WADE L. R O B I S O N

T H E CONSTITUTION AND THE NATURE OF LAW

Rhetoric about the Supreme Court’s making law, and ignoring the intentions of the framers of the Constitution, is no doubt motivated by such Court decisions as Roe v. Wade. The rhetoric is also animated, however, by a prima facie compelling argument. The argument is that if no one ever thought of such a right as that of privacy, for example, until over IO0 years after the adoption of the Constitution, the Court can hardly be appealing to the Constitution in basing any decision on such a right.‘ The Court must be importing such rights into the Constitution, the argument continues, and so is making law. Such reasoning supports a t least two truths about the Supreme Court: the Court’s Constitutional task is to expound the Constitution, not make law, and it is constrained in that task, not free to interpret however it wishes. These truths need supporting, but, I shall argue, that prima facie compelling argument used to support them rests upon a fundamental misunderstanding of the nature of law. That misunderstanding turns upon a general puzzle about interpretation that is peculiarly acute in the law. The puzzle is that we can seemingly operate perfectly well with a concept, making our way through the world without difficulties, thinking, if we think about it at all, that we understand perfectly well what the concept means and

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An underlying appeal to this argument may be one reason why former Attorney General Mcesc is so concerned to press the otherwise mvial claim that rhc Constitution and “the few, slim paragraphs t h a t have been added to the original Constitution as amendments” are not (nurncrically) identical t o thc < h u r t ’ s uncarly 500 volumcs of ReporL5 of cases” (“Thc Law of the Constitution.” Uiccntcnriial Lccturc at rhc Tulane Univcrsiry Citizens’ Forum on thc Biccntennial of the Constitution, p. 6). As 1 shall notc bclow. i t is appropriate to say, to the extent such matters can be datcd, r h a t thc concrpt of privacy first cnrcrcd the law in rhc 1890s. SCC tootrlotc 3 1 .

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so entails, and yet find ourselves, one day, with a puzzle about how to apply the concept that means, no matter what we do, that we did not understand the concept perfectly well. W e must change our understanding of the concept, and that will sometimes mean not just cleaning up its fuzzy edges, but radically alterihg it, and one crucial aspect of the puzzle we face is whether we project t h a t new conception into the past, reinterpreting the past i n its new light. o r maintain that there is 3 clean break benvecn the old a n d tlie new. o r arguc t h a t thc conception is there, i n the past. but cotifuscdly. If the conccpt is i n thc law. a n y alteration m a y radically cliangc the prior configuration .of legal relations. as happe‘ncd i n Roe I!. W d r , giving rights and powers to those who did not havc them, or know t h a t they had them. But i t is morally wrong either to hold someone accountable for an act or omission about which the law appears silent o r to deny someone a right if they are entitled to it. Yet if we can hold that there was a Constitutional right to privacy in, say, 1964, then the Connecticut officials who upheld the state law a t issue in Griswold v. Connecticut, where the alleged right to privacy made its introduction into Constitutional literature in 1,965, were responsible for denying a right - though it is arguable that, from their perspective, for all the world it looked as though the Constitution was silent on the matter. This moral problem may push us either to resist new conceptions or to say that the new understanding is only that, a new understanding of what was always there. Conservatives who think the Court cannot be appealing to the Constitution in basing a n y decision on such a right as that of privacy and Ronald Dworkin, who argues that ”there always [is] a legally right answer in hard cases”,? respond to the same moral concern: the right must have been there if people arc to rely on it or to be accountable by it. Dworkin’s theory is thc r t w l t ot a tl~imbcrof fact(>rs. including a ccrrain contingent institutional icaturc o f courts.’ but the rcspoiisc lic

