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Con Law in a Nutshell: Creating a Parallel Universe

by James G. Bruen, Jr.

Suppose you are sitting in your living room with a young man who is dating your daughter. The conversation turns to his intentions towards your daughter. You are seeking assurance that he respects her. Instead he assures you that at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. You would probably be justified in concluding he recognizes no moral boundaries in his relationship with your daughter. You would probably toss him out on his ear.

If the young man were instead visiting your son, you probably would not make a similar inquiry about his intentions toward your son. The person, though, who thinks he can define his own concept of existence, meaning, the universe, and the mystery of life, need not recognize any moral boundaries outside of himself. For example, to him, abortion, rape, and sodomy are not inherently licit or illicit: their propriety varies according to the individual's personal definition. So, if your visitor starts babbling about defining his own concept of existence, you might be justified in concluding he hoped to sodomize your son. This visitor, too, would be tossed out on his ear.

These scenarios might seem farfetched. And perhaps they are, but not by much. To uphold both a woman's right to abort (Planned Parenthood v. Casey) and a man's right to sodomize his fellow man (Lawrence v. Texas), the United States Supreme Court has reasoned that those rights spring from that "heart of liberty" that includes "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Even some of the Justices on that Court mock that reasoning, most notably Justice Scalia who says the "famed sweet-mystery-of-life passage" may be "the passage that ate the rule of law." But if a majority of the Justices on the highest court in the land think liberty and the Constitution allow each individual to define reality and thus somehow protect the right to commit sodomy, why should your visitor think differently? Why should he recoil from buggery with your boy?

Think of the implication of the Supreme Court's statements: there is no reality outside the individual; he defines reality, which, of course, can vary from person to person. Nothing is objective; everything is subjective. Is it permissible to kill another person on a whim? Why not, if my concept is he does not exist apart from me? Does that sound ridiculous? It should. Consider abortion, though: American law denies the right to life of the child unless his mother validates his existence by carrying him to term; the child can be killed on the mother's whim.

In its decisions, the Supreme Court itself seems to be attempting to define its own concept of existence, of meaning, of the universe, and of the mystery of human life. And the only constraint on its attempt is the ability of each Justice to persuade other Justices to join in an opinion. The Constitution and precedent are relatively unimportant except insofar as they buttress the attempt or can be used to influence another Justice or the public. Constitutional law, or, in its abbreviated form, "con law," then, can be summarized easily: if and when five out of nine Justices agree, then that is what the law is, at least at that moment.

Thus the Supreme Court created a right to privacy that included the right to use contraceptives (Griswold v. Connecticut and Eisenstadt v. Baird) and that buttressed a right to abort the preborn child (Roe v. Wade). This was, to borrow Justice White's phrase in his dissent from the abortion decision, an exercise of "raw judicial power." The Justices had the power to do as they wanted, so they did. And then, when the Court revisited the abortion question years later (Planned Parenthood v. Casey), it acknowledged sanctimoniously that "a decision without principled justification would be no judicial act at all," but it expressed more interest in its own legitimacy than in whether its earlier decision was principled or, indeed, correct, concluding: "a decision to overrule Roe's essential holding under the circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision, ... . We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate."

In other words, what we have written, we have written.

The Court took a different course when approving homosexual sodomy. In 1986, the Court upheld state laws that made homosexual sodomy illegal (Bowers v. Hardwick). When it revisited the issue last summer in Lawrence v. Texas, it said Bowers "causes uncertainty" and "there has been no individual or societal reliance" on it to caution against overturning it. Then, invoking that same right of privacy, the Supreme Court blew away state sodomy laws. "The rationale of Bowers does not withstand careful analysis," it said. "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." So much for precedent, legitimacy, and the Nation's commitment to the law.

The abortion and sodomy cases are consistent, not in their approaches to precedent and legitimacy, but as examples of the Court's ability to act unfettered by any external constraint. Is it an overreaction to conclude that the only constraint is internal, the ability of one Justice to persuade other Justices to join in an opinion?

One might think the Constitution itself is a restraint on the Justices. The Court, though, disabused us of that notion last summer when it explicitly approved a "deviation from the norm of equal treatment" to allow discrimination based on race in college admissions for twenty-five years (Grutter v. Bollinger). The Constitution requires equal protection? So what, the Court knows better.

In Casey, the Court said its "legitimacy [is] a product of substance and perception" that "depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation." The Court thus suggested that at least theoretically it could make a decision that was so outrageous that the "Nation" would reject it, which it concedes, could lead to "violence." And maybe this acts as a restraint on the Justices: they don't want to get out ahead of the American people too far, otherwise they might lose their power to do as they want. Thus, it is hard to envision the Justices discovering that liberty and the right to privacy protect a right to rape. But it is not impossible: would a right to rape be any more abhorrent than the right to kill a child? It is less difficult to envision the Supreme Court invalidating state laws against statutory rape, prostitution, incest, or bestiality.

Legitimacy, thus, is a somewhat illusory restraint. After all, the "principled character" of the decisions upholding the constitutional rights to abortion and sodomy is hardly self-evident or even plausible. Instead, the Court's decisions reek with condescension: we and our law clerks, the Court seems to say, are sufficiently bright that we can churn out opinions that can justify almost anything without causing rebellion or injuring our ability to do as we please; we are the elite, the knowing, the wise, the powerful, but, recognizing that the "Nation" includes others who are not as enlightened, intelligent, or powerful, we must guide and control them while simultaneously protecting ourselves against violence and a loss of power by writing opinions that engender a "perception" that our actions are "sufficiently principled."

There is no Constitutional right to abort a child or to sodomize your neighbor. The Supreme Court has created a perception otherwise, but it was unprincipled in doing so, and we would be justified in tossing it out on its ear.CW

James G. Bruen, Jr. is an attorney.

This article was published in the January, 2004 issue of Culture Wars.

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