The history books tell us that Gavrilo Princip, the Serbian nationalist who shot and killed Austrian Archduke Francis Ferdinand in 1914 at Sarajevo, started World War I by providing the occasion, or excuse, for the release of long-smoldering political tensions and ambitions. Thus can small trickles unleash floods.
In our own time what will turn out to have been a constitutional Armageddon, a case called Bowers v. Hardwick, began even more inconspicuously. The circumstances were these: In mid-1982 a twenty-nine-year-old Atlantan named Michael Hardwick was ticketed for carrying an open bottle of booze in public. He did not answer the summons, and a bench warrant was issued, following which, per routine, the ticketing police officer went to Hardwick’s home. After being let in by someone who seemed to live there, the officer observed through a partly opened bedroom door Hardwick and a third man engaged in fellatio. A Georgia law, unenforced for decades, included such behavior in the crime of sodomy.
The County prosecutor dropped the case. But a singular opportunity to reorder society was at hand. Hardwick’s predicament was ideally suited to serve as a referendum on what for his generation was a pivotal legal question, namely, must the state remain “neutral” on questions of the morally good life, and stay its hand until “harm” to innocent bystanders is threatened? Put this another way: since the “neutrality” and “harm” principles are the distinguishing features of philosophical liberalism, the issue is, are our institutions to be determined by liberal political morality?
With expert legal assistance, including the services of the ACLU and Harvard’s Laurence Tribe, Hardwick pursued this bellwether question all the way to the United States Supreme Court. The doctrinal issue on which the case was carried was the right of “privacy.” This is the thread that stretches from the 1965 contraceptives case (Griswold v. Connecticut) to the Nancy Cruzan decision last year. The most notable station in this progression is, of course. Roe v. Wade.
The decision in Bowers v. Hardwick, handed down in 1986, was, as advertised, a landmark. A bare 5-4 majority rejected Hardwick’s claim that “mere immorality” provided no rational basis for lawmaking, that morals laws as such were unconstitutional.
Anyone cheered by the decision, however, has reason to think again. For the majority opinion carried by a margin of only one vote, and one of the five”Lewis Powell”recently recanted his decision before a Harvard Law School audience. Powell, to be sure, is retired, but no one, possibly including David Souter himself, yet knows what he will do with the issue. At least at his hearings before the Senate Judiciary Committee, Souter agreed that judges ought to enforce, over against the deliberate judgment of elected representatives, a right of privacy not found in the Constitution’s text. This concedes the major premise of Hardwick’s constitutional argument. And the Cruzan decision brought together a majority that still embraced that same privacy jurisprudence. Moreover, while the Hardwick majority reached the right conclusion, they provided no counterargument to the powerful and coherent, though profoundly mistaken, dissent. They were simply “unpersuaded.”
Why is the dissent mistaken? Because, first, Hardwick’s claims, as a matter of legal theory, are subject to cogent, even dispositive, criticism. At the deepest level, one questions whether the Hardwick notion of individual autonomy”a congeries of emotions, psychological motives, biological needs, and other subrational data”can be taken as a morally sufficient ground for human action. Princeton legal philosopher Robert George has recently defined an alternative, traditional view of “morals legislation.” Truly immoral behavior, he says, even if “harmless” to others, may still be subject to legal proscription in the interests of the actor. Morals laws are justifiable by a “paternalistic concern for the moral character of persons who desire to perform immoral acts, and a quasi-paternalistic concern for the moral character of persons whose desires and choices are likely to be affected by the moral quality of the social milieu which morals laws may help to maintain.” In this view, law encourages an individual to form, and then helps him to maintain, a virtuous character. Besides the argument of conservatives that legal maintenance of the moral consensus is necessary to a functioning society, George emphasizes that it is truly good (not just socially or individually useful) for persons to be virtuous, and that only true (i.e., verified not only by cultural habit but by critical reason) moral norms may be legitimately enforced.
