June 17th, 2006

Regime Change Begins at Home

Who Brought Birth Control to Good Boys and Girls Everywhere? The Liberty Claus(e)

One thing that has to be said about the interpretation of the US Constitution is that, contrary to what they say (or the Constitution says), the US Supreme Court reads the polls, too. Which means that sometimes they don't let the original intent of the authors of parts of the Constitution stand in the way of doing what's right. But the case can be made that when they did so in the most famous case, they were obeying the original framers of the US Constitution -- just not the framers of that particular part of it. It's at the heart of the hottest long-running political debate in America, the one that comes closest to threatening to plunge the country into a second Civil War, and it came about like this.

The US Constitution and Bill of Rights have an awful lot to say about what the federal government can and can't do. It is, however, remarkably quiet on the subject of what state and local governments can and can't do. There was, in fact, a proposed amendment in the earliest draft of the Bill of Rights that suggested that the Constitution extend to citizens the same protections against state and local government that they were given against the federal government. The author was laughed at, and his proposal never even came close to passing in Congress, let alone getting ratified. This left us with the odd situation while the federal government couldn't censor news stories that it didn't like, couldn't declare an official government religion, couldn't detain citizens without trial or compel them to testify against themselves, individual states and counties and cities could, so far as the US Constitution was concerned, do all of those things. However, state legislatures can read polls too, and saw how incredibly popular those protections were; as a result, they were eventually written into every state constitution. In fact, many state constitutions actually go farther than the Bill of Rights does on some of these questions. Nonetheless, it was the clear intent of those who wrote the Constitution, and those who ratified it, that citizens have no guaranteed right to have the federal government step between them and local governments on this issue. However, they took this stance with no fear of tyranny whatsoever, because they took it for granted (naively) that Americans would never tolerate a local attack on liberty. Indeed, the US Constitution itself says that its primary purpose includes "to secure the blessings of liberty to ourselves and our posterity;" that any well-armed citizenry governed by this Constitution would sacrifice their liberty to a government that was within reasonable marching distance was unthinkable.

Now fast forward a bit, about one lifetime, to the end of the US Civil War. The Constitution's balance of power in favor of slave states has been tipped the other way by the simple expedient of setting brother against brother and drenching the country in blood; the Constitution is now to be purged of pro-slavery bias and abolitionist sentiment is to be enshrined forever. So the 13th Amendment to the US Constitution banned slavery. But that might have left some loopholes, so shortly afterward a 14th Amendment was added to make sure that nobody wriggled around the 13th Amendment by finding ways to turn people into slaves without calling them that. And one of the many provisions in the 14th Amendment, one unambiguously intended to keep former slave owners from finding legal excuses to capture and re-enslave their former property, says that "No State shall ... deprive any person of life, liberty, or property, without due process of law ...."

Now fast forward another lifetime. The Executive Director of Planned Parenthood of Connecticut has been arrested, tried, convicted, and sentenced to pay a $100 fine for the crime of opening a clinic to dispense contraceptives to married couples. It being 1965, and the laws against contraception not having been enforced in any meaningful way in over 30 years (and, in fact, the US government having distributed millions of contraceptives during World War II), it was plain and clear even to the judges who voted to uphold Estelle Griswold's conviction that the law itself was "uncommonly silly." But seven of the nine judges were convinced that there had to be something in the original intent of the founders of the US that would prevent the state of Connecticut from intervening to tell married couples that they couldn't use condoms. They finally settled on the weakest, flimsiest argument since the Dredd Scott decision (to which dissenters frequently compare it). Blatantly contrarily to the intent of the authors of the 14th Amendment, the Court ruled that the 14th Amendment's guarantee of liberty was broad enough to mandate that no state law could infringe on any truly basic, fundamental human liberty, such as the right of married couples to have whatever kind of private sex they wanted to. That 1965 case, Griswold v Connecticut, forms the backbone of almost every Supreme Court ruling that has anything to do with sex or reproduction since then, including most notoriously Roe v Wade (sharply limiting the authority of states to impede abortion) and Lawrence v Texas (doing the same for private homosexual sex).

So, whose original intent counts, and as decided by whom? There's no way you can say, with a straight face, that it was the intent of the Congressmen and Senators and state legislators who voted for the 14th Amendment that this proposed amendment would grant broad, new, unimaginable rights to private citizens and a right to appeal to the federal government for protection of those rights. At most, their original intent was to secure the same rights commonly held by 19th century white people to black people; the idea that "life, liberty, or property" entailed vast swaths of new rights never came up in the debate. But when I think about what the framers of the original Constitution had in mind about the "blessings of liberty," and how cranky they got when it was suggested to them that some of those rights needed to be enumerated or else people wouldn't assume they were rights ... I can't shake the feeling that while the Court only got away with it because the public was (at the time) on their side, they were serving the intent of the Founders quite nicely.