In this scene from the episode, Leo should be saying, “Who forgot to pay the light bill?”
This morning while working out, I watched an episode from the first season of “The West Wing” (so early in the show that they hadn’t figured out yet that the “Mandy” character just didn’t work at all).
The overriding plotline of the episode, “The Short List,” was the nomination of a new associate justice to the Supreme Court. Everybody starts out excited that they’ve settled on Peyton Cabot Harrison III, a painfully stereotypical WASP with all the right credentials — Exeter, Harvard, editor of the law review, etc. (The moment you know for sure that he’s not actually going to get the job is when he finds himself alone in a room with Charlie, and says Charlie looks familiar, and Charlie says yeah, I used to caddie at your club.)
But just as they’re about to announce their pick, with all the absurd excess of ceremony that attends such nominations, a paper written by the judge three decades earlier surfaces. And in this paper he noted the fact that there is no blanket right to privacy guaranteed in the Constitution.
Which, of course, there isn’t, Griswold notwithstanding.
At this point, Harrison looks so much better to me, even though he is filled with pompous self-regard. But for White House senior staff, this is a deal-killer — so much so that, after months of deliberation that led them to Harrison, they decide, during one five-minute meeting with another guy from the short list, to offer him the nomination.
This is a happy ending on so many levels. Not only is the new nominee, Roberto Mendoza, Hispanic, but he went to public schools and came up the hard way. A very Capraesque ending. All the main characters are lined up outside the Oval Office to applaud as Mendoza exits — even though they couldn’t possibly have known that he would be offered the job in that meeting. (In fact, I think Harrison may still be waiting in another room of the White House, unaware that he’s no longer the guy.)
But it bugs me that the clincher for Mendoza was that he affirmed his belief in the “right to privacy.” Such faith is necessary since only faith gets you there — since there is no such right spelled out in the Constitution.
Apparently trying to enlist a larger share of the audience in applauding the decision, Sam Seaborn says:
It’s not just about abortion, it’s about the next twenty years. The twenties and thirties it was the role of government, the fifties and sixties it was civil rights, the next two decades are going to be privacy. I’m talking about the internet. I’m talking about cell phones. I’m talking about health records and who’s gay and who’s not. Moreover, in a country born on the will to the free, what could be more fundamental than this?
Well, several things, Sam. The right to freedom of conscience repeatedly affirmed in the First Amendment, for one.
Of course, you could say Sam’s completely right. He arrived at that conclusion before the Patriot Act (something that never happened in “The West Wing’s” 9/11-less universe), or the hysteria engendered by Edward Snowden.
But if he is, well, I suppose that helps explain that sneaking suspicion I sometimes have that by some cosmic accident, I was born into the wrong era…
Anyway, I think I’ve noted before how wistfully painful it can be to watch shows such as this, and, say, “Madame Secretary,” which assume that all the people running the country are serious, experienced, knowledgeable people earnestly striving to do the right thing.
Episodes such as this one, though, remind us that, as wonderfully lovable as the cast of “The West Wing” was (which was why Mandy had to go; she just didn’t meet that prerequisite), they weren’t perfect.
Still, I’d definitely take them over what we’ve got, in a skinny minute…
Related Posts
Here’s a fun tidbit that didn’t strike me until I was looking up this episode in order to write this: The guy who played the stuffy Peyton Cabot Harrison III was the same actor who played the grinning, hug-prone Hank Hooper on “30 Rock.”
Ken Howard, who died last year, evidently had a lot of range…
Maybe you should rename this, Brad Warthen’s Rerun Review.
You missed the point of the post. It’s about Griswold and the “right to privacy” that the Supreme Court
invented“discovered” in 1965…The Supreme Court shouldn’t be made to rule on issues such as privacy rights. Let our legislature decide that. We elect people to office. It’s their job, not the job of SCOTUS. The Constitution is a very simple contract. The word privacy is absent from its text.
Such an issue is to be decided not by the Constitution, but by a legislative body. The regulation of privacy should not be a judicial function.
Right, and I thought for a moment Harrison was going to make that point — about privacy being the province of legislators rather than judges — but I don’t think he fully made it, as I recall.
Bartlet brought up a couple of ridiculous scenarios in trying to defend the “privacy is a Constitutional right” position. First, he said, suppose a guy walks down the street wearing a wild, tasteless outfit — plaid jacket, striped pants, whatever. Does he have the right to do that? The judge said yes, under the freedom of expression guaranteed in the First Amendment.
