Go,Husband, Go Bear

My professor for Constitutional Law doesn't like Roe v. Wade. Not that he would have preferred to have it come out the other way -- he just thinks the Court got to its result through some questionable reasoning. If they'd come at it the right way, says he, the opinion would have made more sense, the right wing wouldn't have been as outraged, and the holding would have been less vulnerable to chipping away at the edges.

Now, there are two possible ways to get to the result in Roe. You can do what the Court did and ground the decision in a notion of privacy rights. If you do that, you see abortion as a personal decision that affects a woman's body; prohibiting abortion becomes a severe bodily intrusion. The appropriate comparisons are other privacy cases, especially the sexual ones. So you try to rationalize your holding with the case law on contraception, sodomy, and adultery.

On the other hand, you could see abortion as an equality issue. A man who takes part in the fertilization of an egg doesn't have to give up anything more to bring the kid to term. He loses nothing if abortion is outlawed. A woman, on the other hand, will be conscripted into physical service for nine months of her life. Once you take this perspective, you group abortion cases with other sex equality cases: you'll try to fit it in with your rulings in cases on the draft, sex discrimination (especially discrimination against the pregnant), and single-sex education.

In actual fact, Roe was decided on privacy grounds, and the Supreme Court has never looked back. My professor's theory is that life would just be better if the Supreme Court had used an equality argument. In order to make the privacy argument, he maintains, you have to declare the fetus a total non-person and conceptualize its interests as the state's interest in potential life. (If anyone cares about the details, email me and I'll write them up. I'm already in the middle of a digression from a digression). This part of the opinion, he says, completely outraged the religious right, led to Reagan's election in 1980, and has viciously politicized the judiciary.

But he doesn't think that the equality argument is better because it would have led to better political consequences. No, he thinks it's an intrinsically better argument. His whole thing here is that while Constitution doesn't mention "privacy," it has plenty to say about "equality." We've got that whole deal about "equal protection of the laws," for starters, plus a whole amendment about how important women are. You can get an awful lot out of these clauses, including tenure.

On the other hand, privacy is sort of a modern synthesis. Oh, sure, there's that bit about being secure in your person from unreasonable searches and seizures, but that just means that you can't be deprived of your epilepsy medication. Sorry, bad joke. The point is that you can't easily reduce "privacy" to specific Constitutional text. You have to sort of wave your hands and talk about the general idea. (But note that court decisions were respecting this "penumbral" right to privacy long before anyone had articulated that such a right might exist.)

And this kind of waving is utterly anathema to my professor. His whole theory of law, democracy, and what to eat for lunch is based on the text of the Constitution. The man carries a copy of the Constitution in his pocket wherever he goes. If he's ever shot, I suspect the Constitution will save his life. If it's not in the document, it's not there. And if you want to make Constitutional decisions on any basis other than what's in the document, you're stupid.

A lot of people are stupid, by this standard. John Paul Stevens ("getting senile"), William Brennan ("didn't really belong on the Court"), Stephen Breyer ("not really up to this kind of reasoning"), the entire 1979 Court ("all nine of the Justices miss this basic point"), and the entire current Court ("none of them could get a job as a professor of Constitutional law here"), for example. And the Roe Court was especially stupid for basing such an important opinion on its previous privacy decisions, rather than going back to the text of the Constitution.

Who's to blame for this debacle? Well, the Court itself for not being smarter and going to the Constitution. ("Let's go to the Constitution!" says the Warner Wolf voice in my head. Wolf's 1980 defection from ABC to CBS made my Contracts casebook. I wonder whether anyone else in the class was as amused to see his name pop up as I was.) And also the lawyers who didn't make the document-based arguments in their briefs.

And so, he explained, Sarah Weddington was 26 when she argued Roe in front of the Supreme Court and won. But she made the privacy argument, not the equality one. She'd taken one class in constitutional law, at the most, said Professor Constitution. She had seven votes going in; a potted plant could have argued for Roe and still won.

Fweeeeee! Red flag on the play. There's a problem here. Weddington won. What more, precisely, was she supposed to do? On what basis can you criticize a lawyer who wins? She should have made the equality argument, even though she was a facing a Supreme Court that was accustomed to the privacy viewpoint? She should have reduced her client's chances of winning in the hopes of setting a better precedent? She had an obligation to the theoretical clarity of Constitutional interpretation that outweighed her obbligation to her client? Is that what you're getting at?

Now, I did put this question to him, and he did acknowledge that a lawyer's first duty is always to the client, and he did give a careful and thoughtful answer about how to make more document-based claims incrementally. I'm not sure that his splitting-of-the-difference really holds together, but I didn't press him too much on it. That would have been dishonest of me.

You see, I don't believe in the basic canon of legal "ethics" that a lawyer's first duty is always to her client. Much like the similar rule of medical "ethics" that a doctor's sole obligation is to the patient before her, this arrogant bit of self-justification collapses under the weight of its own extremist zeal. The lawyer's first duty is to the client because clients shop around for aggressive lawyers willing to bend the rules. Caught in a race to the ethical bottom, the legal profession has chosen to take the "is" for the "ought." Much that is unfortunate follows closely thereupon. Lawyering as we know it is quite literally a mercenary profession; but it doesn't have to be. If we had better ethics, it might not be.

So, as much as I may disagree with the idea that the whole world should be based on the text of the Constitution and as much as I may take issue with some of my professor's claims, I can't really rely on legal ethics to keep him from demanding that lawyers argue their cases based on his theories. I don't like those ethics any better. So the best I can do is point out the contradiction. Then these two ideas can go at each other. Not that I really want either to win, but there will be some blood shed here. And whoever sheds it, I won't mind very much.

The way the joke goes is that a woman is out camping with her good-for-nothing husband when they're attacked by a bear. The husband is struggling with the bear, they're going at it hand-to-paw, and he shouts out to her to get the rifle. But she just stands there, looking on and shouting out:

"Go, husband! Go, bear!"

A final note. I'll have more to say about document-based interpretive theories at some later date. I'm more down with them than down on them. True, I think that a rich notion of "privacy" isn't wholly a modern invention and a Constitutional theory that doesn't take privacy seriously has some serious explaining to do. (Similar claims apply to free speech, which clearly means far more today than it did in 1791). But on the whole, there's something here worth serious attention. The Constitution isn't just a collection of clauses; it's also a system and a process of self-government. And when you pay attention to the close textual interrelationship of different parts of the Constitution -- as my professor does in his scholarship -- some fairly amazing insights emerge.