Keeping Tabs Pt. I

Last Friday, the YDN printed this letter responding to my column on privacy rights:

To the Editor:

Daniel Koffler's column calling for a constitutional amendment creating a "right to privacy" to support abortion (11/9) displays remarkable disengagement with women and the courts.

Because it lacks meaningful limits, the right to privacy lacks universal appeal. Not only do our courts, legislatures and people remain deeply divided on the issue of privacy, but many feminists believe the "right to privacy is a right of men 'to be let alone' to oppress women one at a time," in the words of Catherine Mac-Kinnon.

Our founding fathers wisely omitted the "right to privacy" from the Constitution. In a feat of judicial creativity, the Court discerned this right and with it justified the right to abortion. Yet the Court since Roe has de-emphasized "privacy" and refocused on "liberty" as its justification of abortion rights (see Planned Parenthood v. Casey [1992] and Stenberg v. Carhart [2000]).

Koffler somehow hopes that a super-majority of Congress will pass an amendment in favor of a right the Supreme Court has already backed away from.

Marah Stith LAW '06

Wow, a real live law student from fucking Yale. But is she right? Let's take this line by line.

Daniel Koffler's column calling for a constitutional amendment creating a "right to privacy" to support abortion (11/9) displays remarkable disengagement with women and the courts.

First of all, I did not argue for a right-to-privacy amendment to support abortion; I argued that, while a RTP amendment would be a good idea in general, it would be a particularly good idea against the backdrop of a legal culture shifting more and more towards social conservatism (given Republican electoral victories), in which RTP appears to be the most vulnerable plank of the Roe decision. In effect, I'm trying to prevent RTP from being a casualty of the culture war (putting my own position on abortion on the table, for now). As for my "remarkable disengagement with women and the courts," well, read on.

Because it lacks meaningful limits, the right to privacy lacks universal appeal.

The antecedent, conclusion, and inferential logic here all strike me as flat-out wrong. In order: there are no a priori "meaningful limits" conceptually contained in, say, freedom of association and freedom of the press that RTP lacks. The judiciary has spent centuries determining and clarifying those limits, and that is part of what the judiciary exists to do. A RTP amendment can be drafted in language no more complicated than the language delineating any of the basic freedoms, and the principle limiting it would be precisely the same: the state may not impinge on the privacy of citizens (and I suspect there would be something like a harm principle definition for this) except in marginal and/or emergency circumstances. If the courts can manage discerning limits on freedom of association---as they have had to do in the past, e.g., with respect to the Klan, and will have to do with respect to terrorist organizations---they can manage to discern the limits on privacy rights.

Secondly, Stith claims that RTP "lacks universal appeal." Now, since the Constitution explicitly states the process by which amendments are ratified, and that process does not require universal appeal, I'm not entirely sure what to make of this remark. Look hard enough (or maybe not so hard) and you will find ostensibly intelligent people who are uncomfortable with some of the enumerated rights. Moreover, can we imagine circumstances, or a possible world, in which majority opinion at some point in time is opposed to, e.g. freedom of speech? I believe we can. Would majoritarian opposition to freedom of speech constitute a reason to remove it from a nation's rule of recognition, or bolster the case for defending it against the vicissitudes of popular opinion? My answer is the latter. What is Stith's? As for the fact of the matter in the actual world, neither Stith nor I knows how a RTP privacy amendment would poll, but I think we can be fairly certain that it would be more popular than a one-off right to abortion. RTP cuts across party affiliations and ideologies; people just generally don't like their business being fucked with, and the trouble with a universally appealing RTP, if there is any, is that our species' bestial irrationality allows for people to be entirely in favor of individual autonomy and robust libertarian freedom in their own case without forming a consistent opinion of the autonomy and freedom of others.

Lastly, Stith's inference, that the purported lack of universal appeal of RTP can be attributed lack of meaningful limits, seems to me to be just obviously wrong. Has she bothered to take a glance at the things the public believes, and their reasons for believing it? Why on earth would something like "lack of meaningful limits" be among the average citizen's reasons for disfavoring a proposal?

Not only do our courts, legislatures and people remain deeply divided on the issue of privacy,

There's a conflation here that I think obfuscates the nature of the controversy over privacy. For the courts, the question is whether there is a constitutional RTP. For the people, and hence for the legislatures that allegedly represent them, the question is whether there ought to be a RTP. Amending the Constutition to include a RTP would instantly dissolve division within the judicial system over the existence of RTP, and doing so would require that the legislatures and people be far less divided than Stith claims. If her assessment of popular opinion is correct, then she has no reason to fear passage of a RTP amendment. But I think she's wrong. As I said, people don't appreciate having their business fucked with.