So Bartlet then said, I like cream in my coffee. What if a law were passed saying we couldn’t have cream in our coffee — how would you like that? The judge said he wouldn’t like it at all, but there was no Constitutional bar to such a law. He hinted, or implied (I forget the exact dialogue) that it would be a political question, and (he might have gone on to say) obviously a very unpopular one that would not stand.
All of which made perfect sense to me…
Here’s the actual exchange:
The word privacy is absent from its text. So is the phrase “right to own guns”.
Brad just delete this. Best not to go down that rat hole.
Look, the 2nd Amendment is problematic, but “the right of the people to keep and bear Arms, shall not be infringed” is way, way, WAY more clearly stated than any “right to privacy.”
Of course, that comma renders it nonsensical, but if we accept that the Framers knew zip about commas and cast them into a paragraph at random, it makes sense…
I guess way, way, WAY more clearly stated is in the eye of the beholder.
I don’t understand your bugaboo about privacy. It seems sort of, well, self/evident as something at the heart of the Constitutional framework.
I get that you don’t believe abortion ought to be a right; but is there something more that I am missing? Or is it just if only that Griswald decision can be negated, abortion will be no more?
I’m perplexed.
Brad is of the “if you have nothing to hide, you shouldn’t worry about your privacy” mindset. Because nobody in the government would ever misuse their authority.
“I don’t understand your bugaboo about privacy. It seems sort of, well, self/evident as something at the heart of the Constitutional framework.”
Sure. It’s right there in the 4A.
It’s there to a lesser extent in the 5A,and it’s sort of implied in the 1A.
Right. Clearly delineated. And if there were a blanket privacy right, it would be there, clearly delineated. Like freedom of speech, religion, the press…
I find it intellectually offensive that, almost 180 years after the Constitution was drafted, justices “discovered” a hidden meaning that has such sweeping consequences, overriding considerations of life and death.
If we believe in being a nation of laws and not of men, that should be pretty startling, and worrisome, to the intellectually honest.
It also bothers me that modern liberals — that is, what we currently call liberals — get so offended if people don’t believe in it. I think it’s because they know how fragile the foundation of the presumption is, so they’re very defensive about it.
Doug and Bud will always say, “Oh, it’s just because Brad…” followed by something that bugs them about me.
But the thing that gets me, and should get everybody, is that the foundation is too shaky for what’s been built upon it. This is not the first amendment. It’s not in any amendment, except in the clearly limited, specific, historically grounded language that Bryan cites. It’s a more or less absolute right that is not clearly stated in our foundational document.
If people wanted such a blanket right to privacy, they should have worked to have it added as an amendment, not just wished really hard that it be so…
Except we have a government that continually has tried to push the boundaries of what what privacy means. Every step they take is an attempt to peer deeper into the private lives of citizens, And don’t get me started on asset forfeiture and eminent domain. I saw last week that a prostitution sting in Seattle also resulted in impounding the vehicles of 100+ “johns”. Why would that be necessary other than to collect even more revenue in fines, fees, etc.?
You went all Chicken Little on Snowden’s release of details about the government programs that infringe on the privacy of American citizens… falling back on the spoon feeding from the NSA that it was just “metadata” and “aggregated”… when it was nothing of the sort. What exactly has happened since then that lived up to all the fear mongering about exposing these questionable activities?
“Except we have a government that continually has tried to push the boundaries of what what privacy means. Every step they take is an attempt to peer deeper into the private lives of citizens.”
Except, you know, those statements are untrue — but I know that to you they’re true. To libertarians, that’s always been true and always will be true. That’s the way you perceive the world…
This is the way the government always looks to libertarians:
Oh, wait — Elián González was here illegally, wasn’t he? So this was a good thing, right?…
It was a bad thing he was here in the first place. Too bad his parents put him in that situation. But since they did that, the response by the government was over the top as usual.
So you would say that in 2017 there is less intrusion, invasion, and regulation of American citizens than at any point in history? When was it more intrusive?
And if it’s no big deal what the government does to its citizens, why do you get SO riled up by Snowden? Why did Obama say things had to change as a result of the leaks?
“Why did Obama say things had to change as a result of the leaks?”
Because of a thing called political pandering. Snowden got people upset over nothing, and Obama caved on it.
I don’t know where there is LESS intrusion, or more, or exactly the same. It’s not something I notice happening, something I’m not looking for at all because nothing has happened to make me think it was a concern, so obviously I’m not measuring it.
I know I don’t ever have to worry about that because libertarians are SO hypersensitive on the subject that they never stop going on about it, and if they ever start hollering about REAL intrusion, I’ll know about it.
