The Supreme Court's Biggest Question





He had the right to remain silent. He knew that everything he said could and would be used against (and for) him. And yet, when Judge John G. Roberts Jr. was asked last week by Senator Arlen Specter, who heads the Senate Judiciary Committee, whether he believed the "right to privacy" existed in the Constitution, Mr. Roberts replied, "Senator, I do." History suggests that if he had not, Judge Roberts would have sunk his chances to become the 17th chief justice of the United States just 20 minutes into his 20 hours of confirmation testimony. So many Americans - and so many senators - now accept that concept as an organizing principle of modern life and law that Robert H. Bork's confirmation as an associate justice collapsed 18 years ago this month in the face of his refusal to find such a right.

"Where we're talking about private heterosexual conduct, we're not in a debate," said Pauline Maier, a historian at the Massachusetts Institute of Technology who studies America's founding era."But the controversy comes in those areas where people feel the private activity has an impact on the fabric of society as a whole, and that's where liberals and conservatives disagree. Fundamentalist Christians say homosexuality is awful and will damage society, and liberals say, 'If that's who they want to sleep with, let them.'"

The phrase"right to privacy" first appeared in an 1890 Harvard Law Review article by Louis D. Brandeis and his law partner, Samuel D. Warren. And as Judge Roberts noted, the notion began flowering 80 years ago in Supreme Court decisions that struck down laws that required children to attend only public schools and barred the teaching of foreign languages in elementary school, on the grounds that they violated the 14th Amendment's guarantee that no state shall"deprive any person of life, liberty or property without due process of law."

Such reasoning eventually led to Roe v. Wade, the 1973 decision that established a constitutional right to abortion, and for which"privacy" has become neutral-sounding shorthand.



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