But were we, pace Robert George and the conservatives, to accept Hardwick’s legal theory as true, the dissent would still be mistaken. For though Hardwick would have a good argument, it would still not be an argument decisive for constitutional lawmaking”which is, we do well to bear in mind, distinct from legal theory and, more important, stems from a definite enactment that confines theoretical speculation. Hardwick’s argument is one that should instead be addressed to legislators. They create rights all the time. Historically, they have created the bulk of ours. In fact, they have recognized the right of privacy. Since 1960 about half the states have repealed laws like Georgia’s. And without repealing it, Georgia didn’t enforce its own. The point is, there are a lot of good ideas out there”free public education, welfare, social security, nondiscrimination in the work place”that have never been constitutionalized. They are bedrocks of our cultural and legal orders, yet they exist entirely at the pleasure of our political process. It is essential to counteract the widespread uncritical identification of good ideas, even political morality itself, with constitutional law. Ours is, for better or worse, unequivocally not a government by the judiciary, or anything approaching it.
“Morals laws” are an option for legislators under our Constitution. They may pass laws against sodomy. They do not have to. They may adhere to the traditional view. But they may also be liberals, and decriminalize sodomy as well as other “victimless crimes.” In this particular, our Constitution is agnostic: it neither commands nor prohibits proscription of so-called victimless immoralities.
What, then, is the correct constitutional law answer to the question posed by Hardwick ? It is not the same answer as that to the related question in legal theory. I share the view articulated by Professor George, which is that immoral actions, even if not harmful to innocent bystanders, may be prohibited. May but not must, because a host of prudential factors”available enforcement resources and other demands for them, the unlikelihood of favorable jury verdicts, the loss of privacy attending enforcement efforts”counsel restraint. We are lucky the founders left the matter out of court: courts are not particularly adept at such multivariable, prudential calculations. The new privacy jurisprudence, indeed, does not contend that they are. In this jurisprudence, the issue is viewed as a matter of principle”and courts are claimed to be far better than legislatures where matters of principle are at stake.
In this context, we need to deal with what I would call the “traditionalist pragmatic” approach to Hardwick. Pragmatic Traditionalists share a belief in the immorality of gay sex, and are suspicious of the judicial privacy project, not least because it produced Roe. Still, they might hold that protection of Hardwick’s behavior is a not unreasonable price to pay for an encompassing right of family and sexual privacy. To be sure, Roe is not included in this trade-off; Roe is non-negotiable. But otherwise a bargain can be struck: yes to the “privacy” project accepting the Hardwick dissent as a cost outweighed by freedom from state meddling in intensely private matters like sex and family life.
Good luck to the people who hold such views, if they imagine they can do a deal on some issues of privacy and at the same time keep Roe off the table. The proponents of Roe persistently lump it with all the other elements of the privacy project, particularly the right of contraception in Griswold ”a right, be it noted, now enjoyed not only by married couples, but by single adults and minor children. Moreover, the constitutional doctrine of privacy also includes a “right-to-die” whose consequences may be very unhappy to contemplate. Now toss in Hardwick. Our pragmatists may be ready to reconsider their bargain.
Well they might, for”so I would argue”the privacy doctrine is inextricably bound up with a radically new vision of social life, one thoroughly destructive of traditional morality. The only genuine constitutional argument proposed on behalf of Hardwick’s claim would, if accepted, institutionalize this new vision. If we redefine the nature of human existence”personal, social, political”as organized around the needs and dictates of the “expressive” or (my term of choice) “erotic” self, this is the constitutional order that follows. Behind the beckoning right to privacy lurks a revolutionary worldview.
To begin to flesh out this argument, let us turn back and retrace the arguments offered for Hardwick by Tribe and by the four dissenting justices (Blackmun, Marshall, Brennan, Stevens).
There is no reasonable doubt that the justificatory efforts in this case are alien to the constitutional text. What Phillip Kurland once said about the Court’s church-state decisions is here apropos: the Constitution has been an excuse, not a reason, for the opinion. Consider the text “interpreted” by the Hardwick Court: “No state shall deprive any person of life, liberty, or property without due process of law.” Nonspecialist readers no doubt are wondering what sodomy has to do with that clause. The answer”ultimately unsatisfying”is a long historical tale we can skip, except to note that the tale is all about simple judicial insertions into the Constitution. The basic problem is not so much that the constitutional text is clay in the black-robed potters’ hands. Were that the case, at least the clay itself would limit the possibilities for manipulation. No, the application of the “due process” amendment to Mr. Hardwick’s pleasures is pure creation ex nihilo.
