And Now For Something Completely Different

Noted humorist and constitutional scholar Tom Lehman penned an op-ed in the YDN bashing my proposal for a right-to-privacy amendment to the Constitution. I think it would be helpful, in order to frame the debate, to refer to something I wrote in my column on Kelo v. New London, which was a response to Lehman's earlier piece on the same subject. To wit:

What is ultimately at stake in Lehman's apologetics for the Kelo ruling is the notion that the protection of individual rights against legislative- and executive-branch abuses is the responsibility of the judiciary in the first place.

Just to excise the context-dependent rhetoric, this is really what the dispute between Lehman and myself is about: whether or not the responsibilities of the judiciary include protecting individual rights against legislative and executive branch infringements. Lehman translates the problem into one of process- versus outcome-oriented jurisprudence, and if you're not interested in reading all the way through, I'll just say for now that the dichotomy is a false (and bizarre) one.

But before I can address what I've identified, and what I think Lehman would agree given his theoretical translation, is the central dispute, there are a number of points I have to make about his piece and its interpretation of mine.

What I'm getting at is this: There's a principle of charity involved in legal, philosophical and journalistic commentary, which is not a principle of courtesy---commentators can be as unconciliatory as they like---but rather a principle of, among other things, not deliberately distorting the arguments of one's opponents in order to score points, nor attributing views to them whose converses they explicitly endorse.

Item: Lehman begins his piece this way:

Amend the Constitution to include a right to privacy, Daniel Koffler argues ("Right to privacy should be enumerated," 11/9), and abortion rights for American women will be unequivocally guaranteed. His argument is flawed: A privacy amendment would not guarantee a right to abortion.

Did I argue that a RTP amendment would "unequivocally guarantee" a right to abortion? I did not. In fact, I wrote, "a court might find [banning late-term abortions] to be commensurate with the [privacy] holding in Roe," since there would be nothing unreasonable in finding that a fetus of a certain age was indeed a rights-bearing entity.

The argument of my column, which Lehman distorts beyond recognition, is not that the Constitution should be amended to include a right to privacy in order to protect abortion rights---and yes, that would be a crude outcomes-based proposal, but it is not one I made---but that a RTP amendment is a good idea in general, and it just so happens that the right to privacy needs defending when one of the major lines of attack against Roe is one that goes directly to the RTP finding in Griswold. Lehman's reading is either dishonest or incompetent. I report, you decide.

Moving along. Item: Lehman continues:

Koffler argues that if one grants that a fetus is not a person and the Constitution guarantees a right to privacy "It follows...that state regulation of a part of a person's body that itself bears no rights is an unconstitutional violation of privacy." Unfortunately for Koffler, this reasoning is unsound. His argument is missing a needed premise -- something like "the state may only force a person to refrain from an activity when the activity implicates the life or constitutional rights of another person."

Now, for a philosopher, the charge that one's reasoning is unsound is a very serious one. (As it turns out, the word Lehman is looking for is not "unsound," but "invalid." His claim is that my conclusion doesn't follow from my premises, not that the premises are false. An invalid argument is also unsound, but that's a supererogatory point.) Ditto for the claim that I'm missing a premise.

Unfortunately for Lehman, he managed to misread, then misleadingly attenuate the passage that contained my alleged unsound reasoning. The ellipsis hides the crucial text. What I actually wrote was:

It follows from the conjunction of these points that state regulation of a part of a person's body that itself bears no rights is an unconstitutional violation of privacy. In other words, the Constitution guarantees a woman's right to terminate her pregnancy. [emphasis added]

Which points was I referring to? These:

first, the domain of individual autonomy established in Griswold includes one's own body; second, a fetus is not a legal person.

In other words, Lehman simply substituted for my actual first premise one of his own devising. I did not claim that the existence simpliciter of a constitutional RTP + acknowledgement of the non-personhood of a fetus yields a constitutional right to abortion. I claimed, paraphrasing Roe, that the finding that a woman's personal medical decisions do indeed fall within the sphere of conduct, protected by the right-to-privacy established in Griswold, into which the government may not intervene.

Now, Lehman is entitled to ask why is it that a woman's personal medical decisions fall within that sphere. But in so asking, he is questioning the soundness not of the argument I made, but of an argument whose conclusion is point 2 in the following argument: given 1) a constitutional RTP, 2) the finding that decisions concerning personal reproductive health are protected by RTP, and 3) a fetus is not a legal person, it does indeed follow that statutory restrictions on abortions are violations of constitutional rights.

Since the first and third premises are basically uncontroversial---we're just stipulating that there is a constitutional RTP, which is what an amendment would do, and Lehman concedes that precissifications of personhood under which (early-term)fetuses are persons is implausible---it's the truth of the the second premise that's at issue.

