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The Textual Basis For The Right To Privacy


I’m not going to get into the question of Juno and abortion because I reject the idea that the picture is a “brief” for or against anything; this might be an appropriate way to discuss an Aaron Sorkin project, but Diablo Cody seems like an artist as opposed to someone who was things to say about issues of the day and divides them among, for lack of a better word, characters. I do, however, want to address publius’s argument in comments that he disagrees with Lawrence because “the right to privacy underlying this cluster of cases has no textual basis in the Constitution.” This is, I think, puzzling:

  • As Mark Tushnet pointed out in Balkin’s book about Roe, Douglas’s much-derided opinion in Griswold is actually quite intelligent. People who assert that there’s no textual basis for limiting a state’s authority in this line of cases need to explain what would, say, remain of the Fourth Amendment if the state could ban the use of contraception or noncommerical, consensual, private sexual behavior. What would the search warrants even look like? (“We believe that the individual in question is predisposed to desire sex.”) This kind of state power is inconsistent with several parts of the Bill of Rights, which clearly imply that the state does not have unlimited dominion to invade private residences. (Or to put this utterly banal interpretive point in slightly more pretentious terms, “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”)
  • Here, I would assume that Publius would object that nobody thinks that these laws would be used to routinely inspect private residences to ensure that people aren’t using contraception or giving head. And this is, of course, accurate; such laws would, in fact, be sporadically and arbitrarily applied against unpopular individuals or powerless classes of individuals. Or, in other words, they inherently fail to comport with the Constitution’s perfectly explicit textual command that no state can “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” There’s nothing non-textual about the argument that general laws which are unenforceable against most of the people they cover on their face cannot be enforced against anyone; if “equal protection” and “due process” mean anything, they mean that.

Admittedly, Roe does not automatically follow from Griswold and its progeny; it’s like it in some respects (arbitrarily enforced laws, interference with intimate family and sexual relations) and unlike it in others (usually a commercial transaction, not confined to private domiciles), and also involves some issues that aren’t addressed by the case (the importance of reproductive freedom to gender equity, the state’s interest in fetal life.) But it’s not true that Roe lacks any textual basis except in the less-than-sophomoric sense that the generalities of the 14th Amendment don’t include specific policy prescriptions, and in the case of the other (somewhat misleadingly named) “privacy” cases the textual basis is quite clear.

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