Even the pretense of finding warrant in the Constitution has become half-hearted. Some vague and undifferentiated “first amendment,” rather than the one encompassing the rights actually named by the First Congress (free speech, free press, right of assembly, free exercise of religion, etc.), is invoked. Then a catchall “privacy,” or “autonomy,” is substituted for the even more motley collection that makes up the Bill of Rights.
In 1965, Griswold set the standard for this kind of analysis, which I call the “in-de-ductive” method of constitutional lawmaking. “Induction” refers to a general analytical technique that first investigates all relevant phenomena and seeks in them a common principle. “Deduction” starts from an intuited or self-evident principle and proceeds to derive implications. Griswold did both. First, it surveyed the entire Constitution, particularly the Bill of Rights, and decided that “privacy” was a common element, following which a “general” right to privacy was dubbed an autonomous principle. From this principle certain desired conclusions”like use of contraceptives or abortion-on-demand”are confidently drawn. The special virtue of in-de-duction is that neither contraception nor abortion could persuasively be drawn from a single constitutional clause. Loosed from all moorings in the now-transcended text, the visionary jurist is free to pursue his extraneous commitments.
Perhaps the best example of this kind of extratextualism can be found in Blackmun’s method in Hardwick. The key passage, in full:
I believe we must analyze respondent Hardwick’s claim in the light of the values that underlie the constitutional right to privacy. If that right means anything, it means that, before Georgia can prosecute [Hardwick], it must . . .
Note the progression away from the text until it is completely out of sight. Blackmun starts with a bulk right called “privacy,” tenuously tethered to the Constitution. Then he decides (how is unspecified, but one suspects further recourse to a preferred nonconstitutional vision) its underlying values. Top all of this off with flat assertion, “If this means anything, it means . . . ,” and you have, I submit, completely removed the Constitution from constitutional law.
“Authority” in Blackmun’s hands is precedent, and consists almost entirely of citation to post-Griswold “privacy” cases. He does cite a few earlier cases, but a careful look at them” Pierce v. Society of Sisters (1925), Meyer v. Nebraska (1923), Skinner v. Oklahoma (1942)”shows they are not in any meaningful sense precedents for Hardwick. (Suffice it to say that these cases antedate the erotic self’s takeover of constitutional law.) The argument, then, is a judicial construction of the last twenty-five or so years. Griswold is invariably cited first in this string of contemporary “privacy” cases. But Griswold cannot support Hardwick for the simple reason that, as Eisenstadt v. Baird (a successor contraception case) admitted, Griswold only struck down “an unconstitutional infringement of the right of marital privacy.” Eisenstadt blithely and without justificatory effort redefined marriage””marital privacy””by reducing it to its individual, constituent parts. That is, Eisenstadt struck down on privacy grounds state laws against contraceptive distribution to unmarried persons by the simple declaration that what married persons can do, it is irrational to say single persons should not do. So much for the family.
The chief culprit, however, is not the glibly mischievous Eisenstadt but the 1969 decision in Stanley v. Georgia. Stanley is uncannily similar to Hardwick. Georgia also prosecuted Mr. Stanley for sexual indulgence in his home. Police officers, acting for reasons unrelated to the morals offense for which Stanley was arrested, found dirty movies in Stanley’s bedroom. He was charged with possession of “obscene” materials. This statute did not, as the one in Hardwick did not, attend to any particular place. Therefore, the statute was not a public decency law; its concern was not with protecting the sensibilities of passers-by. The same concern for the moral well-being of Georgians explained both laws. The issue commonly addressed by both: is human sexuality a faculty intended merely for self-gratification?
Now, prior to Stanley, there had been a category of printed and other materials entirely outside the protections of the first amendment. In common legal parlance, “obscene” materials enjoyed no constitutional protection; their regulation presented no constitutional question. Obscenity cases were all about defining what constituted “obscenity,” and thus distinguishing it from the protected class of materials. The parties to Stanley stipulated, and the Court assumed, that the movies were “obscene” as the term was then defined. The case made no effort to redefine “obscenity.” Yet Stanley’s prosecution was invalidated due to some constitutional right relating to “obscene” materials.
