Editor’s note: This article first appeared in the The New York Times.
When John Roberts, President Bush’s nominee for chief justice of the Supreme Court, told the Senate Judiciary Committee last week that “the right to privacy is protected under the Constitution in various ways,” some saw this as contradicting a memo he wrote while serving in the Reagan administration in which he referred to the “so-called ‘right to privacy.’ ” The confusion may stem less from Judge Roberts’s lack of candor than from the political and legal morass brought on by a string of dubious decisions by the Supreme Court over the last 40 years.
While the word “privacy” does not appear in the Constitution, this does not mean privacy rights are not protected. Certain provisions plainly protect people against governmental intrusion, like the Fourth Amendment’s ban on “unreasonable searches and seizures.” And these provisions have implications that extend beyond what the framers could possibly have envisioned; by logical extension, the Fourth Amendment protects people’s electronic files just as it protected the parchment letters of the late 18th century.
Nearly everyone recognizes these privacy protections. Where dispute breaks out is on the question of whether the Constitution contains a generalized right to privacy of the type used by judges to invalidate laws prohibiting contraception, sodomy and abortion.
The idea of a general constitutional right to privacy has wide public support, especially in liberal circles where people approve of the uses to which it has been put. But even supporters have to admit that judges who have invoked this putative right have been unable to identify a constitutional basis for it. Tellingly, none has asserted that the framers and ratifiers intended to create a generalized privacy right in whose name abortion, for example, could be immunized from legal regulation. Before the Supreme Court’s decision to inject itself into the abortion fight, it was widely considered the right of legislatures to determine such matters.
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 (Laws of this sort had been on the books for decades, though they were rarely if ever enforced and most had been repealed by legislatures.)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.