Tag Archives: right to privacy

Another “Great Migration”?

It’s a truism that reasonable policymaking requires a familiarity with history, and the ability to apply the lessons of history to current issues. That’s one of the many reasons that the current Rightwing efforts to label a major part of American history as (that dreaded) “CRT”, and dispense with its study, is so misguided.

There are lessons to be learned–and legislators in several states (including Indiana) rather clearly haven’t learned them.

Even before the current efforts to eliminate America’s mistreatment of Black and Indigenous people from school textbooks, those texts glossed over the “Great Migration.” That’s a shame, because the legal and social realities that drove Black Southerners North should warn Red state legislators about the likely consequences of imposing disabilities on women.

A recent essay drew that parallel:

As soon as Black Americans had the ability and resources to leave the Deep South after the Civil War, they left…. More than six million Black Americans moved from the former Confederate states to the Civil War-era Union states between 1910 and 1970….

Jim Crow laws were America’s shameful version of apartheid, resulting in racial inequality and state-sanctioned terror.  Jim Crow laws restricted every aspect of life for Black Americans, making it nearly impossible for Blacks, or for that matter white Americans, to reach their human potential. But while whites suffered from the contagious disease of racism, they also benefited at the expense of their Black neighbors.

The same states that practiced the most pernicious forms of Jim Crow are also the states that today restrict the health care rights of women. The lesson of the Great Migration of Black Americans is that people can and arguably should vote with their feet.  Women — by the millions — must be at least contemplating leaving these states and moving to states where their rights are duly respected.

As of this week, 15 states have passed total bans on abortion since the Supreme Court’s overturning of the Roe v. Wade decision. These 15 states do not include Georgia, which recently passed a ban after six weeks, but they do include Texas, Mississippi, Alabama, Arkansas, Tennessee, Kentucky, West Virginia, Missouri, Oklahoma, Wisconsin, South Dakota, North Dakota, Idaho and Nebraska. The female population in these states is approximately 60 million.

The essay was written by Fred McKinney, a co-founder of BJM Solutions. BJM is described as “an economic consulting firm that conducts public and private research since 1999.” McKinney is also the emeritus director of the Peoples Center for Innovation and Entrepreneurship at Quinnipiac University.

The essay echoed an argument I’ve made on this blog and in the book I recently co-authored on women’s progress: women will choose to attend universities, take jobs and raise families in states that respect their fundamental rights.

Legislatures passing these retrograde laws have failed to appreciate their inevitably negative economic impact.  Businesses understand that women’s choices–where to attend a university, where to accept a job– aren’t abstractions. They are a reality, and  employers  are highly likely to factor that reality into their own location decisions–decisions that are already heavily influenced by the availability of a talented and skilled workforce.

It won’t just be women who exercise their choice to settle in fairer states; there are plenty of men who share women’s political and medical concerns. And as the essay points out, the people leaving backward and restrictive states will largely be those who possess the greatest drive and skills, those who can most easily relocate.

There are also those recent travel advisories issued by the NAACP, Equality Florida, and the League of Latin American Citizens–precursors of other advisories affecting tourism. The economies of a number of states, not just Florida, are heavily dependent on tourism.

These realities will depress economic conditions in Red states like Indiana–an obvious consequence that our truly terrible and unrepresentative legislators have failed to comprehend.

The last Great Migration had an enormous impact on American society. As the Smithsonian Magazine explains:

By leaving, they would change the course of their lives and those of their children. They would become Richard Wright the novelist instead of Richard Wright the sharecropper. They would become John Coltrane, jazz musician instead of tailor; Bill Russell, NBA pioneer instead of paper mill worker; Zora Neale Hurston, beloved folklorist instead of maidservant. The children of the Great Migration would reshape professions that, had their families not left, may never have been open to them, from sports and music to literature and art: Miles Davis, Ralph Ellison, Toni Morrison, August Wilson, Jacob Lawrence, Diana Ross, Tupac Shakur, Prince, Michael Jackson, Shonda Rhimes, Venus and Serena Williams and countless others.

Women’s “great migration” is next.

Red states’ continued social and economic decline can be traced to legislatures that refuse to learn the lessons of history.

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Women And The Law

The final part of my “War on Women” argument is mercifully short.

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A Constitutional U-Turn

In addition to the First Amendment’s prohibition against legislating religious doctrine, for the past fifty years Americans have relied upon a constitutional doctrine known as substantive due process, often called the “right to privacy.” That doctrine has strengthened the conviction of most Americans that certain “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception– are none of government’s business.

The right to privacy was explicitly recognized in a 1965 case titled Griswold v. Connecticut. The Court was considering the constitutionality of a Connecticut law prohibiting the use of birth control by married couples. (The law also prohibited doctors from prescribing or pharmacists from selling contraceptives.) William O. Douglas’s majority opinion reflected the logic of its conclusion. He wrote “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

The majority recognized that a right to personal autonomy was necessary to the enforcement of several of the amendments, which Douglas noted would be difficult or impossible to respect without the implicit recognition of such an underlying right. In a concurrence, Justice Goldberg found that same right in the Ninth Amendment, and Justices White and Harlan argued that privacy is protected by the due process clause of the Fourteenth Amendment—hence the doctrinal title “substantive due process.” Wherever it resided–in a “penumbra” or the 14th Amendment–a majority of the Justices agreed on its presence and importance.