Where Lehman suggests I'm missing a premise, what he's getting at is that I haven't argued for the second premise. And he's correct about that; I did not present an argument for the second premise, since it is simply part of the ruling in Roe, and I wanted to make the point that the conclusion of Roe is correct as long as its premises are true. In other words, I was establishing precisely those premises as the grounds for argument over privacy rights, and stating that while I believe those premises are true, I admit that reasonable people may disagree---which is why I argue for a RTP amendment. What Lehman is not entitled to say, on pain of demonstrating an ignorance of what it is for an argument to be valid or sound, is that I'm missing a premise. The argument is valid because the conclusions follow from the premises. The argument is sound just in case the premises are true.

So, are they true? Lehman claims, in effect, that (2) might be true given some other premise. He suggests, let's call it (2*):

the state may only force a person to refrain from an activity when the activity implicates the life or constitutional rights of another person.

And having imagined this to be my premise, he goes on to attack it. But what is required for the finding that the Griswold ruling on privacy extends to decisions like that of a woman to terminate her pregnancy is nothing like what Lehman suggests. All that is required is a little bit of deduction.

In Griswold, the Supreme Court found that an extant constitutional RTP extended to married couples (in which, obviously, both members are rights-bearing persons) making decisions about their private reproductive behavior. As Lehman ought to know, and perhaps does, whenever a true claim entails or contains a logically weaker claim, the logically weaker claim is also true. In Roe, the question was whether RTP extends to a woman seeking to obtain an abortion. Since, in such instances, there is only one decision-making, rights-bearing person, and since RTP has already been found to extend to couples, obviously RTP extends to the individual woman and her private reproductive behavior. The question, as always, goes back to Griswold.

What Lehman's (2*) is, in fact, is a principle the Griswold court could have utilized to make their finding about the nature of RTP, but it is not the principle they actually used.

Lehman continues, as I said, by attacking a premise he invented and attributed to me. Item:

Need the state justify its every infringement on liberty by pointing to a potential murder the infringement would prevent? The answer is obviously no. For example, the Constitution guarantees me the right to political protest, and cats certainly aren't people (nor do they possess constitutional rights), but the state can unquestionably prohibit me from setting my cat aflame in protest of a tariff on cat food. If this doesn't do it for you, substitute "post office" for cat.

I confess to having scant idea of what Lehman is talking about, aside from ascribing to me the view that a constitutional RTP immunizes someone from prosecution for burning down post offices in protest. If a court were convinced that all blastocysts/embryos/fetuses/etc. in any pre-birth stage of development were legal persons, then a statute banning all abortions would pass constitutional muster because all it would consist of is a reiteration of statutes outlawing murder. Privacy rights do not cover murder. Nor do they cover arson, nor abusing animals. What would be essential to any language of a RTP amendment is some iteration of the harm principle. Again, I don't see why this is confusing.

Skipping the paragraph in which Lehman most concisely states his mistaken interpretation of my general argument, which I described above and which anyone is free to assess by following the links to the two pieces, Lehman finally comes to the meaty part of his own argument. And it's a real beauty:

Judges could protect privacy from frivolous regulation, but states never infringe upon privacy without purpose. Any legislative decision to intrude on privacy inevitably involves a choice of evils. Such an intrusion entails the infliction of suffering for reasons whose sufficiency may be open to question -- not the infliction of suffering that can be fairly labeled needless. [emphasis added]

The italicized text bears repeating: "states never infringe upon privacy without purpose." Depending on the definition of "purpose" this is either tautological or demonstrably false (and easily so). If infringing with "purpose" simply means infringing on any grounds whatsoever, then every state infringement on privacy is purposeful. Of course, any time a legislature passes a law, it will adduce some reason for doing so. Pace Lehman, that hardly entails that "[a]ny legislative decision to intrude on privacy inevitably involves a choice of evils." To borrow the language Lehman uses later, it is only true that every legislative infringement on privacy is non-frivolous if it's part of the definition of legislative action to be non-frivolous. During a lecture on Descartes in early 2003, Michael Della Rocca notoriously suggested that people who make circular arguments be taken outside and shot. I wouldn't go quite that far, but I would suggest that they tone down the smugness just a bit.

Or perhaps Lehman thinks purposefulness and/or non-frivolity have a more robust meaning than being simple conceptual appendages of legislative action. Fine. The fact that a legislature decides to pass a law that infringes on privacy is no indication of any kind that the infringement is justified. (Want an example of unjustified infringement? How about this one, from today, in which a woman was jailed for 90 days and put on a year's work release, without having violated any laws.) Legislatures enact unjustified infringements on any number of rights all the time, both contemporaneously and historically. And that phrase, "unjustified infringements," is key. Whether deciding if the Online Decency Act violates freedom of speech, or the Intelligence Identities Protection Act violates freedom of the press, or school segregation violates the equal protection requirement, or various gun control laws violate gun ownership rights, the judiciary makes determinations of whether or not particular infringements on rights are justified; and it is the responsibility of the judiciary, as the branch of government that interprets law, to determine what the limits on rights are. Moreover, it does so all the time, with respect to any number of constitutional rights. Why such interpretation of a constitutional RTP would somehow be disconsonant with judicial interpretation of the other rights is beyond my capacity to say; perhaps Lehman can inform us.

