Last month I argued for making good use of the Senate confirmation hearings of now Justice Samuel Alito as a “teaching moment” that would take to the country the real jurisprudential issues underlying the judicial confirmation process. We didn’t get this; what we had instead was an embarrassment to the country and a disservice to the American people and to the institution of the U. S. Senate, in spite of the eventual confirmation of a good man, who clearly demonstrated that he is in every respect a huge cut above his adversarial interrogators. So the debate we need was again postponed. However, in the process, a considerable amount of written opinion was distributed around the public square, some of it very instructive. One particularly good piece, written by U. S. Fifth Circuit Court Judge Harold DeMoss, Jr. in The Houston Chronicle, hit upon the thread that has for at least twenty years run through every judicial confirmation and, in my estimation, has also been a primary underlying contamination of the civil order that has plagued the body politic in general—the concept of the right of privacy. The finding of a generalized, unenumerated “right of privacy” was first recognized by the Supreme Court in the case of Griswold vs. Connecticut in 1965, and was located, according to that now famous phrase, “in the penumbras of the emanations” of the Bill of Rights. This dubious finding, of course, ultimately formed the basis for the discovery of the right to abortion in Roe vs. Wade eight years later. Judge DeMoss has an interesting proposition—to settle this corrupting issue once and for all and return to the rightful source of amendments to enumerated rights, take it to the ultimate authority that is the basis for constitutional law: we, the people, in a national referendum called by Congress and placed on the ballot in the November election. Only then can we halt this usurpation of the authority to amend our constitution.
This proposal is very unlikely to be implemented, but we may have no peace in the public square or hope for a return to civility in our partisan political deliberations until we excise this issue from its corrupting influence on the process at every level.