Y’all are my early warning system. I know I can rely on you…
I don’t worry about jackbooted government agents by the way. I’m far more fearful of the bureaucrats in the IRS.
Well, then, we’re perfectly safe. I think I could take the average accountant…
I think I could take the average accountant…
Obligatory:
Then just accept that women have a right to their own self care – just as everyone does. Accept that and you don’t have to get all caught up in agitation about something that is not ever going to not be part of the human condition.
We weren’t talking about anyone’s “right to their own self care.”
And I have to say, Mark, replying that way to what I said above seems almost flippant, and unlike you.
I had tried to answer you seriously…
I didn’t mean to sound that way. I don’t care about the mechanics of Griswald one way or the other. It was the “right” decision – the humanist one.
I guess what bothers me is that is it Griswald that offends you; or is it the underlying issue of abortion? Because, to me, it seems you rail on the one when your dog whistle is really signaling the other.
One can argue the inherent right to privacy in many other areas besides abortion; though it seems pretty much a moot issue to me (the primacy of privacy). But I understand that abortion remains a flash point for some (on both sides of the issue). So if that’s the point, address that. I think that was why I sounded exasperated.
” It was the “right” decision – the humanist one.”
This is such a wrong way to adjudicate legal issues. Unfortunately, this results based method has a huge following. It’s most prominent in the folks who have this idea of a “Living Constitution”.
Again, value judgments are not things to be decided by judges. The people of our country are quite capable of making their own value judgments through the legislature.
I was suggesting that the legal process wasn’t the best one to follow – even if it got to the “right” answer.
I….I don’t even know what to make of that.
To my ear, suggesting that we shouldn’t follow the legal process in a legal proceeding seems like saying that we shouldn’t follow the rules of baseball in a baseball game.
No, I meant the opposite. I meant that we should follow the legal process we have developed over centuries to deliver sound and equitable decisions.
In this case, I was just saying the correct conclusion was reached (in my mind); not that it wasn’t a lot of unseemly sausage-making to get there. I would rather see the rule of law be seen as unassailable – and that the process comports itself as deserving of that standing.
The absolute “right” to abortion is indeed a terrible consequence of the Court having “discovered” a blanket right to privacy.
But don’t you see that Griswold, even without Roe, is an awful thing on its own, disrespectful of the Constitution and therefore of the Rule of Law itself?
I don’t lie, and I don’t try to mislead people. I ask that people who’ve read what I have to say respect me enough to acknowledge that. There’s no hidden meaning in my disdain for Griswold.
Roe is a terrible thing. Griswold is another terrible thing that underlies it.
And Bryan just put his finger on a terrible thing that underlies them both: the results-based approach.
In my last column before the 2008 election, I wrote about how disturbing it was that Barack Obama, in his last debate with McCain, had exhibited that kind of thinking. I thought it was a fairly insightful column, and I was very sincere in my dismay at discovering that about Obama, a guy I liked and respected a lot.
But what did I get? A lot of people saying “aw, this is just about abortion,” even though I had carefully explained why it wasn’t.
And if it WAS “just about abortion,” why would I hide that? Y’all know my views on the subject. I’m quite frank about that. This was a topic of which abortion was a subset. This was about a fallacy of thinking that can lead to a number of unsound views, one of which is the “pro-choice” position.
Here’s the critical part of that column:
Some people read that and thought, “There he goes on abortion.” Which I’m afraid is an unfortunate result of the way people’s brains turn off when the subject arises. They see someone who disagrees with them on that issue, and they stop listening.
Obviously, if it had been about abortion, I would never have said, “Mr. Obama shocked me,” because we all knew his position on abortion was not mine. No, very clearly — because I set it out very clearly — it was the things he said in defending that position that shocked me. They betrayed attitudes regarding our system laws, and about the proper nature of our federalist republic, that surprised me in a man as wise and insightful (normally) as Obama.
If he had just mouthed the usual nostrums about “a woman’s right to choose” there would have been no shock. But he chose to go beyond that, and it’s where he chose to go (even putting the inferred “right” to privacy on the same level as the First Amendment) that surprised and disappointed me.
I think there is one thing unsaid here which makes this differentiation all a bit more subtle than it appears.
Let’s forget the abortion issue for a bit, as you suggest these are related but different. Let’s just focus on the idea that there is a right to privacy (as found in Griswold) which is an underlying basis of our Constitution and country. Now, I can argue that such a right is a fundamental component of our understanding of what it is to be an American. And you can certainly agree to disagree that there is, in fact, any such concept underlying our Constitution. I think that is grounds for a healthy and rigorous debate.
