Inactive Theory & Practice
Robert George vs. the Right to Privacy
Princeton professor Robert George produces the following lame argument against the right to privacy on the Op-Ed page of today's New York Times:
The Supreme Court's "privacy jurisprudence" began in 1965, in Griswold v. Connecticut. By a vote of 7 to 2, the justices invalidated a state law forbidding the use of contraceptives by married couples....Lacking a textual or historical warrant for invalidating the law, Justice William O. Douglas, writing for the majority, claimed to find a "right of marital privacy" in "penumbras, formed by emanations" from a range of constitutional guarantees, none of which had anything to do with sexual conduct.Embarrassment? What's embarrassing is George's argument.
Douglas's quasi-metaphysical language elicited derision, and to this day remains an embarrassment to liberal constitutional jurisprudence. The justices would have done better to take the dissenting advice of Hugo Black, the court's leading civil libertarian. Black said that although he didn't like the law, the court was usurping the constitutional authority of legislatures by simply inventing a right that the nation's founders had not seen fit to enshrine.
The argument, such as it is, boils down to two assumptions:
1. If a legal claim involves metaphysics, it ought to elicit derision.
2. If the conclusion of a legal argument alludes to something not explicitly mentioned in the Constitution, it is not a legitimate subject of judicial review.
Come on.
Contrary to (1), claims about freedom and responsibility involve metaphysics; they also happen to be presuppositions of the legal system as such. To express derision for them would be to elicit derision for the very concept of the rule of law.
To see what's wrong with (2), consider the age-old "Socrates syllogism" from introductory logic:
i. All men are mortal.
ii. Socrates is a man.
iii. Socrates is mortal.
Remarkably, (iii) makes reference to mortality, while (ii) doesn't. And yet (iii) follows from (i) with the assistance of (ii). In other words, for centuries, logicians have claimed to infer a conclusion about mortality while relying essentially on a premise that has nothing to do with mortality! Is that what Aristotle, the founding founder of logic, really had in mind?
Yeah, he kinda did. To make a long story short, the lesson is that the constitution can furnish the major premises of arguments about constitutionality (i.e., [i]), with minor premises gotten from elsewhere (i.e., [ii]). In other words, the constitution doesn't have to mention sexual conduct in order to protect it. It need only protect liberty (which it does), from which judges are free to reach the conclusion that laws that infringe liberty with respect to sexual privacy are unconstitutional. In short, the Supreme Court's "privacy jurisprudence," as exemplified by Griswold, is perfectly sound. "Liberals" have nothing to be embarrassed about. Neither do promiscuous users of contraceptives.
The real question to ask is this: What is it that George has against Griswold--or contraceptives? What legitimate reason--metaphysical or otherwise--could a legislature have had for imposing a ban on the use of contraceptives in the first place? That is precisely the question that doesn't get asked in George's article, and precisely the question that his legal reasoning is perfectly tailored to obscure. It is, of course, the question that most pressingly deserves to be asked about a coercive intrusion into people's private lives. Talk about embarrassing....
- privacy by Aeon J. Skoble (September 19, 2005 at 8:49 AM)
- Re: privacy by Oscar Chamberlain (September 21, 2005 at 9:55 AM)
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