used the “right to privacy” to create a constitutional right to contraceptives. Senator Kohl is correct in noting that the reasoning used in Griswold led directly to the Court’s decision in Roe v. Wade, that the “right to privacy” also includes a right to abortion.

Calling Griswold’s rationale “reasoning” is charitable. The decision is as notorious as its then corrupt and soon to be senile author, William O. Douglas. In Griswold, Douglas wrote that the “right to privacy” could be found in the Constitution’s “penumbras formed by emanations.” (As Dave Barry would say, I am not making this up.) In 1970, then House Minority leader Gerald Ford moved to impeach Douglas for his financial ties to casino operator Albert Parvin. As the senescent Douglas’s mental lapses became impossible to hide, his fellow Judges took the unprecedented step of refusing to consider cases where his vote might be decisive. In 1975, Douglas finally resigned after a record thirty-six years on the court.

In his above-quoted Senate testimony, Roberts distanced himself from Douglas’s notorious “emanations” approach. Roberts stated that he preferred to locate the “right to privacy” in the Fourteenth Amendment (even though the words “privacy” “contraception” or ‘abortion” don’t appear there either.)

Roberts went even further to convince the Senate that he would vote in favor of a Constitutional right to abortion. In an exchange with Senator Feinstein, Roberts testified that he had no quarrel with the second Supreme Court “right to privacy” case, Eisenstadt v. Baird (1972). Eisenstadt expanded Griswold’s holding to include unmarried individuals, and prepared the way for the Court’s decision in Roe v. Wade the following year:

FEINSTEIN: Now, yesterday you said this: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The courts since Griswold has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

Do you think that right of privacy that you're talking about there extends to single people, as well as married people?

ROBERTS: The courts held that in the Eisenstadt case, which came shortly after Griswold, largely under principles of equal protection, and I don't have any quarrel with that conclusion in Eisenstadt.

Naturally, Roberts refused to say one way or the other whether he would apply the “right to privacy” to uphold Roe v. Wade. But by agreeing first with Griswold that the right exists and then with Eisenstadt’s expansion of the right, it is all but certain he will do so. To not uphold Roe under those circumstances would be like setting the dining room table and ringing the dinner bell only to announce that there will be no dinner.

Bush II’s Betrayal of his Christian supporters:

Now Bush II has never promised that he would appoint federal judges who will overturn Roe v. Wade. But in both his 2000 and 2004 campaigns, Bush II did promise to nominate judges who would “strictly interpret the Constitution” in the mold of Judges Scalia or Thomas.

Yet by nominating Roberts, Bush II has broken even this minimal promise. As the Washington Post correctly notes, Scalia, Thomas and other strict constructionists do not believe in a Constitutional “right to privacy.”

“Roberts was perhaps most unlike Scalia and Thomas in his acknowledgment that the Constitution creates a right to privacy, even if such a right is not specifically spelled out in the Constitution”

According to the Associated Press, one left wing law professor has already remarked that Roberts may resemble a different Supreme Court Justice who was nominated by Bush I:

"I don't think he's locked himself into any positions. He could go anywhere. He could be another (Justice David) Souter," said Ann Althouse, a law professor at the University of Wisconsin, referring to the liberal justice named to the court by President Bush's father.”

Other commentators have noted that by replacing the late Justice Rehnquist, a strict constructionist, with Roberts, Bush II is actually moving the Supreme Court to the left.

None of the foregoing can be excused by saying that Bush II inadvertently chose Roberts or made a mistake.

On the contrary, by nominating Roberts, Bush II is demonstrating the Republican Party’s historical commitment to judicial dictatorship. Since 1973, Republican appointees to the Supreme Court who have considered the issue favor a Constitutional right to abortion by the same ratio as Democratic appointees - three to one in favor.

Where is the outrage from our so-called Christian leaders?

The so-called Christian leadership reacted to Roberts’ embrace of the “right to privacy” with a deafening silence.