However, what I think Obama was repelled by – and I share this viewpoint – is the idea that if there is a presumptive right to privacy, then that is something that should be legislated at the state level. I think he was strongly disagreeing with that federalist approach to this kind of personal issue. If there is a right to privacy which underpins the Constitution, then this is absolutely not an idea which should be subject to restrictive legislation in any particular state house in the nation.
We recently saw this with gay marriage. The true tipping point was when people saw how fundamentally unfair to people such a states’ based approach was to all Americans. Personal rights and freedoms are something best addressed at the federal level – and not ad hoc by state; especially when punitive and not more expansive. Expanded rights are a slightly different, though no less complex, animal.
We already went through that with the slavery issue – and the founding fathers knew well that they were kicking the can down the road on that one. They knew what the “right” answer was (all people are created equal and have certain unalienable rights), they just couldn’t quite get there in the 17th century.
You mean the 18th.
When you or President Obama or anyone wants to make a sweeping change — what I would call minting a new right — of course you argue against federalism, and against democracy. You don’t want the people across the country to be able to act to have THEIR will considered through the political branches.
And that bothers me. It bothers me the way lobbyists trying to push through laws on the federal or state level try to circumvent the will of states and cities — such as passing a state law forbidding localities from banning plastic grocery bags.
There’s an absolutism in, say, getting courts to declare the existence of a blanket “right to privacy” that negates some of the best things about our way of government….
I’ll take it to another level…
Ever since I first studied the Constitution in school, I’ve marveled at the way “Congress shall make no law abridging…” expanded to “NOTHING, at any time or anywhere shall abridge…”
Correct me if I’m wrong, but wasn’t the original idea to demonstrate to states that the power of this new federal government would be limited — that Congress would be allowed to do some things, but definitely NOT allowed to do others. This, I thought, was a selling point to get states to surrender some sovereignty.
But then it expanded into a whole other thing.
Don’t get me wrong here: Having the freedom of the press be more or less absolute is a wonderful thing. You can’t be a “free country” without that, or without freedom of speech. I think this is awesome — but I have to admit that I’m being results-oriented in thinking that way. Because that’s not the way it was written.
I’d be interested to read a good explanation of how we got to blanket, general rights from “thou shalt not” statements aimed specifically at Congress.
On the whole, that process made America. But I remain a bit unclear on how that happened. Was there a specific court case that expanded these limitations focused on Congress into blanket rights guaranteed to Americans? Or was the process gradual and evolutionary?
Anyway, since I wonder how that happened, great as it is that it did happen, you can see how, confronted with people insisting that something that isn’t even in the Constitution is suddenly a blanket right enshrined in that very document, I tend to go, “What the what…?”
Anyway, I return to my original point: If you want a right to privacy to be guaranteed by the Constitution, go through the strenuous process of amending the Constitution.
Same thing with any new right, if you’re saying it’s a Constitutional right as opposed to, say, a natural right. Don’t change the world by a court saying, “It’s in there, believe me — you don’t have to be able to see it.” PUT it in there. And if you can’t, then it shouldn’t happen.
I mean, pass statutes as much as you like (as long as they don’t violate the Constitution). But don’t claim something’s guaranteed by the Constitution based on wishful thinking…
How about this: Can you even conceive of an American archetype which is not, among a number of others, based upon the idea that we have a fundamental right to privacy? Not out and about in public of course when we so specifically chose to place ourselves beyond this basic conception; but is not everything about our civil order based upon this premise?
Forget Griswold, forget Roe vs. Wade. Just explain to me why an expectation of privacy is not fundamental to what it means to be an American. I don’t think it can be done…
I don’t know about the being an American part, but having respect for other people’s privacy is a basic principle of civilized behavior. Of course, it’s not absolute. More than 99 percent of the time, a civilized person respects the privacy of others. But other times, the civilized person has an obligation to intervene — say, if he sees that in the privacy of his own property his neighbor is beating his children to death.
And this is where I run afoul of the “rights” people. I don’t think in terms of Person A having a right to privacy, something he can assert in court and use to bludgeon others about the head and shoulders with when they, in his opinion, violate that right.
I think in terms of Person B having a basic obligation, as a member of a community, to respect Person A’s privacy the great majority of the time.
It’s because I think in terms of our responsibilities to each other in a community, rather than our absolute rights as individuals.
It’s a communitarian, rather than a libertarian, approach.
