by Matt Barr

A war with many fronts

Via Jacob Sullum I see that Laurence Tribe regards the last 40 years' ideological battle over the Constitution to have been fought elsewhere than just the courts. A New York Times piece today:

In a draft article for Attorney General William French Smith [in 1981], Judge Roberts wrote that the Supreme Court should not interpret the Constitution to give rise to new rights.

"All of us, for example," he wrote, "may heartily endorse a 'right to privacy.' That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label 'fundamental,' and then resort to it as, in the words of one of Justice Black's dissents, 'a loose, flexible, uncontrolled standard for holding laws unconstitutional.' "

The quotation was a telling one. Justice Hugo L. Black's dissent was in Griswold v. Connecticut, a 1965 case in which the Supreme Court struck down a Connecticut law that made the use of contraceptives a crime. It was, Justice Potter Stewart wrote in his own dissent, "an uncommonly silly law." But, the dissenters said, the Constitution did not give courts the power to strike down even silly laws unless they were in direct conflict with a constitutional command.

Justice William O. Douglas, writing for five of the seven justices in the majority, said the law was at odds with a fundamental constitutional right to privacy. The right, he said, was implicit in or suggested by guarantees in the First, Third, Fourth, Fifth and Ninth Amendments. The "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees," Justice Douglas wrote in explaining the roots of the right to privacy.

Roe v. Wade, the 1973 decision finding a constitutional right to abortion, and Lawrence v. Texas, the 2003 case striking down laws making homosexual sex a crime, both relied in part on the Griswold decision.

We hear from John Hart Ely (from whom I learned a great deal): "Ely, a leading constitutional scholar who said he supported the availability of abortion as a matter of policy, wrote in The Yale Law Journal in 1973: 'What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. It is not constitutional law,' Professor Ely said of the decision, 'and gives almost no sense of an obligation to try to be.'" Then Prof. Tribe:

Tribe, a law professor at Harvard, said the views expressed in Judge Roberts's draft article were at the time "still at least marginally defensible although, by my lights, misguided even then."

This was no longer the case, Professor Tribe said, after Judge Bork's nomination was defeated, an action that he and many other liberal law professors supported. "It was not until the mid-1980's," Professor Tribe said, "that intervening developments could be said to have exposed such views as resting on so cramped and narrow a concept of liberty that any nominee committed to a project of restoring them to the law posed a danger to the American Constitution."

Sullum ably picks apart the absurdity of this: "What 'intervening developments'? Did a long-lost version of the Constitution turn up? Did historians discover new evidence regarding the Framers' intent? No, according to the Times, the crucial development was the rejection of Robert Bork's Supreme Court nomination. Only then did it become clear that John Hart Ely was wrong about Roe v. Wade."

Prof. Tribe is betraying a view of constitutional jurisprudence that says the ideological battle is being fought ex parte -- in Senate hearing chambers. His quote would be appropriate and unremarkable if he were talking about a Supreme Court opinion issued in the mid 80s, but he appears to be talking about, as Sullum notes, the defeat of the nomination of Judge Bork.

Prior to Judge Bork's nomination, Roberts', and Ely's, view of Roe were not so "narrow and cramped" as to be "danger[ous] to the American Constitution," but post-Bork they suddenly were? That question was settled definitively not by an opinion of the Court but by a vote on a nominee to sit on it? We voted on who was right, and you lost! While conservatives should have had plenty of notice that the Bork nomination was being regarded as the end of the world by the likes of Sen. Kennedy, here most weren't aware it was a referendum on what approach to constitutional jurisprudence was proper and which was "dangerous" -- and that the loser ceded the right to its opinion.

Read in this light Prof. Tribe's remarks remind you of the stakes involved in a Supreme Court confirmation battle. One side, at least, views it as an integral part of determining what the supreme law of the land is. The other side balks at that view, but when it does, it winds up with Anthony M. Kennedys. While all accounts (well, maybe not all accounts) seem to be that Judge Roberts' confirmation will be free of all but the most juvenile moonbattery, President Bush would do well to remember to cross his t's and dot his i's on this vote.

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