So Right It’s Wrong

Recently, Justice Antonin Scalia shot his mouth off about another bit of “social” judicial opinion and managed to be correct to a fault again.  Here is the article.  Basically, he is of the opinion that if a specific term or phrase does not appear in the Constitution, then that subject is simply not covered.  Most famously, this goes to the continuing argument over privacy.  There is, by Scalia’s reasoning (and I must add he is by no means alone in this—it is not merely his private opinion), no Constitutionally-protected right to privacy.

As far as it goes, this is correct, but beside the point.  The word “private” certainly appears, in the Fifth Amendment, and it would seem absurd to suggest the framers had no thought for what that word meant.  It refers here to private property, of course, but just that opens the debate to the fact that there is a concept of privacy underlying it.

The modern debate over privacy concerns contraception and the first case where matters of privacy are discussed is Griswold v. Connecticut, 1965.  That case concerned the right of a married couple to purchase and use contraception, which was against the law in that state (and others).  The Court had to define an arena of privacy within which people enjoy a presumed right of autonomous decision-making and into which the state had no brief to interfere.  Prior to this, the Court relied on a “freedom of contract” concept to define protected areas of conduct.  Notice, we’re back in the realm of property law here.

People who insist that there is no “right to privacy” that is Constitutionally protected seem intent on dismissing any concept of privacy with which they disagree, but no doubt would squeal should their own self-defined concept be violated.  Therein lies the problem, one we continue to struggle with.  But it does, at least in Court tradition, come down to some variation of ownership rights—which is what has made the abortion debate so difficult, since implicit in it is the question of whether or not a woman “owns” her body and may therefore, in some construction of freedom of contract, determine its use under any and all circumstances.

Scalia would love to overturn Roe v. Wade and I have no doubt his pronouncement that women do not enjoy protection from discrimination in the Constitution is part and parcel of his desire to see the Constitution set in the same kind of stone as the Ten Commandments—unchanging, implacable, unadaptable.  Arguing that because something isn’t listed in the Constitution is an attempt to dismiss a priori any Court decisions that might address changed social conditions with which he doesn’t agree.

The Fourteenth Amendment addresses discrimination against citizens.  So, are not women citizens?  Of course they are, and Scalia likely would not argue they weren’t.  However, they, like certain minorities, are citizens with specific attributes that make them in some ways separate from others.  At least, in theory.  Does, for instance, the Fourteenth Amendment protect men from sexual discrimination?  It should, but the question would arise if men can be discriminated against on the basis of gender—at least, in a specific and nonuniversal way.  In other words, can a man be discriminated against on the basis of his genital configuration and its implications the same way a woman can suffer discrimination?

Scalia, as a strict constructionist, would like to believe that the framers intended that the Constitution never alter in its meaning.  This is impossible since context inevitably plays a role, and since times have changed and brought with them all manner of social adjustments not foreseen or even desired by the founders, his dismissals on these grounds of specific terminology are silly and even a bit pathetic.  Harry Blackmun wrote, in Roe, “The right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty…or…in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”  I think the same can be argued for any presumed protection against discrimination on any basis.

Everyone, even, apparently, Justices on the Court, seem to forget the Ninth Amendment.

But he does make a good point, that it is the Legislature’s job to enact laws to cover these things.  The purpose of the Supreme Court, at its simplest, is merely to vet these laws according to the Constitution.  If the Court, however, has already pronounced on a concept, why is it people seem content to sit back and assume that the matter is closed?  Shouldn’t laws have been enacted in the wake of Roe v. Wade to seal that right in legislation even more concretely than has emerged from a decision which could very well be overturned?

Published by Mark Tiedemann