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This is how Michael Haylcs arid L.ii-i-y Alcsandcr ticscrihc 1)workin’s commitnicnt in ‘Hcrculcs or Proteus? Thc Mariv Thcscs oi Inald [)workin‘. ,%< T h e example I havr in mind is the casc of an iinpcrsonator of Richard Avcdon. thc photographcr. A man would approach wonicti. primarily in bars. introduce hinisclf as Avcdori. rciiinrk oii their extraordinary 1 ~ - a u r y .a n d offer t o take a series of photographs of tliciii. raking carc t o iiotc t h a t ottcntiiiics beautiful wonicii do not photograph well $0 t h a t lie could i i i a k c i i o proiiiisrs. Hc would t h r i i rscort the wonicii t o h i s r(x>iii o r their.;. sonictinics prctrnd to take their picrurcs. slccp with them i t ' they wcrc willing and soincriincs when rhcy wcrc not. sonictiincs heat thcni. and con rhcm out of moncv. The man was using Avcdon's name to claim Avcdon'\ idcntiv. for iioii-coiiiiiiTrcia1 gains. Scc 'The Phony Photographcr', Newsweek. Vol. (>O. Scpt. 19, 1977. p. 4.3.

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right to privacy is already i n the Constitution, (2) it is not in the Constitution, or (3) it is there, but confusedly. If the right is already there, it is not a new right, but only newly recognized and we are just naming it. If it is not in the Constitution, it is new, and one must argue that it is fundamental enough to justify Constitutional protecnon. This second option would be available if what Ihave suggested may be Hamilton's view of the Constitution had prevailed, if one had as well a conipelling argument to protect rights not listed in the Constltution itself, and if the Supreme Court were not restrained from creating the law and requtrcd only to expound it.'" But Hamilton's view did not prevail, and various constraints - Constitutional, itistttutiondl, and political - prcvent the Supreme Court from taking the second option. So the Court ends up saying that a right that only came into our consciousness over 100 years after the adoption of the ConstitutiAn and the Bill of Fbghts really was there all the time, underlylng, perhaps, and thus grounding such rights as the right against illegal search and seizure. The Court's recognition of that right sits confusedly, I would argue, between saying that it is there and saying that it is confusedly there, between (1) and (3), that is, but, I would also argue, the Court has good reasons for such mugwumpery. The claim that the right to privacy is in the Constitution, confusedly or clearly, may seem astonishing, but it is no less astonishing than a simple claim that it is not there. Whenever one projects any concept into the past, one finds proponents on both sides of the projection. Some find it obvious that a particular concept was there, and some find it obvious that it was not. O n e need only examine the

(1) the

x' An imporrant issuc and a great deal of history is hidden here in thcsc phrases. I t is not obvious that a court and thc Supreme Court in particular is not to appcal beyond thc Constitution, say, to fundamental rights that exist indcpendcntly of any Constitution and would require changing legislation and so would allow rhc Court to crcarc law. and the history of how i t came to limit its power to intcrprcting the constitution and, more importantly, the reasons for that limitation are of moral import. But that is the subject for another paper. We need only note here that there is an important issue here to be explored.

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controversies surrounding Kepler’s laws and the underlying claim that planetary orbits are elliptical to sense how much hangs on such a claim: a whole conceptual world may be lost or transformed. Those who think privacy i n the Constitution ask, almost rhetorically. how the founding fathers could not have meant to protect such a right i n saying, for instance. t h a t “the right of the people to be sc‘curc i n their persons, houses. papcrs. a n d cffects. ngainst iiiircasoiiable searches and seizurcs, shall not be violated . . .”. Those who think i t obvious t h a t the concept is n o t there procccd i n the samc way, ashng ”How could they . . .”. The answer to both responses is the same: little is obvious in Constitutional law, and a substantive conclusion requires a substantive argunient. not a qucstion. Neither projection is obvious,” and which is correct depends ultiniately on whether a good case can be made for the right’s really either underpinning other clearly specified Constitutional rights, or being a clear implication of such rights, and upon what may seem an odd ontological issue: what is the status of rights before they are recognized? Can a right exist unperceived? For upon the answer to that question rests a concern about whether the Court, in such a case as R o e v. Wade, legislates or expounds. Regarding rights, is essepercipi?3R

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IV.

