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View Diary: Roberts: Neutral on The Right To Choose? Well How About the Right To Privacy? (115 comments)

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    your interpretation of the commerce clause doesn't seem consistent with current law. Raich v. Ashcroft says even if you grow the contraceptive in your own back yard, the government can still forbid it as long as it is fungible with a product in interstate (black market) commerce. That expansive interpretation of the commerce clause combined with a strict constructionist interpretation of the rest of the Constitution makes for an especially cramped view of liberty. It's hard for me to imagine that the founders conceived of the commerce clause as a lever for the state to interfere with personal decisions about health, marriage, and generally what we would call "the pursuit of happiness."

    I can't argue that the reasoning in Griswold makes much sense even though I think it reaches the right result. Penumbras and emanations? My eyes just can't roll far enough up into my head when I read that. But I do agree with the view that the full scope of liberty guaranteed by the Due Process clause is not contained entirely in the enumerated rights.

    I'm not so sure about your average garden-variety Joe Conservative who thinks he wants judicial conservatives on the Supreme Court really disagrees with me on that last point. I guess that what bothers me so much about the current nomination process. We appoint a man who will make the law of the land for thirty years who may hold the very views you do - say that the Federal government is empowered to forbid married couples from using contraception - but the nominee is thoroughly coached to ensure that he says nothing that would bring this probably very unpopular view to light. (I'm sure I could think up some equally egregious examples on the left as well.) The system seems broken.

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