Judge David H. Souter has been warned: the liberal activists have surveyed his record as New Hampshire attorney general and judge and have found him wanting. In particular the Alliance for Justice and People for the American Way believe that he cannot be trusted on the issue of whether he would vote to overturn the already wobbling abortion case of Roe v. Wade. The National Organization for Women plans to rally outside the Capitol -- just in case senators friendly to its cause might miss the point.
But in truth the issue is deeper than abortion; the real crux of the matter is how he views the more general right to privacy, a right discovered by the Supreme Court in the 1965 case of Griswold v. Connecticut. This judicially created right -- "a penumbra formed by emanations" from textually explicit rights, as Justice William O. Douglas explained it -- is the foundation for Roe and the idea of a woman's right to have an abortion. But it is far more than just that.
The fact is that abortion and Roe v. Wade provide a convenient cover for what is really at stake when it comes to this alleged right to privacy. So bizarre have the currents of thinking on this doctrinal issue become that those who would tilt the court ever leftward would just as soon keep them flowing beneath the surface of the public debate. While middle America seems split rather evenly over the morally troubling question of abortion, the chances are fairly good that it would not prove to be so evenly split over the other items on the right-to-privacy agenda embraced by the left.
The more troubling notions of privacy currently churning their way from professors' theories to lawyers' briefs to judges' opinions go far beyond such problems as abortion and the use of contraceptives; indeed, they go far beyond such questions as homosexual sodomy and the right-to-die. And it is these ideas that most need to be aired if the public is to have a complete understanding of just how high the policy stakes are in the juridical battles over the extension of the right to privacy.
Articles defending the private use of hard-core pornography (and thus, by extension, its production and availability), arguing for the abolition of laws prohibiting incest, and urging freedom for drug use as a matter of "psychic freedom," have begun to appear with regularity in the major law reviews. The authors are not a collection of fringe theorists; they constitute the new "mainstream" of legal education.
Kenneth Karst of the UCLA Law School, for example, has suggested that laws against adultery and bigamy are "debatable on principle." Harvard's Laurence Tribe finds it questionable whether the public interest can justify "a per se prohibition on extramarital sexual contacts" while yet another theorist has argued that "all legal distinctions between children and adults be abolished." Further, Professor David A. J. Richards of New York University Law School has challenged the constitutionality of laws prohibiting prostitution; has maintained that "decisions to use drugs are embraced by the constitutional right to privacy"; and has argued that there is "no convincing moral justification for the refusal to constitutionalize the right to certain basic services" such as education and welfare. These theories will inevitably come to form the basis of litigation, and thus to influence public policy questions of nearly every sort.
What is so troubling about these arguments goes beyond the intrinsic merit of the proposals; the deepest concern is that they are being proffered as areas properly to be settled not by democratic deliberation in Congress and the statehouses but by federal judges sitting in splendid isolation. This is the reason, as Judge Robert Bork has argued, that the right to privacy has become the "loose canon of constitutional law." Its contours are only what the judges say they are because they are in no way spelled out in the Constitution.
Before Griswold enshrined the idea of a fundamental right to privacy, it was understood that in such areas in which the Constitution was silent, the power to deal with those issues touching privacy resided with the states, where the opinions of the people as to what was moral or immoral, acceptable or unacceptable, could come together and fashion laws reflective of the moral sense of the community. After Griswold, such laws cannot reflect the moral sense of the community unless the judge or justice in question happens to agree. That is called the luck of the draw; it most assuredly is not constitutionalism in any meaningful sense. The public morality of the community is supplanted by the private morality of the judge.
The judicial arbitrariness inherent in the idea of a fundamental right to privacy is what raises serious questions about its legitimacy. It is also the secret the liberal advocates of the right to privacy would most like to keep from the public.
The writer, a visiting scholar at Harvard Law School, was chief speech writer for Attorney General Edwin Meese from 1985 to 1987.