America's Unwritten Constitution: The Precedents and Principles We Live By (21 page)

Perhaps the most illustrious instance of judicial protection of a lived right occurred in the 1965 case of
Griswold v. Connecticut
. Connecticut had purported to criminalize the use of contraception, even by married couples in the privacy of their own bedrooms, prompting the Supreme Court to strike down the state law as unconstitutional. Seven of the nine justices voted to recognize a right of sexual privacy within marriage. Today the decision’s bottom-line result is accepted—indeed, celebrated—by judges, politicians, academics, journalists, and ordinary citizens from virtually every point on the political compass. Yet disagreement persists about exactly why the result in
Griswold was
so obviously right.

Writing for the
Griswold
majority, Justice William O. Douglas famously proclaimed that a general “right of privacy” could be found nestled between the lines of the Bill of Rights. This approach, deducing implicit constitutional rights by probing explicit constitutional clauses to identify their unifying spirit and purpose, is of course a splendid way to identify unenumerated rights. But Douglas, a justice notorious for his nonchalance, did a sloppy job proving his specific case, breezing through clauses that did in fact foreshadow modern privacy ideology (in particular, the Third and Fourth Amendments) while stretching other clauses past the point of plausibility.

Douglas began his breezy tour of the Bill of Rights by emphasizing the First Amendment rights of “association” and “assembly.” (The first word was itself merely implicit in the amendment, while the second appeared explicitly via its cognate in the First Amendment’s affirmation of “the right of the people peaceably to assemble.”) Unfortunately for Douglas’s general argument, the original meaning of the amendment’s assembly and association principles had little to do with the private domain of human sexuality. The core Founding-era right of “the people” to “assemble” centered on citizens’ entitlement to gather in public conventions and other
political meeting grounds. This original vision was miles removed from the erotic urges of a man and a woman seeking to “assemble” on a bed. Douglas also relied on the self-incrimination clause of the Fifth Amendment, which provides that no person “shall be compelled in any criminal case to be a witness against himself.” Douglas claimed this clause affirmed “a zone of privacy,” but this, too, was a stretch. With a grant of immunity from prosecution, the government may, consistent with the self-incrimination clause, compel a person to divulge the most intimate sexual details. (Just ask Monica Lewinsky.)
²⁸

Writing separately in
Griswold
, Justice John Marshall Harlan II found a sturdier basis for invalidating the Connecticut law, which ran afoul of the actual lived experiences of ordinary Americans: “Conclusive, in my view, is the utter novelty of [Connecticut’s] enactment. Although the Federal Government and many States have at one time or another had on their books statutes forbidding the distribution of contraceptives,
none, so far as I can find, has made the use of contraceptives a crime
” (emphasis added). For Harlan, a right of married spouses to use contraceptive devices in the privacy of their bedroom was a basic element of America’s lived Constitution.
²⁹

Alas, Harlan overlooked the words of the Fourteenth Amendment that best made his case and best fit the facts before him: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Instead, Harlan leaned on the amendment’s adjoining passage: “[N]or shall any State deprive a person of life, liberty, or property, without due process of law.” Harlan’s reliance on the due-process clause is understandable but unfortunate—understandable, because many pre-
Griswold
cases had used this clause, whereas very few had rested on the privileges-or-immunities clause; unfortunate, because the Court’s ultimate responsibility is not to thoughtlessly exalt the case law but to thoughtfully expound the Constitution.

When we carefully examine the Constitution, we see that the clause relied on by Harlan seems quite unpromising. This clause suggests that government may indeed deprive persons of life, liberty, or property, so long as proper legal procedures are followed. However, Harlan and his colleagues failed to identify any procedural problem with the Connecticut
law, which had been duly enacted by the state legislature in conformance with standard legislative protocols (such as bicameralism) and was being duly enforced in keeping with ordinary legal procedures (impartial judges, properly selected juries, fair rules of evidence, and so on).
^*
The Court’s real objection to the law was not procedural but substantive. No law, regardless of the niceness of its procedures, could properly intrude into the private space of consensual conjugal relations in the marital bedroom. The outlandish Connecticut law flunked a privacy test, not a process test.

Although the constitutional language that Harlan invoked seems precisely off-point, the clause that he overlooked was spot-on. That clause bars all state abridgments of basic “privileges” and “immunities,” regardless of procedural pedigree. The entire turn of this clause naturally invites readers to ponder the need to insulate private domains from governmental intrusion. Conceptually and etymologically, “privacy” and “privilege” are linked, and the clause further suggests that certain areas should simply be “immun[e]” from governmental intrusion or regulation.

Harlan built his edifice on a phrase—“substantive due process”—that borders on oxymoron. Substance and process are typically understood as opposites. The phrase comes from judges, and the underlying concept has been deployed by judges in some of the most notorious Court opinions in American history, including the proslavery 1857 ruling in
Dred Scott v. Sanford
and the pro-sweatshop 1905 decision in
Lochner v. New York
. Because of the tainted lineage of the substantive-due-process doctrine, Douglas and most of the other justices in the
Griswold
majority loudly denied that they were relying on this doctrine or doing anything like what the Court had done in the so-called
“Lochner
era,” in which the justices had invalidated a wide range of laws aiming to protect workers from employer exploitation.
³⁰

By contrast, the privileges-or-immunities clause comes directly from the Constitution itself—and therefore from the citizenry that ratified this language. The clause naturally directs interpreters to muse upon the wisdom
of ordinary citizens rather than the case law of judges. Many of the privileges and immunities
of
citizens may be found by paying heed
to
citizens—what they do, what they say, what they believe. This is in fact what Harlan did in his pivotal sentence when he directed attention to the “conclusive” fact that citizens in virtually every state and every era had in fact practiced consensual marital sex wholly free from governmental intrusion.

