Perhaps it’s not surprising, given the esoteric nature of the law, that most Americans have never heard of one of the most important constitutional cases of the 20th century. Griswold v. Connecticut was a landmark, nonetheless, shifting the right of privacy from the loose gravel of abstraction to the firm ground of Supreme Court precedent in the mid-1960s just as the nation was beginning to split into two diverging Americas—one red, one blue.
Yet in the airy precincts of legal scholarship, the right of privacy has remained contentious. Even as the Supreme Court has enshrined the right of privacy in doctrine, many legal scholars have continued to contest its very foundation and to reject it as anomalous in our scheme of constitutional self-government. However, James E. Fleming, the Leonard F. Manning Distinguished Professor of Law at Fordham, isn’t one of them.
A Harvard University-educated lawyer with a Ph.D. in political science from Princeton University, Fleming has been for some time carefully constructing a theoretical framework sturdy enough to serve as a constitutional basis for liberties like the right of privacy or autonomy, and to withstand the onslaught from those who would have such rights purged from constitutional doctrine.
“My argument is that our form of government is a constitutional democracy that puts limitations upon what majorities may do to people,” Fleming said. “Even when political processes are working properly—everybody has a right to vote and votes are counted equally—there are certain substantive limitations on what government may do to people. It may not infringe on those fundamental rights like the right of privacy or autonomy.”
The right of privacy is a catchall phrase of sorts. It may conjure up images of paparazzi hounding celebrities, but it is broader and more meaningful than that. The right comes from an inherent belief that people have a zone of personal autonomy to make certain decisions fundamentally affecting their lives against which government may not transgress. The problem is that nowhere within the “four corners” of the Constitution is there any explicit mention of such rights, or a host of other basic liberties for that matter.
In fact, one prominent interpretation of the Constitution is hostile to a right of privacy altogether. Originalists, as they are known, make a straightforward case: Stick to the “black letter” of the document and limit constitutional interpretation to what the framers specifically meant. To venture beyond such a narrow construction is to them nothing more than judicial activism.
Its leading exponent, former federal judge and legal scholar Robert Bork, has derided the right of privacy as “a loose cannon in the law.”
Fleming is diametrically opposed to that narrow originalist view. He considers the Constitution a “scheme of abstract moral principles,” not a “list of detailed historical rules.” His argument is that there is more to the Constitution than an enumeration of clauses and procedures. Embodied in it is a deep, coherent structure of basic liberties essential to two forms of constitutional self-government: political self-government (or deliberative democracy) and personal self-government (or deliberative autonomy).
Together, these twin structures of constitutional self-government form the core of what he calls his “Constitution-perfecting theory.”
In October, he published Securing Constitutional Democracy: The Case of Autonomy (University of Chicago Press, 2006) in which he details his theory. It is a shot across the bow in the contentious debate over how to interpret the Constitution. He challenges not only the constitutional interpretation of originalists, but points out the shortcomings in focusing only on the processes of democracy stipulated in the document.
His goal in writing the book, he said, was to make the case for a list of unenumerated basic liberties that the Supreme Court has protected, including not only the right of privacy but also such things as liberty of conscience and freedom of association, by binding them into a coherent structure and grounding them in the Constitution, thereby giving them a theoretical heft that had been lacking for too long.
But it doesn’t take grasping a complex theoretical construct, he said, to understand how basic liberties like a right of privacy, even if not enumerated in the document, is nonetheless part and parcel of the Constitution. One only need consider the First Amendment, he said, which prohibits government from passing laws that would abridge the freedom of speech. Nowhere does the Constitution enumerate the right to burn flags. However, the right to burn a flag has come to be understood as falling within the protection of free speech.
“My point is that the language in the Constitution is abstract and just as we should not be worried that freedom of speech does not enumerate every type of speech protected,” he said, “so too we should not be worried that every fundamental liberty to be protected is not enumerated.”
Furthermore, Fleming argues, we should aspire to interpret the Constitution so as to make it the best it can be, rather than reducing it to a list of antique rules. Using his theory to understand and interpret the Constitution provides, he said, the best fit with and justification of our Constitution and underlying traditions of democracy and liberty.
And yet he fully expects that originalists and others will vigorously challenge his theoretical construct.
“I have no illusions that I will persuade people like Bork or [Supreme Court Justice Antonin] Scalia,” he said. “My main aspiration is to work up a structure of our basic liberties associated with autonomy and to justify them as integral to constitutional self-government, rather than as unenumerated, unbounded, anomalous liberties made up by rogue judges.
“Bork once said that the construction of the right of privacy is a constitutional time bomb. Perhaps my theory could be seen as one of learning to live with the bomb. The right to privacy is here to stay and it is fundamental to our constitutional tradition.”
By Victor M. Inzunza