Liberty Corner: Privacy, Autonomy, and Responsibility

In a recent post I addressed portions of Judge Raymond Randolph's speech to the Federalist Society's National Lawyer's Convention on November 11. I focused on Judge Randolph's too-ready dismissal of all forms of substantive due process. In particular, I defended the substantive due process of Lochner (1905) and its progeny, which enforced the Constitution's explicit guarantee of liberty of contract.

But, as I wrote in that same post, "[i]n a single year (1934) the Supreme Court demolished liberty of contract and created out of whole cloth what amounts to an unlimited "police power" for the States -- liberty and property be damned." Police powers traditionally extend to public safety, health, welfare, and morals. Morals had to go when the "Age of Aquarius" dawned in the 1960s. Thereupon, the Supreme Court felt compelled to concoct (in Griswold v. Connecticut [1965]) a general right to privacy (not to be found or implied in the Constitution), with which it began to strike down -- as a matter of substantive due process -- certain legislation bearing on morals, most notably in Roe v. Wade (1973, abortion) and Lawrence v. Texas (2003, homosexual sodomy).

This post focuses on Judge Randolph's remarks about the concocted general right to privacy:

As Judge [Henry] Friendly anticipated [in an unpublished opinion drafted three years] before Roe v. Wade, and as many critics of [Roe v. Wade] have noted since, it is exceedingly difficult to see abortion as a right of privacy, even if such a right might be found in the Due Process Clause. Privacy deals with preserving seclusion, or with keeping personal information secret.

Although the Constitution does not use the term “privacy,” it is fair to say . . . that portions of First, Fourth Amendment and Fifth Amendments deal in certain, specific ways with protecting seclusion and secrecy. This still leaves the question why abortion is a right of privacy. Among its many faults, the opinion in Roe v. Wade never even attempted to supply an answer.

Over the years many people, lawyers and non-lawyers alike, have come around to Judge Friendly’s view that abortion is not about privacy. Only last month, Richard Cohen, a thoughtful columnist for the Washington Post who does not oppose abortion, wrote that the “very basis of” the Roe decision now “strikes many people as faintly ridiculous.” He continued: “As a layman, it’s hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is.” [Oct. 20, 2005 column]

The Court itself may have entertained similar doubts. In cases after Roe, a subtle change took place. The Court began stressing that the privacy involved was a woman’s “private decision” to have an abortion, with the Court often italicizing the word “decision.” But this explanation could not hold for long. It was not the decision to have an abortion that was at stake in Roe. It was the carrying out of that decision. People make all kinds of decisions in private. One person may privately decide to rob a bank. Another may decide in private to smoke crack cocaine. Someone else may decide to commit suicide, or to give a speech. That the decision is made in private says nothing about whether the person is exercising a constitutional right in carrying out the decision.

Precisely. As I wrote here:

Privacy, to the extent that it exists as right, cannot be a general right. . . . If privacy were a general right, a murderer could claim immunity from prosecution as long as he commits murder in his own home. . . .

The Supreme Court conveniently discovered a general right to privacy for the purpose of granting certain specific "rights" that it had somehow failed to recognize for nearly two centuries, overriding long-standing legislation in the process. From there, the Court went on to enshrine a peculiar conception of liberty, namely, autonomy without responsibility. Judge Randolph explains:

Maybe the Court realized as much [about the distinction between private decisions and the actions that follow them]. For whatever reason, the right of privacy, as first conceived [in] Griswold, no longer drives the Supreme Court in substantive Due Process cases, even in those involving abortion. In more than a decade, the Court has not decided a single case on the basis of a general right of privacy. Little appreciated, lost in the rhetoric of privacy, a transformation has occurred. Griswold and Roe have morphed.

Griswold’s zone of privacy for married couples and Roe’s right of privacy for women in matters of abortion have become everyone’s right to do as he or she pleases so long as there is no harm to others. This is the principle of John Stuart Mill and Herbert Spencer, a principle Judge Friendly rejected, as had Justice Holmes in his Lochner dissent. . . .

. . . The Court majority [in the mid-1980s] began framing the constitutional right involved in Roe not simply in terms of a private decision but in terms of “individual dignity and autonomy.” Planned Parenthood v. Casey, handed down in 1992, was the watershed. The joint opinion of Justices O’Connor, Kennedy and Souter described Roe as resting on a “rule (whether or not mistaken) of personal autonomy and bodily integrity . . . .” The opinion repeated several other times that “personal dignity and autonomy” were “central to the liberty protected by the Fourteenth Amendment” Justice Blackmun, in his concurring opinion, picked up on the theme. He re-framed his opinion in Roe as one resting on “decisional autonomy.”

Some thought the 1997 decision in Washington v. Glucksberg, the case rejecting a constitutional right to assisted suicide, put an end to the personal autonomy rationale. The Court rejected the idea that just because many of the rights protected under the Due Process Clause could be characterized as sounding in personal autonomy, “any and all important, intimate, and personal decisions are so protected.” Rather, any new Due Process right of this sort had to be firmly rooted in this country’s history and traditions. This at least gave the appearance – and the hope – that, in the guise of due process, the Court was not simply making it up.