The conclusion, according to Justice Marshall’s opinion, was that Stanley’s conduct “cannot constitutionally be made a crime.” Why not? Mr. Stanley “is asserting the right to read or observe what he pleases”the right to satisfy his intellectual and emotional needs in the privacy of his own home.” This “traditional notion of individual liberty” was found by the Court to be embedded in the philosophy of the first amendment:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure, and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone”the most comprehensive of rights and the right most valued by civilized man.
In what I submit is the first shot in a genuine constitutional revolution (not Griswold, which is distinguishable, and not the later Roe), Marshall asserted that prior cases actually stood for the individual autonomy suggested by the “right to be let alone,” save for regulation justified by “important interests.” What might those interests be here? “Georgia asserts the right to protect the individual’s mind from the effects of obscenity.” Marshall well understood this argument, even as he scoffed at it. He realized it was the traditional commitment to nurturing the moral well-being of individual citizens. “To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the first amendment.” With this, the Bastille has now fallen.
Stanley is all about limits on government power. Georgia said that exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence. To which Marshall responded that there was little empirical evidence for that assertion. The law had until then firmly rejected the idea that a connection with anti-social conduct need be shown. In the new world of Stanley, regulation of public distribution of obscene materials is appropriate solely because children might get them (and they are too immature to exercise the new sexual freedoms), or they “might intrude upon the sensibilities or privacy of the general public.” Casual display of erotic materials dragoons unwilling participants into the new orgiastic morality.
How has this revolution been supported? By flat assertion. Here, in order, are the central “justificatory” passages for the three bedrock cases”Stanley, Eisenstadt, Roe:
Stanley (1969): “If the First Amendment means anything, it means that [Stanley can watch what he pleases at home].”
Eisenstadt (1972): “If the right of privacy means anything, it is the right of the individual, married or single, to [make his or her own procreation decisions].” (Emphasis in original.)
Roe (1973): “This right of privacy [wherever it is in the Constitution] is broad enough to encompass [right to abortion-on-demand].” Then, Justice Blackmun in Hardwick: “If that right [of privacy] means anything, it means [that Georgia must justify to the judiciary its proscription of sodomy].” (Eerily, Justice O’Connor’s swing vote in Cruzan aped this formulation: if due process “protects anything, [it must protect] an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water.”)
There is more to Blackmun’s “argument,” but now we are, finally, at the climax of the story. The question remains: how is he to persuade us that liberal political morality is the socially authoritative, architectonic principle”which is to say, that it is the constitutional master principle? Blackmun’s strategy, largely derived from Tribe’s writings, recognizes that the contested issue is one of legal theory. Legal theory, as Oxford’s John Finnis notes, is part of social theory, and a methodologically critical social theory is determined by moral and political theory. Even from the perspective of critical thought, a particular legal theory depends for its validity upon an encompassing account of nothing less than human existence and reality. In that sense, legal philosophy is “contingent” upon a broader account of human experience. A legal theory also depends for its intelligibility and attractiveness upon the extant web of social relations, propositions, and institutions. That is, before “true” (i.e., verified by critical reason) political philosophy can be “enculturated””adopted by persons in a concrete society organized for action in history as a reason for authoritative political action”it needs a hospitable cultural environment. It must “fit” with prevailing customs and laws as well as existing political institutions.
The obvious way to “reconstitute” a society, or constitute it anew, is by direct appeal to an entirely different paradigm of social and individual life. From that may be derived a legal philosophy with which the Constitution can be retooled. This is precisely what the Hardwick dissent proposed. Its direct, unmediated appeal to a reconstituted social reality is unprecedented in our constitutional history. The appeal is itself a frank confession that privacy doctrine is, after all, wholly discontinuous with our cultural and legal traditions. It cannot be justified by looking backward. Thus, it looks forward, and articulates the vision of a brave new constitutional world.
Tribe most brazenly propounds such a vision in his celebrated treatise, American Constitutional Law. He allows that the Constitution contains “no discussion of the right to be a human being.” The judiciary will fill in the gap. Judges have “reached into the Constitution’s spirit and structure and [have] elaborated from the spare text an idea of the human’ and a conception of being’ not merely contemplated but required.” Required, evidently, by “humane” constitutional law, which Tribe frankly equates with a philosophy of “human beingness.”
