Since the New Deal, a fundamental dividing line between liberals and conservatives has been the power that the federal government has over different aspects of the lives of the people. Conservatives believe that, in the realm of privacy rights, the Constitution protects persons ONLY against those specific government actions expressly described in the Constitution (i.e. - the 3rd Amendment's prohibition against forcing the quartering of troops), assuming of course acceptance of the incorporaton doctrine (which posits that the due process clause of the 14th Amendment made the Bill of Rights applicable to the States). Yet knowing such a position is politically untenable, they soft peddle it, trying to separate that view from the issue of a woman's right to choose. Here is a standard
view:
I think Griswold was wrongly decided. But it has whatever force a 40-year-old precedent has; it is "good law" in that sense. And it's hard to see how the Supreme Court, even if it were inclined to overturn it, would ever have occasion to revisit it. One sometimes hears pro-choicers, trying to alarm swing voters, say that overturning Roe would put the right to contraception at risk. But I'm not sure how this would work in practice. Let's say the Court backed off a little on abortion, letting states, for example, ban third-trimester abortion. That backing off would embolden states to go further and set up challenges to Roe. The South Dakota legislature might, for example, enact a general ban on abortion and send it up to a Court with more conservative members. And maybe then you'd get an overturning of Roe. But no state legislature anywhere is going to enact a general ban on contraceptives, or a ban on unmarried people buying and using them. The Court won't eliminate the basic "constitutional" right to contraception because that right already has a more secure political footing than the Court's support for it: namely, the people's support for it.
See? He disagrees with Griswold - because he believes there is no right to privacy. But don't worry he says, no one will ever challenge it. Of course, the right to privacy is much more than just a right to contraceptives. It is, as Brandeis famously put it, the right "to be let alone." Conservatives do not believe persons have a right to be let alone protected by the Constitution.
They do believe, however, that persons (and the Supreme Court has defined "persons" to be corporations as well as individuals) have a right to have their property be "let alone." They rail at government interference with "economic rights" in ways that only equal their screeching on the right to choose.
Consider their reaction to the Kelo case, a decision much misunderstood by the Left. While the disdain from the Left was based on the belief that the Kelo decision created an opportunity for corporations to take advantage of the "little guy," the Right saw it a question of economic rights, indeed, as Jack Balkin described it, the creation of substantive due process protection for economic rights.
Liberals of course have a different view. Economic rights are protected through the just compensation clause of the 5th Amendment and the political process. It is our view that the Bill of Rights concentrated on individual rights for a reason, the rights of individuals can be trampled by the majority. Those holding economic rights generally have the wherewithall to defend their interests from majorities in the political process or through other means. And it seems clear that the Framers were correct in their assessment.
It is for this reason that, in many ways, a judicial nominee's views of Griswold and Roe and other individual rights cases is such a focal point -- it is a window to their judicial philosophies. That Scalia and Thomas and the late William Rehnquist were so disdainful of individual rights generally, and privacy rights in particular, provided the evidence needed to understand their views on all manners of issues. Consider their opinions and votes -- their disdain for individuals touches every aspect of their jurisprudence, from statutory interpretation to their weighing of evidence to their views of Congressional and State power to their views of Presidential power.
In many ways, Griswold and Roe are Rohrschach tests. Their answers on these two cases reveals their judicial souls.