The embarassment of privacy jurisprudence

I had meant to comment on this topic when John Roberts was confirmed as Chief Justice of the U.S. Supreme Court . But somehow I got sidetracked into a less short-term theological debate. So I thought I'd post now before I dash off to work.

Most literate Americans know that the Supreme Court's 1973 Roe v Wade decision struck down remaining state anti-abortion laws by appealing to a constitutional right to "privacy." Having been tutored on the issue by fellow Catholic Prof. Robert George of Princeton, for whom I once TA'd, I came to realize that the legal genesis of that appeal is not only bunkum but also known to be such by the most of those whose business is to study such matters. Thus on the occasion of Justice Roberts' confirmation, Robbie George wrote that

The Supreme Court's "privacy jurisprudence" began in 1965, in Griswold v. Connecticut. By a vote of 7 to 2, the justices invalidated a state law forbidding the use of contraceptives by married couples. (Laws of this sort had been on the books for decades, though they were rarely if ever enforced and most had been repealed by legislatures.) Lacking a textual or historical warrant for invalidating the law, Justice William O. Douglas, writing for the majority, claimed to find a "right of marital privacy" in "penumbras, formed by emanations" from a range of constitutional guarantees, none of which had anything to do with sexual conduct.

Douglas's quasi-metaphysical language elicited derision, and to this day remains an embarrassment to liberal constitutional jurisprudence. The justices would have done better to take the dissenting advice of Hugo Black, the court's leading civil libertarian. Black said that although he didn't like the law, the court was usurping the constitutional authority of legislatures by simply inventing a right that the nation's founders had not seen fit to enshrine.

Griswold was controversial in legal academic circles, where some worried about where the court would go once it liberated itself from text and history. (Earlier forays of this sort - as when the court in 1905 struck down state worker-protection statutes - had not produced happy results.) But with anti-contraception laws unpopular, the ruling produced no public outcry, and the court relished its expanded role. In 1972 it extended what began as a right of marital privacy to unmarried people. And in 1973 the justices handed down Roe v. Wade, striking down state abortion laws nationwide.

The Roe decision met not only with academic criticism - some of the sharpest coming from liberal scholars like Archibald Cox and John Hart Ely - but also with resistance from people who opposed abortion as a form of prenatal homicide. Although Justice Harry Blackmun, in the majority opinion, dispensed with the metaphysics of penumbras and emanations, he could not identify a compelling constitutional grounding for the right to abortion. He simply declared that the words "nor shall any state deprive any person of life, liberty, or property, without due process of law," in the Fourteenth Amendment, were "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

What Blackmun never told us, and couldn't tell us, is why the due process clause— which on its face is concerned with procedural matters—should be interpreted in this sweeping way. On what constitutional basis can we say that abortion is protected by "due process" but a right to assisted suicide - unanimously rejected by the court in 1997 - is not? Why is sodomy protected and prostitution unprotected? Why does the right to privacy not extend to polygamy or the use of recreational drugs?

Clearly, it is not the Constitution that accounts for the outcomes in the court's "privacy" cases; it is simply the moral and political opinions of the justices. The nation will be fortunate if Judge Roberts understands that the result of the court's invention of a generalized right to privacy has been 40 years of unprincipled—and unpredictable—constitutional law.

Indeed. "Penumbras and emanations" are only intellectual figleaves for raw will-to-power. The victims are conceived children who are never given the chance to be born. Let's hope John Roberts understands that well enough not to let stare decisis reign supreme—just as the Supreme Court, in 1954, did not invoke stare decisis to permit continued school segregation.