Blackmun is no less philosophically intoxicated. In what now may be pronounced the justificatory paragraph, he wrote in Hardwick:
We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life. “The concept of privacy embodies the moral fact that a person belongs to himself and not others nor to society as a whole.’ “ Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S., at 777, n. 5 (Stevens, J., concurring), quoting Fried, Correspondence, 6 Phil, U Pub. Affairs 288-289 (1977). And so we protect the decision whether to marry precisely because marriage “is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut, 381 U.S., at 486. We protect the decision whether to have a child because parenthood alters so dramatically an individual’s self-definition, not because of demographic considerations or the Bible’s command to be fruitful and multiply. Cf. Thornburgh V. American College of Obstetricians & Gynecologists, supra, at 777, n. 6 (Stevens, J., concurring). And we protect the family because it contributes so powerfully to the happiness of individuals, not because of a preference for stereotypical households. Cf. Moore v. East Cleveland, 431 U.S. at 500-506 (plurality opinion). The Court recognized in Roberts, 468 U.S., at 619, that the “ability independently to define one’s identity that is central to any concept of liberty” cannot truly be exercised in a vacuum; we all depend on the “emotional enrichment from close ties with others.”
That entire paragraph contains but two statements of “law,” that is, principles ratified by a majority of justices. One, the Griswold pericope, actually runs contrary to Hardwick’s argument; Griswold protects heterosexual marital privacy, not gay frolics. The other, from Roberts, contributes something but is clearly doing menial work. The rest are scattered judicial statements, not authority. And the critical passage is from a scholar, ironically the former Reagan Solicitor General Charles Fried.
The paragraph is also overpopulated. The “right to intimate association,” for example, reduces to a more fundamental right to define oneself, to be (in Tribe’s formulation) “master of the identity [I] create in the world.” So do the remaining statements about marriage, family, and the Jaycees (that’s what Roberts was about). Thus Blackmun: that “individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many right’ ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds.” As Russell Hittinger has summarized, legal uses of “autonomy,” “expression,” and “self-determination” are various modalities of a right to be self-defining. “Privacy” and “conscience” are two more commodious shorthands. Given the predominant context”sexual relations and reproduction”in which judges have encountered this colossus, it is here christened the “erotic self.”
While recognizable in our society as far back as Emerson, this “self-creating self” was until quite recently culturally marginal. The aim of the moral life had long been precisely the ability to attune oneself to an order of being not of one’s making, to discern and abide an objective morality. The apex of the spiritual life was the achievement of kenosis, self-emptying, so that, as St. Paul said, it is not I who live but He who lives in me. Until the 1960s no Supreme Court case could talk of the “moral” fact that we belong to ourselves for the simple reason that in a culture of traditional believers, and regardless of rights against government, “morally” persons thought they “belonged” to God. That is why Blackmun pointedly pits biblical morality against self-definition. The two are just plain incompatible. All of which suggests that the “expressive” or “erotic” self has gone from the fringe of society to being morally paradigmatic to being determinative of constitutional law in about a generation. Make no mistake about it: this is the tidal wave that sweeps away the traditional devotion to legal fostering of moral soundness. The Constitution is decimated in its wake.
And not only the Constitution. The god of self-creation shapes the rest of human reality. Morality, personal relations, community, society, politics, as well as constitutional law get redefined in turn. Take what I call the “inarguable orgasm.” The object of sex is individual satisfaction, psychological and physical. “Physical intimacy,” according both to Blackmun’s opinion and to the logic of the new expressivism, is a constitutional entitlement. Homosexuality is at least partly an irresistible attraction, rooted in the “fiber of an individual’s personality.” Hence, to deny harmless satisfaction of this primal urge is to deny autonomy, the premier natural right.
Accordingly, marriage is redefined into a mutually beneficial expression of selves, ontologically indistinguishable from exploring the Grand Canyon in a canoe with someone you like. Nor in logic is it necessarily the company of one: in the new dispensation”and the Justices quizzed Tribe on precisely this issue”polygamy cannot be ruled out. Where is the harm to non-consenting participants? No-fault divorce and the new reproductive technology have already demonstrated the “safety” of multiple parents. Ozzie and Harriet have been replaced by Bob and Carol and Ted and Alice and . . .