Some have argued that the due-process clause holds special promise as a sturdy guarantor of rights because it appears twice in the written Constitution—first in the Fifth Amendment announcing a right against the federal government, and later in the Fourteenth Amendment proclaiming a right against states. But as we saw earlier, the Fourteenth Amendment’s privileges-or-immunities clause, in tandem with companion language safeguarding citizenship rights in the amendment’s opening sentence, also vests citizens with fundamental entitlements against both federal and state officials. Just as the amendment incorporated the federal Constitution’s basic set of rights against states, so it also incorporated the Reconstruction-era vision of rights back against the federal government. The amendment’s big idea was that the basic rights of American citizenship, rights both substantive and procedural, should apply fully and equally against all American governments—federal, state, and local.
³¹

Skeptics have wondered why, if the Fourteenth Amendment’s privileges-or-immunities clause truly was designed to incorporate basic constitutional rights against states, including the Fifth Amendment right to due process, the Fourteenth Amendment immediately went on to explicitly restrict state abridgments of “due process.” The simple answer is that the Fourteenth Amendment’s opening sentence, and its companion language guaranteeing privileges and immunities, protected only citizens. The amendment’s due-process clause aimed to make clear that even noncitizens—all “persons,” including aliens—were entitled to fair procedures.
³²

Some devotees of substantive due process have argued that their preferred clause directs the reader’s gaze to the crucial and attractive concept of “liberty.” Justice John Paul Stevens, who eventually took Justice Douglas’s seat on the Court, was particularly fond of referring to “the Liberty Clause” of the Constitution.
³³
Nice try, but not quite. The clause speaks of “life, liberty, [and] property” as a trio. The clause is thus no more a liberty
clause than a property clause. If governments under this clause may restrict property so long as they follow proper procedures, then the same grammatically holds true for liberty. If, conversely, fair procedures do not suffice when liberty is restricted—the approach favored by Harlan and Stevens—then the same would logically hold true for property. This could take us back to the bad old days of
Dred Scott
and
Lochner
, when the Court in fact did use the clause, outrageously, to insulate various property holders, including slaveholders and sweatshop owners, from perfectly reasonable governmental regulations endorsed by a broad swath of ordinary citizens.

Thus, the best textual foundation for a lived-Constitution approach of the sort that Harlan championed in
Griswold
was not the overworked due-process clause but the overlooked privileges-or-immunities clause. Though Harlan reached the right result and for many of the right reasons, he missed a golden opportunity to illustrate how tightly America’s written and unwritten Constitutions intermeshed on the facts of the case.

THE EXTREME OUTLANDISHNESS
of the Connecticut contraception law, when measured against the actual experience of Americans at all times and in all places, made
Griswold
an especially easy unenumerated-rights case under a lived-Constitution analysis—too easy, in fact. Most officious laws will not be quite so eccentric and intrusive, yet many may still merit condemnation as contrary to basic rights as ordinary Americans have come to understand and practice these rights.

Consider, for instance, laws prohibiting the
distribution
of contraceptive devices to
unmarried
adults. There was a time in America when such laws were routine, but the sexual revolution of the mid-twentieth century rendered the statutes of this sort still on the books after 1970 at odds with actual social practices and norms of ordinary law-abiding Americans. Unsurprisingly, it was precisely in the early 1970s—in the 1972 case of
Eisenstadt v Baird
, to be specific—that the Supreme Court struck down these outlier statutes. Unfortunately, in so doing the Court once again overlooked the privileges-or-immunities clause, thus making it harder for ordinary Americans to see the obvious connection between the Court’s commonsensical holding and the Constitution’s plain meaning.
³⁴

Many loving couples in modern America have at times engaged in oral
sex and anal sex as forms of contraception, channeling their romantic urges into nonprocreative expressions of physical intimacy. In 2003, the Court struck down a Texas statute and a handful of other state laws that purported to criminalize some of these intimate acts. Justice Anthony Kennedy’s landmark opinion in the case,
Lawrence v. Texas
, is widely celebrated today for its soaring philosophical ode to liberty and equality.
³⁵

Lofty language aside, Kennedy also wove into his opinion strong threads that recalled Justice Harlan’s more modest empirical approach: “Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private [for much of American history]. It was not until the 1970s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so.…Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them.” Noting that as of 2003, only thirteen states had laws on the books prohibiting consensual adult sodomy, four of which enforced their laws only against homosexual conduct, Kennedy stressed that “in those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to adults acting in private.” In short, enforcement of sodomy laws against private adult consensual conduct ran hard against the actual lived practices of twenty-first-century Americans.

On the other side of the empirical spectrum, the Court’s 1973 ruling in
Roe v. Wade
cannot be justified by recourse to the actual practices of Americans at that time. According to Harvard University law professor Laurence Tribe, every state except perhaps New York had laws on the books at odds with
Roe’s
sweeping vision of abortion rights.
³⁶

This fact alone does not doom
Roe. A
right may properly exist and deserve judicial enforcement on grounds that do not depend on America’s lived Constitution. For example, if a right is expressly enumerated in the terse text or reflects a principle plainly implicit in the written Constitution (whether in a specific clause or in the instrument as a whole), or forms an integral part of the process by which the document was enacted or amended, then such a right is a full-fledged constitutional entitlement worthy of protection even if it runs counter to actual practice.