...but many feminists believe the "right to privacy is a right of men 'to be let alone' to oppress women one at a time," in the words of Catherine Mac-Kinnon.

Ah, I'm tempted to say that this is the meat of Stith's objection to RTP. It would be easy to say that I don't care what Catherine Mac-Kinnon [sic] thinks of privacy rights, because Catherine Mac-Kinnon [sic] hates freedom. But that would be too easy, so let's take the charge (for the moment) seriously. It is, first of all, an incoherent claim if interpreted literally. RTP is a right of men and women alike, and women would enjoy its legal protections to precisely the same extent that men would. Moreover, in the context of a secondary legal system with a robust delineation of rights, including an explicit provision, per the 9th Amendment, that no rights can be construed to "deny or disparage others," claiming that RTP is nothing more than cover for a form of oppression is a way of taking issue not with RTP itself, but with the underlying semantics of rights-discourse.

In fact, I think that's precisely what MacKinnon and Stith are doing, and what they must be doing if their analysis of RTP is to be intelligible. But RTP is not the only constitutional right that places limits on the on the ability of the state to exercise power over citizens, and if RTP is a means of enabling oppression of women, so is every other libertarian right. Notice: by substituting terms like "patriarchal" and "women" for terms like "bourgeois" and "proletariat," MacKinnon's analysis is formally equivalent to the Marxist critique of liberalism. If the latter case is not persuasive, neither is the former. And if RTP is merely a tool of oppression, would MacKinnon and Stith object to its violation? Do they believe Lawrence v. Texas was correctly decided, and on what grounds?

Our founding fathers wisely omitted the "right to privacy" from the Constitution.

I quote this to note the following: if the Supreme Court's decision in Griswold was correct, then RTP was not omitted from the Constitution, it was merely left unenumerated. Otherwise, I'll refrain from any facile point-scoring over approvingly quoting Catherine MacKinnon in one sentence and praising the wisdom of the Founding Fathers in the next [talk about patriarchy--ed.].

In a feat of judicial creativity, the Court discerned this right and with it justified the right to abortion. Yet the Court since Roe has de-emphasized "privacy" and refocused on "liberty" as its justification of abortion rights (see Planned Parenthood v. Casey [1992] and Stenberg v. Carhart [2000]).

What, pray tell, does such "liberty" consist of? While the existence of a constitutional right to privacy is controversial, the existence of a singular, implication-free right to abortion is not. There is none. It can only be a form of constitutionally protected activity if the Constitution protects an individual's autonomy in general. But don't take it from me. Take it from the O'Connor, Kennedy, and Souter majority opinion in Casey, which affirmed

a woman's right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State, whose pre-viability interests are not strong enough to support an abortion prohibition or the imposition of substantial obstacles to the woman's effective right to elect the procedure

Sounds like RTP privacy to me. Or would Stith argue that it is coherent to say that the state may not unduly interfere with this particular choice, but may do so with others? Where the majority refers to liberty, it does so as a means not of distancing itself from Roe, but reaffirming it:

Roe determined that a woman's decision to terminate her pregnancy is a "liberty" protected against state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment. Neither the Bill of Rights nor the specific practices of States at the time of the Fourteenth Amendment's adoption marks the outer limits of the substantive sphere of such "liberty."

In other words, the court in Casey is saying that RTP is a liberty, which makes perfect sense, and furthermore refers to a "sphere of such 'liberty.'" Perhaps Stith could explain to me the substantive distinction between a right to privacy and a sphere of liberty. Elsewhere, the majority links its finding in Casey, the previous finding in Roe, to Griswold:

No evolution of legal principle has left Roe's central rule a doctrinal anachronism discounted by society. If Roe is placed among the cases exemplified by Griswold, supra, it is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the liberty recognized in such cases.

Are we really witnessing the court repudiating RTP? Then why would the court explicitly connect its view of abortion rights with other modes of conduct protected by an unenumerated RTP:

Similarly, if Roe is seen as stating a rule of personal autonomy and bodily integrity, akin to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection, this Court's post-Roe decisions accord with Roe's view that a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims.

Again, the onus is on Stith to distinguish "individual liberty," as exemplified in "limits on governmental power," from RTP. But before she does, perhaps she could explain what O'Connor, Kennedy, and Souter are talking about when they refer to "a constitutional right of privacy between a pregnant woman and her physician."

Koffler somehow hopes that a super-majority of Congress will pass an amendment in favor of a right the Supreme Court has already backed away from.

One can hope, can't one?