By Nathan Tucker
In what can charitably be described as an act of political expediency, Iowa’s most conservative member of Congress embraced an activist decision by the U.S. Supreme Court as “constitutional” and encouraged those who thought otherwise to do something “constructive.”
At their fifth and final debate, Democrat Christie Vilsack challenged Congressman Steve King to make his position clear on “whether he believes that women in this community have the opportunity, have the right, the legal right to go into the drugstore down the street and fill a prescription for birth control pills or go out to New Opportunities and get some of the new long-acting reversible contraceptives at the local family planning clinic.”
King replied that the attack “comes from me explaining something, and that is a case called Griswold v. Connecticut. That was 1965. That was when the Supreme Court said that there is a constitutional requirement that prohibited the States from banning the sale of contraceptives. I accept that decision as constitutional, okay. If anyone advised otherwise, I would tell them, ‘Why don’t you go on to something you can be constructive with?’”
But as Congressman King well knows, Griswold, by giving birth to the notion of an unenumerated constitutional right to privacy, became the jurisprudential sire of a “right” to an abortion (Roe v. Wade) and to homosexual behavior (Lawrence v. Texas). In fact, writing for the majority in Lawrence, Justice Kennedy noted that Griswold is “the most pertinent beginning point” in judicial lawmaking.
Lawrence, in turn, has been relied on by courts in decreeing a constitutional right to gay marriage. Both Goodridge v. Department of Public Health (Mass. 2003) and Perry v. Brown (N.D. Cal. 2010), for example, cited Lawrence nine times, while the Iowa Supreme Court cited it four times in Varnum v. Brien (2009).
How is it then that Congressman King, a vocal critic of judicial activism in general and of Varnum in particular, can call its act of jurisprudential inception constitutional? For if Griswold is constitutional, so to are its progeny of Roe, Lawrence, and Varnum. If courts are free to create new rights by judicial fiat in Griswold, then there is no room to criticize them when they continue to do so in later cases.
It becomes hypocritical to denounce courts who “claim omnipotent power to imagine and confer constitutional rights that ‘were at one time unimagined’” in one case, but not do so in another. If it is “obvious [that the justices] feel empowered and will follow their whim in future decisions rather than the law” in Varnum, than it is equally as obvious in Griswold.
Until last week Thursday, Congressman King had recognized the unconstitutionality of Griswold, calling it a “manufactured, judicial activist right to privacy” in an appearance with David Barton on WallBuilders Live in March. At a House Judiciary Committee meeting in February, King had noted that the unenumerated right to privacy created by the Griswold Court became the “foundation for mandated abortion.”
Instead of flip-flopping in support of judicial activism, Congressman King should have reiterated his speech on the floor of the House in March in which he stated that:
No public official, no person who takes an oath to a constitution can be taking an oath to something that is amorphous, something that fluctuates and something that can change. The Constitution has to be fixed in place. Guarantees aren’t amorphous, Mr. Speaker. It is no guarantee if it’s amorphous. It has to be fixed in place and fixed in time…It’s impossible to take an oath to something that is amorphous, that’s living and breathing…
[In Griswold], all non-enumerated powers are reserved for the States or the people, respectively. So the Constitution, I say, defines that the States had that power. But yet, the Supreme Court, in their imagination in 1965, created this right to privacy, a right to privacy fabricated out of whole cloth, didn’t exist in the Constitution, doesn’t exist today in the Constitution…
I say if you lived in Connecticut in 1965 and you wanted contraceptives, you could drive across the State line, or you could move to another State. That was the vision of the laboratories of the State experiment of the Founding Fathers. States’ rights, Tenth Amendment…
As Justice Black noted in his Griswold dissent, “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”
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