Constitution Day Musings—Part 1

The experts at Georgetown are right to highlight the following excerpt from the opinion of the Court in PLANNED PARENTHOOD v. CASEY:

1. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

But equally important is the following from the opinion of the Court in LAWRENCE v. TEXAS:

2. “Had those who drew and ratified the Due Process Clause of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew that times can blind us to certain truths and later generations can see that laws once thought to be necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Controversial thought experiment: Has the Court here come to understand the Constitution in a more perfectly Lockean way?

1. In PLANNED PARENTHOOD, the Court seems to mean that women have the right not to be defined as women by the state. “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives,” the Court explains. Women are free to do whatever men do as free individuals not being stuck with the biological necessity of having babies. Men, of course, are perfectly free not to be employed as reproductive machines by the state. Persons are mysteriously free from nature to determine for themselves who they are as particular beings. But surely they are limited by concern for the unborn? To some extent, the Court concedes, but the woman’s freedom [implicitly to do what she pleases with her body as a free or essentially disembodied being] trumps that concern in the decisive cases. Each person has property in his or her body, as Locke explains, just as each has property in his or her land and money.

President Obama believes that this assertion of autonomy is compatible with what scientists teach these days. But it isn’t. They deny that there’s anything mysterious about being human or that we’re really free from nature to define who we are. Our scientists, as we say on this blog, choose Darwin over Locke. But our Court, devoted as it is in its way to liberty, chooses Locke over Darwin.

2. Our Court now agrees with Locke’s “nominalism.” Words are weapons used to maximize human liberty, and we become more free from nature and each other over time. The narrative of our constitutional country is the liberation of the individual from oppression, and over time we see that more and more of our law is neither necessary or proper for free or autonomous beings. So the right to same-sex marriage is an assertion of liberation from biological necessity that was, in the past, mistakenly thought not to be possible. We overcome, partly by using the word “liberty” progressively more aggressively, what we used to think were natural limits.
It’s no wonder that libertarians like Randy Barnett were so thrilled by LAWRENCE, demanding only that this understanding of “liberty” be used to challenge all of our law (especially, of course, economic regulations).

Come to GEORGETOWN tomorrow if you want to hear more. Don’t forget to bring me a CONSTITUTION DAY gift.