The “moral” governance of sexual relations is thus a matter of consent and survival. Blackmun’s pathetic attempt to pour the old wine”the traditional condemnation of extramarital sex”into the new wineskins of erotic selfhood proves it. His ingenious reconceptualization is worth viewing in detail. Whatever the erotic self desires, so long as harm to nonconsenting bystanders is avoided, is simply not a matter of right or wrong.
Although I do not think it necessary to decide today issues that are not even remotely before us, it does seem to me that a court could find simple, analytically sound distinctions between certain private, consensual sexual conduct, on the one hand, and adultery and incest (the only two vaguely specific “sexual crimes” to which the majority points, . . . ) on the other. For example, marriage, in addition to its spiritual aspects, is a civil contract that entitles the contracting parties to a variety of governmentally provided benefits. A State might define the contractual commitment necessary to become eligible for these benefits to include a commitment of fidelity and then punish individuals for breaching that contract. Moreover, a State might conclude that adultery is likely to “injure” third persons, in particular, spouses and children of persons who engage in extramarital affairs. With respect to incest, a court might well agree with respondent that the nature of familial relationships renders true consent to incestuous activity sufficiently problematical that a blanket prohibition of such activity is warranted.
All relations are not only self-interested arrangements, but are essentially manipulative. Marriage and family life, however, are inevitably heteronomous, part of me because part of a “we.” Is that not the dread loss of autonomy? How, now, about religious community?
Laurence Tribe in American Constitutional Law finds some “hope of solving the persistent problem of autonomy and community,” which he decisively associates with the “dilemma of contemporary individuals”isolated and made vulnerable to the state’s distant majorities at the very moment they are liberated from domination by those closest to them.” “A rebirth of religious community [is not] a realistic prospect for more than a handful of moderns. However much power we delegate to church hierarchies or congregations under doctrines precluding judicial interference in ecclesiastical disputes, it seems accordingly unlikely that the social and cultural cohesion that family provided in our natural mythology will be supplied by worship or sacrament.”
If there is any answer to this problem in Tribe’s view, it is to be found in “facilitating the emergence of relationships that meet the human need for closeness, trust, and love in ways that may jar some conventional sensibilities . . . .” Of course, now that “family” and “religious community” are effectively irrelevant to the modern individual’s “dilemma,” conventional sensibilities”rooted in devotion to family and church are our Constitution’s nemeses. They cannot be sanctioned or fostered over against an individual’s decision unconventionally to seek “closeness, trust, and love.” The paradigm of religious liberty is no longer the autonomy of a worshipping community”now recast as an aggregate of individuals consoling each other and sharing shelter from the chilly, disenchanted public world of strangers”but individual religious autonomy, the right of “conscience.” In this context, then, religious liberty is but another term for the assertion of the individual will over against all limitations, including God’s plan for humankind.
Marriage, family, and church may seem a bit sterile in the new world, but they are still to some degree havens in a heartless world. At least relations are chosen, we have a right to control such intimate access to ourselves. But we cannot choose everyone who shall live in close proximity. Let me explain, briefly, what society and political life are like in the new world, and how they relate to the erotic self.
In the best-case scenario, venturing into society is like going to a suburban mall. The worst case is like stepping onto a subway car in the wee hours, with no cop in sight. Gone in either event is the security born of control over relations in the private life of family and friends. We are now among strangers whose own “expressions” cannot be predicted and who are essentially subject to no internal moral restraint. In other words, we all live in a world of “subordination” and “domination.” We hope not to encounter too many persons who will express themselves by dominating us. Sure, we may have interiorized the “harm” principle, but the “harm” principle is intrinsically like the Nazi-Soviet pact. Everyone sees it as a statement of present intention produced by prevailing strategic considerations. Everyone also sees that the “obligation” to continued adherence is a function of perceived self-interest. No one takes it as a solemn promise. Like commercial contracts in this new order, we do not promise to do “X.” Rather, we agree to pay the value of “X” in dollars if, at the time of performance, we find it advantageous to do “Y” instead of “X.”
People go to a mall seeking some item or service that will satisfy the desire or need that prompted the trip. The “good” of being there is wholly internal to us. We do not pretend to any kind of “community” there. Its denizens”the merchants”are there to satisfy their desire or need for money at our expense. The exchange need not be unpleasant, but no one doubts that the exchanges are rooted in perceived self-interest.