For example, influential Christian leader James Dobson immediately and unconditionally endorsed Bush II’s nomination of Roberts, eschewing a prudent “wait and see” approach. Now, he has nothing to say.

Conservative Christian beltway outfits like the Family Research Council also signed onto the Roberts nomination - unconditionally and prematurely.

Those who advocate for a Constitutional right to abortion and sodomy have expressed puzzlement over Dobson’s endorsement of Roberts. Left-wing New Republic contributor Jonathan Chait remarked:

“The battle lines on the Roberts' nomination had already hardened before the Los Angeles Times reported earlier this month that Roberts had done pro bono work on behalf of gay-rights groups in Romer v. Evans, a 1996 case establishing protections for homosexuals against state discrimination. Unlike Roberts' work for the Bush administration or in private practice, in which his role is to advocate his client's view, pro bono work really does tell you something about Roberts' personal beliefs. And given the fact that gay rights is a major new frontier in the legal and cultural wars, conservatives ought to be highly alarmed.

Despite all this, conservative groups such as James Dobson's Focus on the Family continue staunchly to back Roberts. It's hard to convey just how weird that is.”

In light of Roberts’ testimony that he believes in a Constitutional “right to privacy,” and Bush II’s broken promise to nominate strict constructionists in the mold of Scalia or Thomas, these so-called Christian leaders should retract their endorsements of Roberts. They should turn about face and announce they oppose Roberts’ confirmation.

But don’t hold your breath.

What can Christians do?

Our Lord Jesus Christ admonished us “Be ye wise as serpents...”

Is this the best we can do to in following Him? Voting for and supporting Republicans like Bush I or Bush II who renege on promises to appoint strict constructionists to the federal bench? And by doing so, enabling the slaughter of the unborn?

Christians should stop contributing money to James Dobson, Focus on the Family, the Family Research Council, the National Right to Life Committee and other organizations that support and defend Bush II. Contributing money to so-called Christian leaders who support Bush II allow him to claim the support of the pro-life movement. Based on his actions, he does not deserve it.

If you have money to contribute to the pro-life cause, better that you contribute it to Christian leaders who are committed to ending abortion at the State and local levels of government.

One such leader is Cory Burnell, the President of Christian Exodus. You can make your contribution here.

Meanwhile, innocent blood cries out to Heaven:

Perhaps the worst aspect of the judicial nomination and confirmation spectacle is that takes on the appearance of a game. Its trivializes the importance of the matters at stake - the integrity of the United States Constitution and whether the lives unborn children will be entitled to legal protection. After Roe, forty million have been killed.

Their innocent blood cries out to Heaven. The Lord hears their cries, and hates the hands that shed their blood.
Gen 4:10, Prov 6:17

Do Christians who support Bush II and the Republican Party love that which God Himself hates?

Or to quote Mr. Eric Rudolph, instead of paraphrasing him:

“There are those who would say to me that the system in Washington works. They say that the prolife forces are making progress, that eventually Rob v. Wade will be overturned, that the culture of life will ultimately win over the majority of Americans and that the horror of abortion will be outlawed. Yet, in meantime thousands die everyday.

They say that the mechanism through which this will be achieved is the Republican party, and under the benevolent leadership of men like George W. Bush, the wholesale slaughter of children will be a thing of the past. But with every day that passes another pile of corpses is added to the pyre. George W. will appoint the necessary justices to the Supreme Court and Roe will be finished, they say. All of this will be achieved through the lawful, legitimate democratic process. And every year a million and a half more die.

I ask these peaceful Christian law abiding ProLife citizens, is there any point at which all of the legal remedies will not suffice and you would fight to end the massacre of children? How many decades have to pass, how many millions have to die? Is there any point when the cries of the children will not go unanswered?

I think that your inaction after three decades of slaughter is a sufficient answer to all of these questions.”

X - In Hoc Signo Vinces

Luke Exilarch - luke@eXilemm.com
September 22, 2005

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