July 19, 2005,
How did this all start? Several “strands” of major Supreme Court decisions, bound together, have dismantled older constitutional understandings and enshrined the new morality. On the questions of marriage, family, and sex, that string begins with the 1965 Griswold decision. In that case, a Connecticut law that outlawed the use of contraceptives, even by married couples, was ruled unconstitutional. Now, before you jump to conclusions, let me clearly state that this law was badly written, and I would not have supported it or its intent. Nonetheless, it is in this case that the Court “discovered” a “right to privacy” in the U.S. Constitution. Of course, such a right does not appear anywhere in the text of the Constitution. Rather, the Court’s majority discovered or invented such a right from the “emanations” and “penumbras” of rights found in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
It is significant that what seems to have been decisive in the minds of some of the justices in the Griswold majority was actually something quite traditional in the common law: the notion that marriage was a privileged institution into which law should not interfere. The case involved Planned Parenthood dispensing contraceptives to a married couple, and throughout the decision, it was marital privacy that was discussed. So, an aspect of the traditional moral view was a motivation for the Court’s majority decision: But the jurisprudential novelty it established the right to privacy would quickly become a constitutional wrecking ball.
Justices Stewart and Black were scathing in dissent, observing that while both disagreed with the law personally (as do I), they could find nothing in the U.S. Constitution that prevented the Connecticut legislature from making such a law (which had been on the books in the state since 1879). The dissenting justices mocked the reasoning of the majority, which in some cases based itself not on the Constitution’s text, but rather on the “traditions and [collective] conscience of our people.” How, asked the dissenters, could the Court know the conscience of the people better than legislators? Did not such reliance lead only to the substitution of judges’ “personal and private notions” for the decisions of legislatures? “Use of any such broad, unbounded judicial authority would make of this Court’s members a day-to-day constitutional convention,” warned Justice Black. And so it has been! Finally, Justice Black observed that “privacy” is a “broad, abstract and ambiguous concept,” lacking the specificity of a genuinely constitutional rule. However traditional it may appear in the guise of marital privacy, which as a legislator I support, this novel right was bound to do harm in our jurisprudence.
And so it was and so it did. Just seven years later, in Eisenstadt v. Baird (1972), the Court struck down a Massachusetts law that made contraception legal only for married persons. The distinction between the married and unmarried was breached, and the “right of privacy” became unhinged, essentially protecting (heterosexual) sex, as such, from any moral regulation.
Again, although I disagree with the Massachusetts law and its intent, the Court’s solution to the problem presented by such a law was neither judicious nor prudent: The Court in effect codified the sexual revolution then underway with the supremely powerful protection of a constitutional right. Marital privacy had now morphed into “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The arguably traditional marital dimension upon which the Court had discovered the new “privacy right” was simply dropped with respect to having heterosexual intercourse. Rather than encouraging the legislature to repeal an outdated law, the Court expanded further the ungrounded right to privacy.
The next step, of course, was Roe v. Wade, the abortion decision of 1973. Today, most honest constitutional experts agree that as constitutional law, this decision is a monstrosity, a pure act of judicial legislating with no warrant in the Constitution’s text. Having invented a “right to privacy,” a right with a special emphasis on sexual matters, the Court was driven by its new moral logic to extend protection to what was all too often the result of the new sexual ethic: unwanted pregnancies and their “termination.”
The Roe decision established an elaborate system of “trimesters” of pregnancy and delimited when the states might and might not have a “compelling interest” in protecting the life of the unborn, “balanced” against the “privacy right” of the mother. In immediately subsequent decisions, however, this elaborate system quickly became meaningless, a dead letter. By the Supreme Court’s lights, no legislative regulation of abortion was permissible, for abortion was, after all, a “fundamental right.” What could possible count as a legitimate weight in the balance against a “fundamental right”? In effect, Roe created a private license to kill a certain category of Americans, the unborn, and raised this license to a constitutional principle.
The strands of these Court cases had made the rope thick. The legal reasoning continued to evolve, and the right to (sexual) privacy approached its terminal point. In the 1992 case, Planned Parenthood of Southeast Pennsylvania v. Casey, the Court handed down a complex ruling on a Pennsylvania state law that sought to reduce the number of abortions by a whole set of restrictive measures. The Casey decision actually stepped back from some of the most extreme Court decisions that followed Roe: Certain measures to ensure “informed consent” are now ruled constitutional, for example. But finally, the Court would not allow any legislation in America that would actually prevent a woman from procuring an abortion she desired. That is the bottom line. And the reason for this is found in the so-called “mystery passage.” It formed the basis of the ruling: “At the heart of liberty,” Justice Kennedy wrote for the majority, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” The privacy right had now been expanded to its philosophical extreme.
Moral capital involves shared moral aspirations and norms, which for most of our founders was our human, legislative effort to approximate a transcendent moral order. I have been arguing that such moral capital is part of the common good. Here, however, the court tells us that liberty must mean that there is no common good: Each of us is locked in the prison of our own self-created moral universe. We are, each of us, lords of the world, divine legislators. There is no transcendent truth, no common truth, just myriad individual truths.
Where does the right to privacy go from here? As our culture continues to “progress” and old inhibitions are cast off, what boundaries what guardrails will be left? In his 1995 book Rethinking Life and Death, Princeton professor Peter Singer liberates moral theory and practice from any truths that pose an obstacle to our will to power and control. In that book he champions “neonaticide” that is, the legal destruction of newborn human beings with physical handicaps up through the 28th day after birth. Singer has been dubbed by his critics “Professor Death” but he professes his views from a tenured chair at Princeton.
Is Singer alone in promoting such a radical “concept of existence, of meaning, of the universe, and of the mystery of human life”? Unfortunately, he is not. Steven Pinker, a professor of psychology at Harvard, suggests that
we need a clear boundary to confer personhood on a human being and grant it a right to life. . . . [T]he right to life must come . . . from morally significant traits that we humans happen to possess. One such trait is having a sequence of experiences that defines us as individuals and connects us to other people. Other traits include an ability to reflect on ourselves as a continuous locus of consciousness, to form and savor plans for the future, to dread death and to express the choice not to die.
Under his definition a newborn is not human, and therefore the reality Pinker constructs would allow for neonaticide as well. Pinker points to that conclusion himself: “[S]everal moral philosophers have concluded that neonates are not persons . . . and thus neonaticide should not be classified as murder.”
How long will it be before the Supreme Court “discovers” that voices like Singer’s and Pinker’s, coming as they do from some of our most elite educational institutions, represent the evolving “[collective] conscience of our people” and bring us yet another expansion of the right to privacy?