But two years ago the Court turned its face from Glucksberg. Texas had a law making homosexual sodomy a Class C misdemeanor, a traffic ticket, punishable by a fine only. The Supreme Court’s opinion in Lawrence v. Texas held that the Texas law violated the Due Process Clause. The Court therefore overruled Bowers v. Hardwick, thus adding to the long list of cases the Supreme Court has overruled. Lawrence not only tossed out the analytical framework of Glucksberg, it contradicted a host of other precedents dealing with the States’ police power, precedents dating back to the 1800's. The Congressional Research Service, by the way, reports that through the October 2003 Term, the Supreme Court has overruled 324 of its past decisions, in whole or in part. So much for stare decisis.

Without mentioning Glucksberg or any of its state police power cases, Lawrence created a new constitutional right to engage in homosexual sodomy, at least if this were not done in a public square. Autonomy was back. Lawrence is full of rhetoric having only a remote connection to the facts of the case, and no clear connection to anything in the Constitution. After quoting the autonomy language of Casey, the Lawrence Court said this: “Liberty presumes an autonomy of self” and the “instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.” . . .

The . . . Lawrence opinion confirms Judge Friendly’s insight into the true nature of controversies of this sort. The “general rule,” the Lawrence Court wrote, is “against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person . . . ” This is John Stuart Mill writ large. The Court repeated the same theme later in its opinion, emphasizing that the case did not “involve persons who might be injured or coerced” – a statement nicely blending Mill’s no-harm-to-others principle with Herbert Spencer’s Social Statics. . . .

Judge Friendly wrote in his draft that the 14th Amendment did not enact Mill’s On Liberty. Lawrence v. Texas ruled otherwise. . . . To suppose that the 14th Amendment incorporated Mill’s principle, one would have to believe that at the same time Congress was telling Utah to abolish polygamy, it was sponsoring an amendment that would make any such state law unconstitutional. . . .

Among the Court’s failings in Lawrence was its inability to see, or if it saw, to admit, the many problems Mill’s principle raises. What kind of harm to others should be recognized? Why should a legislature be forbidden from legislating on the basis of morality? Is that even possible? . . .

When Mill talked about the absence of harm to others, and when the Supreme Court did the same in Lawrence, who exactly are the “others” they have in mind? The Court assumes that the “others” are only those living now. But what of the unborn and the generations that will follow us? They will be affected by the society we leave behind. I know of no principled reason to exclude them from consideration, even if Mill’s principle reflected constitutional law. And neither did Judge Friendly. . . . [A]fter stating the Mill principle, the Judge confronted it on its own terms. He wrote that even if the harm principle were constitutional law, the State had made a rational judgment in treating the fetus as an “other” worthy of protection. . . .

Mill’s principle, and the Court’s adoption of it, moves in the direction of radical autonomy. Some on the left, and some libertarians, welcome this. The Lawrence Court denied that it was imposing its own moral code. But autonomy is itself a moral value and it is one that tends to crowd out other values. As Jennings and Gaylin point out in their book The Perversion of Autonomy, “[a]utonomy now preempts civility, altruism, paternalism, beneficence, community, mutual aid, and other moral values that essentially tell a person to set aside his own interests in favor of the interests of other people” or the good of the community. . . .

The Lawrence Court never even acknowledged its countless decisions, dating back to the 1800's, which held that a State’s power to regulate – its police power – extended not only to the health, safety, and welfare of its citizens, but also to matters of morality. Even Lochner recognized this. Yet the Lawrence Court, ignoring this huge body of precedent, declared: “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . .”

. . . Throughout the country, in case after case, Lawrence and the reformulated Griswold and Roe are now being used in efforts to strike down a vast array of laws, some with deep historical roots. Lawrence is invoked in suits seeking to force states to recognize homosexual marriage. It is used as a defense to obscenity prosecutions; and to attack laws against pedophelia; adoption of children by homosexuals; prostitution; polygamy; sex offender registration; statutory rape; and the military’s don’t-ask-don’t-tell policy. A note in the Harvard Law Review plausibly relies on Lawrence to argue that there is a constitutional right to use marijuana for medicinal purposes. And a law professor has written a lengthy article using Lawrence to claim that laws outlawing consensual sex between a teacher and student in a state university are invalid under the Due Process Clause. Most of these efforts have not been successful – yet. But where it will lead is anyone’s guess.

The joint opinion in Casey, in a sentence the majority opinion in Lawrence adopted, wrote: “At 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.”

Judge Bork had this comment:

“This is not an argument but a Sixties oration. It has no discernible intellectual content; it does not even tell us why the right to define one’s own concept of ‘meaning’ includes a right to abortion or homosexual sodomy but not a right to incest, prostitution, embezzlement, or anything else a person might regard as central to his dignity and autonomy.”