UZZELL

The Washington Times Daily - - CELEBRATING FREEDOM - Lynn Uzzell, Ph.D., is a mem­ber of the James Madi­son So­ci­ety at Prince­ton Univer­sity and an ad­junct pro­fes­sor of pol­i­tics at the Univer­sity of Vir­ginia. She is cur­rently work­ing on an au­thor­i­ta­tive and im­par­tial ap­praisal of Madi­son’s Notes of the Con­stit

Gris­wold v. Con­necti­cut (1965), Jus­tice Arthur Gold­berg wrote that “the right of pri­vacy in the mar­i­tal re­la­tion is fun­da­men­tal and ba­sic — a per­sonal right ‘re­tained by the peo­ple’ within the mean­ing of the Ninth Amend­ment.” In other words, the Ninth Amend­ment was be­ing used to grant the Court an authority to de­cide which rights (un­named within the Bill of Rights) now de­served pro­tec­tion by the fed­eral gov­ern­ment. It was be­ing used as an ex­pan­sion of fed­eral authority over state laws.

In his dis­sent, Jus­tice Pot­ter Stewart crit­i­cized the Court’s in­ter­pre­ta­tion of this amend­ment: “to say that the Ninth Amend­ment has any­thing to do with this case is to turn som­er­saults with his­tory.” Nev­er­the­less, the Court’s rea­son­ing in Gris­wold has turned som­er­saults in “pri­vacy cases” ever since, in­clud­ing Roe v. Wade (1973). It has been a truly ac­ro­batic his­tory.

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