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Roberts must declare position on Americans' right to privacy

The confirmation hearings for Supreme Court, now chief justice, nominee John Roberts have been delayed, but expect as they approach anew to hear a lot of back and forth about the issue of a right to privacy, which, depending upon where you stand, is either plainly implied in the Constitution, elusive or nonexistent.

From his skimpy writings and limited judicial findings, it appears that Roberts inclines toward the last. It is a favorite hobby horse of conservatives of Roberts' stripe. Perhaps the inquiring senators can smoke the nominee out on the matter. Much rides on it.

The argument here is between those who believe the Constitution is a dynamic document, whose underlying principles can be applied to circumstances and conundrums the Founding Fathers couldn't anticipate and "originalists" — think Clarence Thomas, Antonin Scalia — who believe constitutional rulings must be held to the literal text and the discernible intent of its framers.

Conservatives point out that nowhere in the Constitution is a right to privacy spelled out, and for them that is pretty much the end of the issue.

Others note that from the Declaration of Independence through the whole text of the Constitution, the privacy of citizens is an animating purpose — our natural right to be secure in our persons and property, to not have troops quartered in our home, to be free from unwarranted searches and seizures, to speak our minds and conduct our spiritual lives as we see fit without governmental interference.

Many of the Constitution's framers balked at the Bill of Rights because they feared literalists could misuse a list of particular rights to assert that citizens were privileged to no others. That worry was allayed when James Madison proposed a declaration that became the Ninth Amendment: "The enumeration in the Constitution of certain rights should not be construed to deny or disparage others retained by the people."

Conservatives have it that the right to privacy was a trendy improvisation by a then-liberal court in 1965, in a ruling holding that states could not violate citizens' inherent privacy rights by denying them access to contraceptives.

Actually, in a typical legal evolution, the concept had been slowly maturing since it was introduced in a Harvard Law Review article by Louis Brandeis, later a Supreme Court justice, and his law partner, Samuel Warren, in 1890.

The principle is often applied unexceptionably. It is in potentially mortal danger from the Roberts nomination because of a few rulings that offend the proprieties of social and political conservatives — particularly the findings that barred governments from forbidding abortion and from punishing private homosexuality. The right, for some conservatives, is a frustrating hedge against the enactment of a national moral code, as it is broadly a hedge against all majoritarian bullying.

Roberts will properly decline to answer questions that would have him anticipate how he would rule in specific issues and cases. That cover cannot be stretched to allow him to avoid a clear statement of where he stands among contending legal philosophies.


Tom Teepen is a columnist for Cox Newspapers. He is based in Atlanta. E-mail: teepencolumn@coxnews.com.