The late night subway ride differs in only one respect: we might encounter folks with rough edges, “them.” After all, are not all relations strategic moves by solitary egos in the field of power? And have we not convinced ourselves that crime is a function of legitimate needs and desires (for example, money or power) that some persons, usually due to extrinsic societal causes, are denied by the system? The clearest proof here is not the hand-wringing for defendants by the ACLU and the New York Times. Rather it is the replacement of “punishment” as the end of the criminal justice system by “deterrence.” Behavior control, not moral reformation, is all that liberal premises allow us to aspire to in legal operations.
Justice Brennan provided the definitive account of the new society in the 1989 Michael H. case: “[In] construing the fourteenth amendment to offer shelter only to those interests specifically protected by historical practice, moreover, the plurality ignores the kind of society in which our Constitution exists. We are not an assimilative, homogeneous society, but a facilitative, pluralistic one, in which we must be willing to abide someone else’s unfamiliar or even repellent practice because the same tolerant impulse protects our own idiosyncrasies.” We are a society of strangers.
Brennan says our society is “facilitative.” Hittinger remarks that this means “that social goods are recognized only insofar as they serve the choices of individuals.” Society has no intrinsic existence. “If we look at social realities as the products of individual choices, then it is a short step of logic to assert that society has anything other than a facilitative’ value, since that is presumably what individuals endowed it with in the first place.” One might have hoped that “society” might be defined by some deeper bond and commitment, by some shared moral substance of solidaristic spirit. Tradition carried on such an enterprise, in part, by the “enforcement of morals.” That project is now barely understandable to Blackmun. He translates it as simple “intolerance.” But “tolerance,” we can now say, has some daunting costs.
The nature and purpose of political life are determined. Like society, politics is a recurring necessary evil. Its source and nature are determined by our philosophy of “human being.” “Private” life, given what man “is” and wants, is the specifically human life. Men determine for themselves what ends they will pursue. Realization and enjoyment of those ends are intrinsically private activities. As Barbara Lenk writes, “politics is not constitutive of happiness or an aspect of human existence.” “It is not natural’ to man in the sense that it is necessary to the fulfillment of his proper end . . . . “
A more fulfilling conception of politics is ruled out by contemporary liberalism at the very beginning. Politics cannot have as its end the promotion of human excellence or the service of God. Politics maintains enough order to keep the trains running on time while we live our private lives with a maximum possible degree of happiness and autonomy. Politics is the precondition for the maintenance of life”its betterment and its enjoyment”in the private realm.
Law and custom”the product of political and social life”are now necessarily experienced as brute restraint, like the weather or the fact that I will never be Michael Jordan. Rules laid down from without the individual always burden the good of expressive selfhood. Like the weather, we attend to them, their prediction, and their probable effect upon our plans. But they mean nothing.
The substance of constitutional law is now apparent. I have chosen as my summation the critical argument in the amicus brief of the new clerisy, 885 law professors, in the Webster case concerning the right to abortion:
The right of personal privacy stands against state domination over matters crucial to self-possession: self-definition in matters of value and conscience, and self-determination regarding ways and walks of life. By its force, government’s hand is stayed from the diverse choices by which persons define their values, form and maintain communities of belief and practice, and bring up children whose lives in turn will be their own and not the State’s. Accordingly, the Court’s privacy doctrine has placed decisions regarding procreation, parenthood, and family formation at the core of those from which a non-totalitarian government must ordinarily be excluded. The right of personal privacy is the right of self-possession against the State, and the self begins with the body. “[To say] that my body can be used is [to say] that I can be used . . . . “ Moreover, “the sense of possession of oneself . . . extends to possession of one’s function. And this extends quite naturally to reproduction.”
Thus does the doctrine of the erotic self reach its logical conclusion. Any legal obligations of community that might inhibit my creation of my unencumbered self are ruled out tout court as “totalitarian.” Since we all know that totalitarianism is bad and the Constitution is good, it follows as night the day that the Constitution underwrites the erotic self.
Gerard V. Bradley is Professor of Law at the University of Illinois at Urbana-Champaign.