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January 10, 2006

Alito: Constitution Protects Right To Privacy

Also says "No President is above the law."

"When someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues," testified Alito, a federal appeals judge the past 15 years.

Is he lying? Or has he fully embraced the liberal penumbras and emanations regarding the alleged "right to privacy" in the Conhstitution?

I'm not sure it's either. I've mentioned this before (and had a lot of dissent about it, which I tried to "chill," to no avail) but I do think there is something in the Constitution's basic thrust about freedom, even if a particular freedom isn't actually named in it. Even a good conservative can hypothesize laws which are so nannystate, busybody, and anti-freedom that they might say could be ruled unconstitutional even lacking a clear textual reference to that subject.

I mean, honestly: Do you really think that the Constitution should permit the outlawing of contraceptives? Or, for that matter, oral sex?

I realize that this sort of allowance -- that the Constitution may guarantee more than what it actually, you know, guarantees -- is subject to a host of abuses, many of which are not hypoethetical at all, but rather "mainstream jurisprudence."

Fred Barnes says it's just how the game is played:

Well, I think the questioning's going to be pretty brutal by the Democrats, but I think it's going to be a cakewalk for Alito. Look, everybody knows now how you get confirmed. You don't do what Robert Bork did, and argue with Democrats over the right to privacy, and so on. What you say is, oh, that issue, you know, Senator, I would love to talk about it, but there's a very good chance it'll come before the Court next year, or the year after that, and I can't prejudge it. So I'm sorry, I just can't answer that.

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posted by Ace at 05:45 PM

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