Thursday, January 26, 2006

A critique of Griswold to Lawrence

It seems to me that the line of cases from Griswold v. Connecticut (1965) to Lawrence V. Texas (2003) represents the legal equivalent to Deus ex Machina.

I’m sure this is not a novel concept, but it strikes me that the ill-fit between the Griswold-Lawrence line and the majoritarian will of the polity, as expressed through legislation, stems from the Court’s effort to force a right to unfettered private action out of the Bill of Rights through an attenuated analysis of a mythical “penumbra.” I want to express two points here: 1) in finding a “right to privacy through the 4th and 5th, the Court is not talking about “privacy” in the same way as the words of the amendments and pre-1960 case-law suggest the right to be and 2) the Court doesn’t need to create a new “privacy” right where other rights are directly applicable. (Note, the rooting of a “privacy” connection to the 3rd and 9th Amendments does not appear to be followed or cited after Griswold so I have not dealt with it here. As an aside, the use of the phrase “the people” in the 9th suggests that the Framers intended this to apply to the rights of the society as a whole, not individuals within that society.)

To suggest that the 4th and 5th Amendments have an inherent application to a social right of “privacy” is no great stretch of law or logic. We aren’t trying to find “penumbrae” through the direct application of the concept that there is an established right to protection of person and property from unlawful search and seizure. However, this right to privacy exists, not for the individual benefit, but (as is true for other rights in the Constitution) for the collective good.

To follow this out, security of my person and property from the invasion by others, through unlawful means, is only secured by maintaining a rigid application of process. If I let such an invasion occur on another, my own security is compromised. The 4th and 5th Amendments cannot mean more than this by their plain wording and the attenuated connections to INDIVIDUAL privacy and liberty, by ignoring the underlying purpose of the amendments, corrupts them to be little more than “truisms;” that I have a right to my own thoughts and any actions not rendered impermissible by society.

Furthermore, the Scalia “List” of evils that may follow the dismantling of a social right to “morals legislation” (Lawrence) is an accurate portrayal of the consequences of the misapplication of the 4th and 5th by characterizing them as engraining an individual right to private action in law. Thus, the claim in Lawrence that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” is nothing more than an unsupportable and untenable claim that society cannot legislate in any area of life that has a moral dimension that cannot pass the strict scrutiny test. So, why not consensual incest or bestiality or even suicide. The Majority doesn’t answer the Dissent on this point because, I would argue, they can’t.

More importantly though, the Griswold to Lawrence Courts didn’t need to look for mythological penumbrae in the ether when the 1st Amendment has a direct application to matters of individual liberty and privacy. (SCOTUS explicitly stated that there was one in NAACP v. Alabama in 1958.)

Like the 4th and 5th, the 1st is a social good in that my enforcing of another’s right to his own thoughts and expressions is the best defense of my own liberty interest. However, there is an individual liberty interest expressed in the words of the 1st. Furthermore, we know, from a long line of SCOTUS decisions on the meaning of the 1st amendment, that the most publicly despised thoughts and expressions are protected under the 1st. Is it such a stretch to apply this line of reasoning to contraception and private acts of sexual intimacy?

Surely the same Amendment that permits a man to spit and stomp on the American flag before he burns it in front of a crowd of angry cops and veterans has a direct application to homosexual intimacy in the privacy of one’s own home? Surely an amendment that protects a man’s right to read pornographic material in his own house applies to the decision of a couple, hetero or homo-sexual to engage in acts generally considered “lewd” by the society at large?

Against this backdrop, the twisting of the 4th and 5th Amendments strikes me as both unnecessary and dangerous. Whereas the 1st Amendment has no application to the regulation of public policy as it relates to public benefits and can be controlled by confining it to individual acts rather than social change, the 4th and 5th, as a baseline of social rights, cannot. Maybe this is the point.

Might it be that Courts from Griswold to Lawrence avoided using the 1st precisely because it would not further “liberal” social interests to which the legal profession has become attached? It is generally believed that the legal profession, as a whole, and legal academics, in particular, are inclined towards a fairly radical social libertarian perspective. Might it be that this line of cases represents an individual victory of our elite profession over the majority?


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