It’s hard to explain to people, though, because we are so brainwashed to think in “rights” terms — a habit of thought that rips at the fabric of society, with individuals concentrating on their “rights” as individuals, and to hell with everybody else.
In a society in which we accept responsibilities to each other, there’s no need to wall ourselves off from each other with absolute “rights”…
Life, liberty, and the pursuit of happiness. Pretty simple concepts that are inalienable and enumerated explicitly. You can’t have liberty without privacy.
Yes, Brad, but you think it is your responsibility as a communitarian to tell others what to do when you think you know what is best for them. Your desire to “help” supercedes the other person’s right to privacy. It’s the Big Daddy approach. Treat everyone as if they are your child.
It’s true that I view life from the perspective of a father, rather than the perspective of a child.
Vote Grownup Party!
The libertarian party is the true grown up party – it’s based on the concept of self reliance and personal responsibility. The exact opposite of what a child is.
Another name for the “Grown Up” Party would be the “Busybody Party”. Focused on minding other people’s business and imposing their holier than thou morality on others.
Yes, Doug, we know that’s what you think. Libertarians think being responsible only for and to themselves is being a responsible adult. Because libertarians think that, believe that, cling to it fiercely, it’s hard for me ever to relate to the way they view practically any policy issue..
Brad,
I have a different spin on “rights.” Rights are granted, not demanded. Or that’s the way it ought to be. Rights are conferred by a society because they represent who we are. Rights are like leadership in this sense. Yes, someone can say “I’m the boss” and assert themselves as in charge, but we don’t ever give that the same legitimacy as a true leader would hold. I think your distinction between individual rights and group responsibility is too broad; that they real answer lies in between these poles.
So I think that your statement that rights are an assumed societal construct squares with the thinking of the Founding Fathers. It was so self-evident that they didn’t even need bother describing the basic premise, they described what would flow from this inherent right instead. That seems to make the most sense to me.
That’s why I don’t like the way Griswald was elucidated as law, but yet still believe that privacy (the right to be ourselves) is the fundamental basis for our Constitution.
Personal responsibility includes treating others ethically. As much as you want to try and claim that it is about selfish loners, it’s not. It just is about not expecting others to meet your personal requirements.
It’s about “I should behave this way” instead of “You should behave this way”.
And just as you say I mischaracterize you…
I do not expect others to meet my personal requirements.
And I do not believe “you should behave this way.”
Just FYI…
This is what the “grown up” party gets you:
http://reason.com/blog/2017/09/11/bikini-baristas-file-suit-against-everet
Grown ups deciding what is appropriate dress for coffee baristas. It’s nobody’s business what someone wears. Ever.
Exsqueeze me?
So, an employer can’t tell an employee what to wear to work? No uniforms, or anything like that? Waiters can’t be told to wear black pants and white shirts?
Soldiers can’t be told what to wear? Will drill sergeants in Doug’s world say, “You slimy worm! Are you out of uniform? If so, that’s fine! Whatever YOU feel — that’s what matters to me and Uncle Sam. You say you want to wear an enemy uniform, because they’re more your style? That’s A-OK with me!…”
If a kid wants to go to school naked, I suppose Mom and Dad have NO right to say, “Put on clothes.”
I could go on and on, because “It’s nobody’s business what someone wears. Ever.” is a statement without bounds…
I think the better response (as often comes up in legal arguments) is:
What’s the limiting principle to that statement?
I was speaking about it being nobody’s business in government to decide what people wear in a private business. But you knew that.
Just like it is nobody’s business in government to decide what can be sold at what time of day or day of week. Yes, including alcohol.
No, I didn’t know that. I was reacting to what you said. I didn’t follow that link. I had seen the headline earlier this morning. I ALMOST clicked on it then, in case there were pictures of the baristas in the offending bikinis, but I resisted the temptation. I can’t say I always do that, but since I did this time, I’ll brag on myself…
Mark is 100% correct. If we don’t have a right to privacy then really what’s the point of ANY rights. Clearly Griswold got this right.
Still my favorite Griswold:
Are you watching “Madame Secretary” yet? Good show, not a great show, and doesn’t find itself until well into the first season.
Yeah, we’re well into the second season and enjoying it…
evidently there are rumors that we may be getting a Madam (Haley) Secretary soon…
… which beggars belief…
It’s astounding how far a person can get just with poise and social graces.
The only thing more amazing than that is how far someone can now get without those things — as proof of that, we have her boss…
I was suggesting that the legal process wasn’t the best one to follow – even if it got to the “right” answer.