Faces? Vases? |
The answer, of course, is both. But what if that option is not available? What if you have to choose? There is nothing in the picture itself that definitively tells you it's one and not the other. Whatever you interpret the picture to be, that's what it is. This is the very root of the most fundamental flaw in the argument against judges "making law." Because the very essence of what judges do--what no one disputes--is the act of judicial interpretation. And although most of the time one can simply follow earlier interpretations, this cannot always be the case. Those earlier interpretations had to origianlly come from somewhere.
Indeed, the process of interpretation repeatedly encounters situations where there is no cut-and-dried right answer, where (a) there is no earlier interpretation to follow, or (b) two or more previous interpretations clash with one another, or (c) (less commonly) situations have so changed that the earlier interpretation seems anachronistic, out of step with the broader sweep of the law.
Is there a right to privacy in the Constitution? This is a very stark example of the faces/vases dilemma. While there are many little (and not-so-little) examples that percolate up from the details of conflicting lines of case law, the question about a constitutional right to privacy seems to emanate from the very heart of our Constitution--a heart that whispers so softly, that different people hear different things. But whatever one hears, if one is honest one must admit that one is making law by interpreting it one way or the other.
I am quite comfortable saying there is a Constitutional right to privacy, and I am equally comfortable saying it is an interpretation that makes it so. It could not be otherwise.
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Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
There it is, plain as day, the assertion of un-enumerate rights. But, of course, that leaves entirely undefined what exactly those rights are. It's a sort of Incompleteness Theorem for Constitution. (Not to be confused with Kurt Godel's discovery of a logical flaw in the Constitution). By its very nature, this Amendment tell us that our rights do not derive from already written law, or else they could all just simply be written out. But our Founding Fathers clearly believed that was not possible. Rather, it seems much more sensible that they took the view that rights might be so taken for granted that they would never be properly recognized or considered until someone sought to take them away, or that changing circumstances might lead to the recognition of rights not previously considered as such. In any event, they shaped this amendment in such simple terms that they placed no set limits on what such rights might be, or how they might come to be recognized. It was, quite simply, the most open-ended statement of rights imaginable.
As part of her book Private Matters: A Defense of the Personal Life, psychotherapist Janna Malamud Smith (daughter of novelist Bernard Malamud) conducts a examination of the development of ideas and practices about the nature of the private sphere, particularly during the 19th Century. Although slaves represented an extreme example, it seems clear that privacy as we now conceive it, and its relationship to public life simply did not exist 200 years ago, except in rudimentary, embryonic form. Reading Malamud Smith, it seems a readily defensible position that (1) the Founders did not have in mind a modern sense of the right to privacy, (2) since such a sense was not readily conceivable to them, (3) but it's precisely what they had in mind abstractly as the sort of right they wished to protect.
Now, of course, this is not the sort of assertion that is easily proved--and indeed, it may even be a defensible position that such an assertion cannot be proved. But the prospects of disproving this viewpoint are even more remote, since one would have to show that Madison and the other Founders considered such a position and rejected it. This is, after all, what the doctrine of original intent would require.
No, it is much more consistent with the simple nature of the Ninth Amendment itself, as well as the nature of the Enlightenment--from which our entire philosophy of government comes--that it was crafted to respect the autonomous deliberations of future generations, and to keep prior restrictions on future liberty to a minimum. In short, my position is that the Constitution did not contain a right to privacy as written, because such a right as we know it today was not conceivable at the time. But it did create the preconditions for that right to emerge, which it did in the course of time.
A judge can make law either way--either seeing or not seeing a right to privacy in the Constitution. But either way, they are creating a new Constitution in place of the original, either a face or a vase in place of the ambiguous original. The process we have been through as a culture since that time is one akin to the process of cognitive development I have described before in terms of Kegan's subject/object model of the the self: More of what was once unformed, unknown, unknowable has shifted from subject to object, background to foreground, context to content, and we simply cannot pretend that things are just as they were 200+ years ago--or rather, we can pretend, but pretending will not make it so. We cannot return to a less developed, less self-conscious state--although we might want to pretend to. We must make new law--not just petty law, but Constitutional law, indeed, we must remake the Constitution itself as either enshrining or not enshrining a right to privacy.
The two versions of the Constitution are quite different form one another, and neither of them existed in the original. We have, either way, a living Constitution, one that has changed from what was written and first amended in the late 1800s. Only those who would deny it wish to fool us into thinking it has not changed, and such deception about the deepest aspects of lawmaking cannot be a sound foundation for Constitutional jurisprudence. We must know what it is we do, to the best of out abilities, or else we build our world on lies.
Barack Obama:
GLAMOUR: Is support for Roe v. Wade a litmus test for you in appointing a Supreme Court justice?
BO: You know, I taught constitutional law for 10 years at the University of Chicago. I feel very strongly that a right to privacy is part of the overarching structure of the Constitution. I think a Supreme Court justice who did not believe in that right, as well as the implications for gender equality, would not have the kind of judicial philosophy that I generally believe in.
It's not a litmus test. It's a vision test. |
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