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It is one of the curious features of [he uncovering of a new concepc - like that of privacy - that when we project i t i n t o the past. we find it hard to conceive of what it would havc been like not to havc had t h e conccpr. clcarly articulated and undcrlyirig one’s other coiiccption5. So we t o d a y find it d i f f ~ ~ l t t o undcrstand how Aristotlc could n o t Iiavc wcii a pciiduluin. b u r s.iw i i i \ t c a d :i heavy object consrraincd i i i I C S attempt to get back t o its tiarural place. earth. Jusr so. i t may he difficult to scc how the Fourth Amciidnicrit right agaiiist unrcasoiiahlc searches and seizures could riot Iiavc hccii a r i g h t rcgardiiig privacy. b u t wc should take care not to project i n t o their undcrsraiiding o i w h a t rhcy wcrc protecting o u r present conception. Their coticcrn may havc bccn simply to guaranrcc the sccunty of thcniselvcs and of their personal effects from unrcasonable searches and seizures. The two concepts arc not ~dcntical. \H O n this issuc. scc my ‘The Functiori and Limits o f Legal Authority’. i n ,ilutliority: A Philosophical Analysis, cd. K. Bailie Harris (Birniiiigharii: University of Alabama Press, 1976). pp. 1 1 2-3 I .

W e have moved, with this question, a long way from that simple prima facie plausible argument with which we began, and we can now. I hope, see solile of its faults. One is t h a t it presupposes a conception of the law i n which, once stated, no development o r change is possible in the nieaning of, and i n our understanding of, any provision of law. This position - that no change is possible - is false. No theoretical enterprise precludes changes in our understanding of its original suppositions. Not even logical truths have such immunity, for we understand logical truths more clearly today, with developments in modern logic, than, say, Aristotle did - though Aristotle would clearly recognize ‘our’ laws of logic. But legal rules and principles, developed as responses to particular social problems, are even less likely, a priori, to have the feature of immutability not even logical truths have. T h e history of the equal protection clause of the Fourteenth Amendment has been in part the result of the unfolding of the unarticulated principle that people should not be “treated differently in ways that profoundly affect their lives because of differences for w h c h they have no responsibility”. If that principle does underlie that clause - and one would have to argue for that claim - then we may understand it differently than those who proposed it, and that is no more cause for concern than our having a different and deeper understanding of gravity than Newton’s rather truncated conception. A second problem is that it seems taken as a given that when the Court decides, it recognizes a pre-existing right. W h a t is bothersome about Roe 1’. Wndr for many just is that there is no obvious preexisting right to which to appeal. But the claim that there is a right answer, even i n hard cases, where t h a t means that one of the parties has a right which the court ought to recognize, cannot be a primitive of a n y system. There is a moral reason, of course, for making that claim: how else could one morally justify denying someone’s claim? But there are also moral reasons for denying it, as conservatives emphasize. In hard cases the Court will sometimes ap2ear to be arguing for a policy matter as though it were a matter of right. To the

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extent its arguments have t h a t appcarance, i t puts a t risk its reputation as an objective arbiter of dispurcs. But, i n a n y event, no matter which position one takes, one needs " t o argue for it, giving substantive Constitutional reasons, and one needs ro argue for it on a case-by-case basis. Who is to know, a priori, which solution is best when one of our concepts, like that of equal protection, suddenly seems as inappropriate as my concept of a croque nionsieur? Change in our understanding of the Constitution, in short, is possible. The stakes, however, must be high for one to have to argue for what ought to be such an obvious truth. One fear is judicial anarchy. But judges are no more free to make the law mean what they wish than I am to make a croque monsieur mean coq au vin. Judges must deal with history and institutional constraints, among other things, and though I would like still to have to deal with Myke Bayles about this, he would think it right that I have to deal with the French. I+. of Philosophy. Ibchesrer Insr. of Technology. Rochester NY 14263-0887, U S.A