McCain, Palin differ on privacy

When Sarah Palin flubbed her answer on a question about a right to privacy, she wasn't just breaking with the conservative movement but with her running mate as well.

Published October 2, 2008 7:25PM (EDT)

When Katie Couric asked her whether "there's an inherent right to privacy in the Constitution," Sarah Palin gave the wrong answer. She said yes.

Now, depending on your point of view, that might be the right answer in a legal sense. But it was definitely the wrong answer politically. Social conservatives don't believe the Constitution protects a right to privacy, and Griswold v. Connecticut, the landmark case in which the Supreme Court decided that it does, is one of the right's favorite examples of an "activist" decision. Moreover, John McCain, Palin's own running mate, appears to believe that Griswold was a bad decision and that there is no such right in the Constitution.

It's not easy to find out what McCain's position on Griswold is. And it's smart of him and his campaign to avoid any definitive statements either way. He's got to walk a pretty fine line on the issue: To appease his base, which has concerns about his record on social issues and judicial nominations, he has to at least hint that he's not a Griswold fan. On the other hand, he risks turning off independents with such a position. Opposing Roe v. Wade is one thing, but Griswold -- which, as Couric correctly pointed out, is the key precedent for Roe -- is something altogether different, and much riskier politically.

But in 1987, before he was running for president, he could afford to be less cautious. And in a floor statement he made supporting the controversial and ultimately unsuccessful nomination of Robert Bork to the Supreme Court, McCain made his feelings on the issue plain. An excerpt of his remarks:

Judge Bork is clearly a believer in judicial restraint ... I have no problem with that view, because I wholeheartedly agree with it.

Now, some of my colleagues are so result oriented that they appear anxious to embrace judges who are willing to bend and shape the Constitution to fit a particular social agenda. That should trouble people of all political stripes. No matter how much we may like the result of a case, we should never feel comfortable creating new constitutional precedents out of whole cloth and binding future generations simply to accomplish a particular end.

Not only is that an inappropriate use of judicial power, but it leaves legislatures incapable of changing the outcome. Congress and State legislatures cannot change Supreme Court rulings when they are based on constitutional grounds, as opposed to statutory interpretation. That is fine when the Court ruling is based on a clearly intended constitutional right. But that is wrong when a fair reading of the Constitution shows no such right was within the realm of intentions ...

The right of privacy was created by Justice Douglas in the Griswold case and was used as the basis of the later Roe v. Wade abortion case. It was created by a Supreme Court opinion which struck down a Connecticut anticontraceptive statute and found various "emanations" and "penumbras" throughout the Constitution which warranted the leap to creating a new right that has still never been fully defined. No one, including Judge Bork, argues that the Connecticut law was appropriate. Judge Bork even testified that there were other ways to strike down the law.

What he -- and many constitutional scholars -- objected to was creating such a new constitutional right when that right could not be found or derived from one of the provisions of the Constitution or our Bill of Rights. And he objected to creating a right that has no definition or clear limits. For example, does such a right prohibit a legislature from outlawing production and use of drugs in your own home? Does such a right prohibit outlawing prostitution?

The point is that just because one might be comfortable with the result of the Griswold case, does not mean it was well-reasoned or good law.

A PDF of the full statement can be downloaded here. Spokesmen for the McCain campaign could not be reached for comment.

By Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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2008 Elections John Mccain R-ariz. Sarah Palin