Judge between the quick and the dead.

William Cooper, the owner of a local savings and loan and the champion of speeding snowmobilers everywhere, has weighed in on the “living Constitution” debate. The Coop prefers a dead one. In a commentary in Sunday’s Star Tribune OpEx section, Cooper makes the case for originalism.

In a nutshell – God, that was Freudian – originalism posits that failure to pay attention to just the text of the Constitution means that judges will be just making it up as they go. Go with the judgment of the dead guys and not that of judges living in contemporary society. Sort of a pro-Leviticus position. Coincidence? Spotty doesn’t think so.

Cooper tells us:

A careful reading of our Constitution reveals that it was constructed mainly to limit the role of government in the lives of citizens. The document bestowed certain limited rights to government and all other rights to the states and, most importantly, to the people. "Living Constitution" makes our rights as citizens subject to a dictatorship of the court. The Supreme Court makes new law outside the political process.

But in the next breath, the Coop tells us that Roe v. Wade, a decision that increased the autonomy of individual women, is Exhibit A in the case against the “living Constitution”:

The abortion issue is the clearest and most hotly debated issue that demonstrates the effects of the "living Constitution." The U.S. Supreme Court took away the rights of the states to legislate laws limiting abortion based on a so-called "privacy right" in the "living Constitution." There is no right of privacy in the Constitution. In fact, the word privacy is nowhere to be found in our Constitution. This so-called right was somehow divined out of our Constitution by a court interpreting contemporary standards into our Constitution, without the inconvenience of amending the Constitution.

It is obvious to even the casual observer that Cooper’s real problem is with a line of cases that began with Griswold v. Connecticut in 1965. Spotty has written about Griswold here and here. Griswold involved the constitutionality of a Connecticut statue that prohibited the use of birth control drugs or devices and the counseling of patients regarding their use. In reversing a conviction under the statue, Justice William O. Douglas finds the existence of a right of privacy by considering the intent of several of the provisions of the Bill of Rights. In concluding his opinion, Douglas writes:

We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

The thread of the right of privacy runs from Griswold through Roe v. Wade to the recent Lawrence v. Texas. Lawrence is the case that struck down prohibition of consensual sexual relations between members of the same sex.

Cooper argues that by limiting the control that government – state and federal – can have on individual citizens, his right is abridged: the Right to Tell Other People What to Do.

Tags: right of privacy William Cooper