The other day a good friend gave me a call. He’d decided to vote for a particular candidate this November, not because he thought the candidate would be a stellar leader but because the candidate would be instrumental in the appointment of a Supreme Court justice who’d champion “original meaning” when it came to interpreting our Constitution and its Bill of Rights. That’s what we need, he says, to secure our eroding values and get our country back on track.
Knowing my friend, when he has his mind made up, there’s not much room for alternative conversation. But later that day, I decided to ask Joanie, my bride of 60 plus years, what she thought about “privacy” – did she have rights to privacy?
Her answer was a resounding “Of course I do!”
Then I asked her, “Are your privacy rights protected by our Constitution and its Bill of Rights?”
Again, a quick answer, “Of course they are. Everybody knows that!”
I don’t think there are too many people who would disagree with Joanie, particularly those of us who followed Apple Computer’s recent balking at the Federal Government’s attempt to pry into cell phones – which framed the issue as a Constitutional contest of “privacy rights versus security.” Nor would those conservatives in North Carolina and elsewhere, who champion public bathroom privacy rights in face of the recent Supreme Court decision regarding gays, disagree.
“Short answer” about Privacy Rights and Our Constitution
We may agree with Joanie’s answer that each of us have rights of privacy protected by our Constitution and its Bill of Rights. But, if we turn the pages of those historic documents we won’t find the word “privacy” anywhere. It’s not in the Constitution nor in the Bill of Rights. Yet, we have it as a Constitutional right.
The Supreme Court that confirmed the right to privacy for us is known as the Warren Court. The Chief Justice was Earl Warren, former Republican Governor of California, appointed by Republican President Eisenhower. The landmark decision is Griswold v. Connecticut, decided in 1965, when I was in law school.
The Supreme Court “located” our right to privacy in the “penumbra” surrounding the Bill of Rights.
Was the Court right?
What about “original meaning?”
We begin our inquiry with some history.
James Madison and the Bill of Rights.
In his 1990 law article, The Madisonian Theory of Rights, Professor Jack Rakove wrote that James Madison, the principal author of our Constitution and Bill of Rights, “was highly skeptical of the value of bills of rights.”
Madison, a deep thinker and a prolific writer, whose notes are our prime source of information about the proceedings of the 1787 Constitutional Convention, laid out his early concerns in his Vices of the Political System of the United States, including:
“A still more fatal if not more frequent cause lies among the people themselves. All civilized societies are divided into different interests and factions, as they happen to be creditors or debtors – Rich or poor – husbandmen, merchants or manufacturers – members of different religious sects – followers of different political leaders – inhabitants of different districts – owners of different kinds of property &c &c. In republican Government the majority however composed, ultimately give the law. Whenever therefore an apparent interest or common passion unites a majority what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals?”
Madison saw the greater danger at the state and local government level, an issue a federal bill of rights would not address. Madison’s proposed solution was a strong federal government with checks and balances that would keep political leaders and their factions in line.
Rakove summarized Madison’s thinking (We add observations in parenthesis):
• Voting majorities control the legal power of the states. (Creating what has become to be known as the risk of the tyranny of the majority. In Florida’s 2016 primary election, only 24% of eligible voters participated. Thus, 12.01% of the people constituted the controlling majority. Low voter turnout has become the national norm, skewing power in favor of voting factions representing political extremes who, by default, have become the voting majorities. Government has, as Madison foresaw and wrote, “become an instrument of the major number of constituents” who vote.The tyranny of the majority has become the tyranny of extremes.)
• The danger to the rights of individuals and to minorities is greater within state and local governments than with the federal government. (The anti-federalists pushed for the bill of rights as state protection from federal interference, not individual protection. It was not until the passage of the 14th Amendment after the civil war, and later Supreme Court interpretations of that amendment, that, over time, most of the provisions of the Bill of Rights were extended to protect individuals from state and local government action. Prime examples include the Court’s decision regarding school racial discrimination. In our time, state gerrymandering of voting districts remains a prime tool in state governments to manipulate the influence of the party in power, further discouraging broad-based voting.)
• Any list of rights having Constitutional protection runs the dangers of being manipulated by crafty legislators and unnamed rights of importance run the risk of denial or minimization because they are not on the list.
The Anti-federalists rejected Madison’s ideas of the federal government having veto power over the states. (As noted above, the 14th Amendment, adopted 80 years later, which allowed the Court to apply the Bill of Rights to state action, went a long way to meet Madison’s concerns.)
The defeat, and Madison’s concern about legislative misrule and the power of factions, led him to the necessity of the Bill of Rights, which he wrote. But his rationale was not to protect the states; rather to protect people by, as he wrote to Jefferson, having a Bill of Rights that would serve as “a signal for rousing & uniting the superior force of the community.”
On June 26, 1787, Madison spoke to the Constitutional Convention assembled in Philidephia about their work in process. From his notes:
“In framing a system which we wish to last for ages, we shd. not lose sight of the changes which the ages will produce. It is more than probable we were now digesting a plan which in its operations will decide forever the fate of Republican Govt.”
Did Madison believe that the Constitution’s carefully chosen words, once written, would always have but one meaning, or did he mean that the impact and meaning of the well-crafted words would evolve with the benefit of experience – the changes “the ages will produce?” Hints as to his thoughts may be gleaned from his Federalist Paper #37:
“The experiences of the ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. … All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faults, the medium through which the conceptions of man are conveyed to each other adds a fresh embarrassment.”
