Why "I will follow the law" is not an answer

Don't be surprised if the confirmation hearings for Supreme Court nominee John Roberts include an exchange that goes something like this:

Question: "Do you believe there is a fundamental right to privacy in the Constitution?"

Answer: "It would not be appropriate for me to comment on matters that may come before me as a justice of the U.S. Supreme Court, but I will follow the law."

This is not an answer, and here's the reason it's not an answer:

In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling." The law must be shown "necessary, and not merely rationally related, to the accomplishment of a permissible state policy."

That quotation is from Griswold v. Connecticut, the 1965 Supreme Court ruling that struck down a Connecticut law banning birth control. In Griswold, the Supreme Court declared, for the first time, a constitutional right of privacy that superceded state laws which intruded too far on that fundamental right.

But look closely at what the Court actually said.

The Court said that when a personal liberty is fundamental, a state may not pass a law restricting it unless the state can show a compelling reason that the law is necessary in order to accomplish a permissible state policy.

But who decides what's fundamental and what's compelling and what's necessary and what's permissible? The elected representatives of the people of the United States?

Guess again.

The Supreme Court will decide if the liberty in question is or is not fundamental.

The Supreme Court will decide if the state's reason for its restrictive law is compelling, or merely rational.

The Supreme Court will decide if the law is absolutely necessary to accomplish the state's policy.

The Supreme Court will decide if the state's policy is permissible.

That's the law. So when a Supreme Court nominee says "I will follow the law," it tells us nothing.

This all stems from the Incorporation Doctrine, the Supreme Court's eighty-year project of picking and choosing which rights are so fundamental to the idea of due process of law that they must apply to the states through the Fourteenth Amendment, which bars any state from denying due process of law to any person. Before the Supreme Court began "incorporating" the Bill of Rights into the Fourteenth Amendment in 1925, it was settled law that the Bill of Rights "did not have any effect upon the powers of the respective states." [Maxwell v. Dow, 1900]

The Incorporation Doctrine is the mechanism by which the Supreme Court makes the Constitution "evolve." When five or more justices come to believe that a right is "fundamental," they strike down state laws that limit that right without a "compelling" reason. In this way, state laws on everything from panhandling to the death penalty become subject to the veto of unelected federal judges. This, in the words of Justice Hugo Black, "simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom and transfers that power to this Court for ultimate determination--a power which was specifically denied to federal courts by the convention that framed the Constitution."

The problem with the Incorporation Doctrine's "fundamental" vs. "compelling" test is never clearer than in the Court's 1973 Roe v. Wade decision. Whether a woman's right to privacy is sufficiently fundamental or whether a state's interest in protecting an unborn life is adequately compelling is, to quote Justice Felix Frankfurter, "merely subjective." The decision must depend on the personal values of the justices who sit on the Court.

That's why the Senate confirmation process for federal judicial nominees has become a fight to the death between opposing sides of the abortion question. The Roe v. Wade decision turned the Senate confirmation process into the last opportunity for the people of the United States, through their elected representatives, to have any say at all in the making of law and public policy on this issue.

Just for comparison, let's look at how the Founders' design, as James Madison explained it, would handle the abortion question. The power to regulate--or not regulate--abortion is not one of the "few and defined" powers delegated by the Constitution to the federal government, therefore it is one of the "numerous and indefinite" powers which remain in the state governments. Under the Constitution, the people of one state have no power to tell the people of any other state what their law on the subject ought to be.

The Founders might have suggested that the people of the United States amend the Constitution to establish--beyond the reach of any court or legislature--that a woman has a right to privacy, or that a fetus has a right to life, or that a woman has a right to privacy in the first trimester of her pregnancy and a fetus has a right to life in the third. Whether any of this is a good or bad idea is a separate argument--the point is that the Founders excluded the judiciary from policy-making, and we should seriously consider the possibility that they knew what they were doing.

Then we should get out the Constitution, read the directions and write some amendments that spell out our privacy rights in plain English.

Here's a place to start if you're interested: "Why There is No Constitutional Right to Privacy, and How to Get One."

Copyright 2005

Source notes:

The quotation from Justice Goldberg's opinion in Griswold v. Connecticut can be found at 381 U.S. 479, at 497 (1965). Within that quotation, Justice Goldberg cited Bates v. Little Rock, 361 U.S. 516, at 524 (1960), McLaughlin v. Florida, 379 U.S. 184, at 196 (1964) and Schneider v. Irvington, 308 U.S. 147, at 161 (1939).

For complete source notes, please see the appendix to The 37th Amendment, online at www.ExtremeInk.com/appendix.htm.

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