The Democrats' bad week

It's only Wednesday and already this week the Democrats have been forced to speak up in favor of gun control and partial-birth abortion, two stands that are certain to cost them their chance at the White House in the 2008 election.

Then again, it may not make any difference. When you look closely at the the current crop of Democratic presidential candidates, it seems increasingly likely that the Republicans would have to nominate Jerry Falwell to lose to any of them.

Today the Supreme Court upheld the federal Partial Birth Abortion Ban Act by a vote of five to four, a decision Justice Ruth Bader Ginsburg called "alarming." The Court's decision, she wrote, "cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court."

If you've read The 37th Amendment: A Novel (and the included essay, "How the First Amendment Came to Protect Topless Dancing"), you already know that a right "declared" by the Supreme Court is no substitute for a right written in the plain language of the Constitution, no matter how long the Court has upheld it or ignored it.

In 1938, for example, the Supreme Court overturned a case that had been the law of the land since 1842. The Court said it was "an unconstitutional assumption of powers by the Courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct."

In an eerie echo of that ruling, Justice Clarence Thomas and Justice Antonin Scalia wrote a separate concurring opinion today to make clear their view that "the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution."

It is true that the right to privacy in the United States rests on a 1965 hallucination by Justice William O. Douglas, who believed he saw it emanating from a penumbra of the Bill of Rights. He saw a right to marital privacy that was so fundamental to human liberty that a Connecticut law banning birth control could not be allowed to stand.

While no court had ever seen this right before, many saw it afterwards.

But Americans who want constitutional rights do not have to rely on the sprightly imaginations of aging justices. Article V of the U.S. Constitution gives the people of the United States the power to amend the Constitution to say anything they want it to say.

Anything.

Anything that can win the approval of three-quarters of the state legislatures.

Would you like to have a constitutional right to privacy, a genuine right that can't be repealed by Congress or revoked by a five-to-four vote of the U.S. Supreme Court?

Read "Why There is No Constitutional Right to Privacy, and How to Get One" at www.SusanShelley.com.


Copyright 2007

Source note: The 1842 Swift v. Tyson (40 U.S. [16 Pet.] 1) decision was overturned by the Supreme Court in the 1938 case of Erie Railroad Company v. Tompkins (304 U.S. 64). For more information, see Charles Fairman, American Constitutional Decisions, Revised Edition, (New York, Henry Holt and Company, 1950).

The 1965 privacy-rights case is Griswold v. Connecticut (381 U.S. 479).


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