Indeed, it is incumbent upon him to state what it is that distinguishes a constitutional RTP from any other constitutional right. Otherwise, constructions like this

Assuming that unelected, unaccountable judges are better suited than legislatures to discern the correct balance between social welfare and personal privacy flies in the face of our democratic values

can be restated for every single constitutional right. Should "unelected, unaccountable" judges, or accountable legislatures discern the correct balance between social welfare and freedom of speech? between social welfare and freedom of association? between social welfare and freedom of the press? between...you get the idea.

Lehman does, to his credit, acknowledge the difficulties that could arise in curtailing the scope of judicial review:

Where in my seemingly blind faith in the democratic process is there room for judicial review at all?

There is no room, it turns out, for overturning legislation on the grounds that it violates constitutional rights. The only room remaining for judicial review is:

to step in when our representatives are attempting to subvert the ballot box as a check on undesirable legislation...for safeguarding the political process.

Let's begin a taxonomy of the major Supreme Court cases that were wrongly decided if Lehman's view of the scope of judicial review is correct.

• Marbury v. Madison inasmuch as it held that "Congress can not pass laws that are contrary to the Constitution" and reserved for the court the power to determine that laws were indeed contrary to the Constitution.
• Lochner v. New York, which ruled a law limiting working hours unconstitutional because of a "right to contract" entailed by the 14th Amendment
• Griswold v. Connecticut; nothing about the Connecticut law suggested a violation of process---the law was passed by properly democratically elected legislators in a manner that conformed to the established rules by which laws are passed; nevertheless the Supreme Court ruled the law a violation of constitutional rights
• Roe v. Wade, for precisely the same reason. Note that Lehman claims in his piece that the Supreme Court was correct to rule that "no possible good that could come from anti-abortion legislation could justify infringing upon the life plans of the mother," and that such a finding emerged from "balancing two legitimate costs." If Lehman's later contention about the scope of judicial review is correct, then by the lights of his own argument, his support for Roe is absurd.
• Brown v. Board of Education; the Topeka Board of Ed. was legitimately empaneled, and broke no processual rules in enforcing segregation. Nevertheless, the Supreme Court ruled the segregation of schools to be an equal protection violation explicitly because "separate but equal" was a fantasy. Again, if Lehman is correct, the Supreme Court had no business whatsoever coming to that determination; it is the legislature, and the legislature alone, that should be deciding what constitutes equal protection.
• Likewise, every single currently-governing civil rights case in the nation's history, whereas Plessy v. Ferguson and (Dred) Scott v. Sanford were correctly decided if Lehman is correct about the role of the judiciary.

And to return to the theoretical, if it is true that judicial review applies only to process, the judiciary could not legitimately overturn any law, regardless of its suspect constitutionality, as long as it was enacted according to the correct process. Since Lehman concludes his piece by comparing my proposal for a constitutional RTP to slavery (or perhaps to overturning slavery, in which case he doesn't believe the constitution should have been amended to ban slavery), I don't think it would be impolitic to point out that under his restrictions on judicial review, the Supreme Court could not overturn a redux of the Nuremburg laws, provided that Congress did not violate processual rules in passing them.

This outcome cries out for a Mooreian response. (That's G.E., not Michael Moore.) As Moore would put it, if the consequence of an argument is, e.g., that Brown v. Board of Ed. was wrongly decided, there is something damnedly wrong with the argument. And it's this: the dichotomy Lehman proposes between courts protecting "processes" versus "outcomes" is bollocks. When a court rules that legislation violates a constitutional provision, it does so (mostly) without regard to the consequences of overturning that law. Any number of proposed laws that would result in beneficial outcomes for society would be subject to reversal by the courts just in case they violated the Constitution. (For example, many people think that our country would be a lot better off if there were no private gun ownership. Some of those people have undoubtedly sat on the Supreme Court. But the Supreme Court could only countenance a law banning all private gun ownership if it were to ignore the explicit text of the 2nd Amendment).

The operative principle is not that the judiciary should rule in favor of outcomes it feels would have the highest utility, nor indeed that the court should make "substantive moral decisions," but that the judiciary has a responsibility to determine whether and how legislative action violates the Constitution. Lehman's argument---that the only body legitimately able to determine whether a legislature's decisions pass constitutional muster is the legislature itself---is an argument against either checked or balanced government.