October 16th, 2008


the senator’s consistent position

Thus spake Barack Hussein Obama in his second debate with John McCain on 15 October 2008:
I think that the Constitution has a right to privacy in it that shouldn’t be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.
Regrettably, his uncompromising defense of the Constitutional right to privacy is belied by the approach to the Second Amendment. While campaigning in Iowa on 5 December 2007, even as he acknowledged that gun ownership “is an individual right and not just the right of a militia”, Obama stressed that “all rights […] are constrained by the needs and the rights of the community”.
As Obama knows, Justice William O. Douglas conjured the right to privacy on 7 June 1965 in Griswold v. Connecticut, U.S. Supreme Court 381 U.S. 479, from the theory that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” By contrast, on 26 June 2008, Justice Antonin Scalia recognized the right of individuals to bear arms as an “enumerated constitutional right” in District of Columbia v. Heller, U.S. Supreme Court 554 U.S.     . On the same day, Obama expatiated:
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Writing for the majority in Griswold, Justice Douglas ruled that the “zones of privacy” emanate from the First Amendment’s right of association, the Third Amendment’s prohibition against the quartering of soldiers in any house without consent in peacetime, the Fourth Amendment’s guarantee against unreasonable searches and seizures, and the Fifth Amendment’s privilege against self-incrimination. His colleagues were unpersuaded. Justice Potter Stewart, famous for knowing it when he saw it, found no constitutional infringements in the contraception ban at issue. Justice Hugo Black averred: “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.” Favoring penumbral emanations over specific, enumerated constitutional rights is unlikely to withstand judicial scrutiny. Thus the stage is set for probing Obama’s position on local jurisdictions instituting their own abortion laws.