David Frum


How Unrestrained Was the Dissent?

A generation ago, the single case most despised by legal conservatives was Griswold v. Connecticut, the 1964 case that inscribed the "right of privacy" into the Constitution. At issue was a Connecticut law proscribing the sale of birth control. Justice William O. Douglas argued for the majority that—taken together—"emanations" from the 3d, 4th, 9th, and 10th amendments created a "penumbra" in which could be located a constitutional right to sexual freedom.

That right to sexual freedom might not be written down, but it could be inferred (so Douglas said) from the structure of the constitutional scheme.

Griswold would become the basis for abortion rights, gay rights, and other constitutional innovations—and also for conservative revulsion and derision. From a conservative point of view, the right to sexual freedom was not so much inferred as constructed.

Now I read this in the dissent from the Obamacare case, contending that it is unconstitutional for the federal government to use its (undoubted) spending powers to induce states to expand their Medicaid coverage:

What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.

Question for next year's law exam: what is the difference between the logic of the Douglas majority opinion in Griswold and the logic of the dissent in the Medicaid section of the Affordable Care Act case?