In 1881, Civil War veteran Oliver Wendell Holmes, who became one of our greatest Supreme Court Justices, published his treatise, The Common Law. His thesis completes Madison’s thoughts:
“The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”
In 1991, I wrote Crash Landing, Surviving a Business Crisis, based upon my personal experiences, concluding that if the stories we use to guide ourselves are to survive over time, our stories must be continuously redefined:
“like the Constitution of the United States, which serves today’s needs not because it is rigidly bound to its ‘original meanings,’ as some legal scholars suggest, but because it is a ‘living document,’ continuously renewed by the insights of each succeeding generation. Historical roots provide an anchor, but Constitutional interpretation grows our of the experiences of each new generation, a step at a time.”
Do I misinterpret Madison’s words?
Is Holmes wrong?
Were my writings in Crash Landing wrong?
The late Supreme Court Justice, Antonin Scalia – considered by many to be the unshakable champion of textualism and original meaning, basing our Constitutional rights on the words alone – would say, “yes.”
Scalia would remind us, that in 1803 the Supreme Court ruled emphatically that the role of judges is to “say what the law is” and that’s where judicial responsibility begins, resides, and ends – unbiased by the historical context in which the words were written or Holmes insight that our values are shaped by “experience” or Madison’s insight into our need to cope with unforeseen “changes which the ages will produce.”
Scalia explains in his 1989 Rule of Law as Law of Rules: “If a barn was not considered the curtilage of a house in 1791 or 1868, and the Fourth Amendment did not cover it then, unlawful entry into a barn today may be a trespass, but not an unconstitutional search and seizure.”
But Professor David A. Strauss, counters in his 2008 article critical of Scalia’s textualism: “Even if one can determine what the original understanding was, there is the problem of applying it to radically new conditions: Is a barn in the rural nation of 1791 to be treated as equivalent to, say, a garden shed in 21st-century exurbia?”
Scalia sums up his position in his 2012 Reading Law: The Interpretation of Legal Texts, that judges should “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.”
But is that what Scalia as an originalist – a “textualist”- actually does in practice?
Textualists like Scalia – like the rest of us – have a difficult time overriding their propensity to select facts that support their underlying beliefs and to ignore and disregard contrary facts. Richard Posner, a Reagan appointee to the Federal Court of Appeals, and University of Chicago law professor, in his 2012 article, highly critical of Scalia’s textualism, points out that: “Omitting contrary evidence turns out to be Scalia and Garner’s [Scalia’s co-author] favorite rhetorical device.”
Among Scalia’s many cases Posner discusses is his case regarding guns, District of Columbia v. Heller. The result of Scalia’s opinion has been to change the understanding of the Second Amendment as prohibiting the Federal Government from disarming state militias (as interpreted when I was in law school) to one granting individual’s expanded gun rights. In addition to Posner’s article, Civics 101: The Second Amendment, provides thoughtful insight about the decision’s omissions, including the debate that is in Madison’s notes. (We add: Militias were important to those states that used local militias to capture runaway slaves and those states were concerned about their militias being disarmed by the federal government. The American Slave Coast: A History of the Slave Breeding Industry provides an in-depth discussion of the underlying issues.)
It should come as no surprise that Scalia said on MSNBC that neither the Constitution nor its Bill of Rights provides a right to privacy – and on that point, he says, the Warren Court was wrong.
In writing the Griswold right to privacy opinion, Justice William Douglas provided a bevy of rights that we have become accustomed to that are not described in the Constitution or the Bill of Rights. Over years the unlisted rights have grown into Constitutional “rights,” including our expansive understanding of “free speech,” which in construed to include many nonverbal forms of expression. Although few of us would doubt the wisdom of Justice Oliver Wendell Holmes when he said that the right to free speech doesn’t give us the right to cry “fire” in a crowded theater when there is no fire, we would all be shocked if the First Amendment free speech right didn’t give us the right to take photos with our iPhones, or produce and enjoy movies or radio programs, or assemble as clubs or crowds, or march or burn flags in protest. These sorts of rights, evolved through living and experience, Douglas reasoned, are found in the penumbra surrounding the written words of the Constitution and its Bill of Rights.
The Griswold case overturned a law that prohibited a married couple from using contraceptives. Douglas concludes:
“The present case, then, concerns a relationship lying within the zone of privacy, created by several fundamental constitutional guarantees. … We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”
He asked, “Would we all want the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”
Thus we rate the proposition that we need Supreme Court Justices that champion “original meaning” as false. There aren’t any, even among those who claim they are, like the late Antonin Scalia. In a world that has evolved from simplicity to complexity, the written words of the past have to be shaped by the context of the present and the future.
In discussing the overpowering influence of our belief systems on us in Wonderlust, I wrote:
The Supreme Court’s 5-4 rulings about important issues aren’t the results of the conservative judges having one set of facts and the liberal judges another set of facts. Nor are they the results of one set of judges having a clearer vision of the facts or issues or the “original meaning” of our Constitution. Professionals who have sworn to represent everyone, as judges and politicians take an oath to do, like the rest of us, are driven by their beliefs and maneuvered by their emotions and subconscious minds to pontificate sober rationalizations called “reasoned opinions.”
[C]onsider the possibility that our Creator didn’t shape the DNA of some us to be conservative in our political or philosophic thinking because being conservative is always rational and right and all people should be conservative. Nor did our Creator shape the DNA of others among us to be liberal in our political or philosophic thinking because being liberal is always rational and right and all people should be liberal. Our globe is populated by people with differing points of views and insights for a reason. We gain from lessons provided to us through the wisdom of each other. If we have the sensitivity to listen to, and to consider, those whose ideas don’t fit comfortably within our own mind frames we will make better decisions. That’s why today’s political polarization is so sad and so nonproductive.
That’s the Belief-Check we should pay attention to!
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