Procedural due process protects Americans’ right to a fair process—a fair trial or other governmental proceeding. Substantive due process distinguishes between decisions that government has the legitimate authority to make, and decisions which must be left to each individual. In the fifty years since Griswold, the recognition that the U.S. Constitution protects personal autonomy and respects the right of each individual to self-determination has powerfully influenced American culture. Much of the anger over the Supreme Court’s decision in Dobbs can be traced to shock over Justice Alito’s assault on what most Americans had come to consider a bedrock principle:

Government has the right–indeed, the obligation–to intervene when a person’s behaviors are harming people who haven’t consented to that harm. (Mask mandates to protect public health are an example.) Otherwise, government must leave us alone. Secular and religiously tolerant Americans who had dismissed warnings about growing fundamentalist assaults on that principle, confident that their right to self-determination was secure, reacted to the conservative Christian overtones in Dobbs, justifying an invasion of that right, with predictable shock.

As the foregoing discussion has made clear, different religions—and different denominations within those religions– have very different beliefs about women and procreation, and what amounts to the Court’s elevation of a particular version of Christianity has engendered an enormous and negative reaction. Survey research has confirmed that a majority of Americans, including a majority of religiously-affiliated Americans, disagree with the Court’s decision, and are even more opposed to emerging efforts to make access to contraception difficult or impossible. Large numbers of Americans see the overturning of Roe and cases like Hobby Lobby[ as part of an escalating war on women.

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On November 8th, the American people need to send an unmistakable message to the arrogant theocrats and paternalists on the Court. A massive vote for Democrats–BLUE NO MATTER WHO–will send that message, in three parts: it will be a repudiation of the Court’s current trajectory; a signal that the Court’s legitimacy has dangerously eroded; and it will convey a willingness to make significant changes to the Court’s composition and jurisdiction.

A failure to send that message will be seen as acquiescence to the Court’s retrograde direction, with very negative consequences for all Americans, not just women.

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Privacy And Diversity

America has always been more diverse than most countries. Initially, that diversity meant different kinds of Christians–Maryland, for example, was Catholic, while the other original colonies were dominated by a variety of Protestant denominations. We are far more diverse these days, thanks to immigration, the splintering of numerous sects, and the explosive growth of the “nones,” Americans without religious affiliations.

We aren’t only diverse in our religious beliefs. Individuals represent different races, different regional cultures and backgrounds and very different political and ideological commitments.

The big question is: what sort of government can serve such wildly different citizens and be  viewed as fair across all those differences? (That, of course, is a question that has long preoccupied political philosophers. John Rawls proposed a “Veil of Ignorance”–an intriguing mechanism for determining fairness.)

These days, as columnist Jennifer Rubin has written, an uncomfortable number of Americans are uninterested in fairness; they are interested in dominance. That faction is represented by a right-wing, activist Supreme Court and the Christian nationalists they favor. In their ahistorical vision of proper government,  “a sliver of the electorate (White, Christian, male) exploits anti-majoritarian aspects of our democracy (e.g. the filibuster, the electoral college, gerrymandering) to use the awesome power of the government to impose values rooted in the 19th century on a diverse country.”

In that vision, the proper beneficiaries of public policy are mostly White, Christian and male, and elements of modernity like science and expertise, not to mention diversity, are “foreign, elite and alien.”

Rubin uses a speech by retiring Justice Breyer to explain the countervailing, constitutionally-anchored viewpoint–one that, as she says, recognizes the heterodoxy of America.

“This is a complicated country. More than 330 million people. My mother used to say, it’s every race, it’s every religion — and she would emphasize this — it’s every point of view possible. It’s a kind of miracle when you sit there and see all those people in front of you. People that are so different in what they think. And yet they decided to help solve their major differences under law.”

This vision posits that to achieve “ordered liberty” for a diverse, noisy, rambunctious people, we must respect the right to self-determination — to choose one’s family, one’s lifestyle, one’s profession and one’s philosophy of child-rearing. That necessitates restriction on government so as to protect a sphere of private conscience. It’s what Louis Brandeis called the “right to be left alone.”

Poll after poll affirms that a large majority of Americans believe that the “right to be left alone”–the right to direct their own lives, consistent with their own moral commitments –should extend to such matters as contraception, abortion, same-sex marriage, child rearing and lifestyle.

Until the advent of this rogue court, the Supreme Court had largely agreed. As Rubin reminds us, even before Griswold v. Connecticut was decided in 1965, the court had protected the right to send your child to the school of your choice and receive instruction in a foreign language. In the 1950s, the Court affirmed the right to choose your profession; and the right to travel (neither of which is expressly set forth in the Constitution).

The court in 1923 held that “liberty” includes the right “to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

After Griswold, that zone of privacy was extended to interracial marriage, private consensual sex, abortion, the right of grandparents to live with their grandchildren (i.e. how one defines a “single family”) and to same-sex marriage.

The zone of privacy erected by the Court is precisely what a fair reading of the Bill of Rights protects–the right of individuals to make personal decisions without government interference.  That is precisely what the MAGA movement cannot abide: it wants  government to “control how schools teach race, what teachers say about sexual and gender identity, how parents treat transgender children, and, now, whether women can be forced to give birth against their will.”

In response to the constitutional question “who decides?” the White Christian Nationalists of the MAGA movement respond: “we do.”

At stake right now is the individual’s right to live “free from the tyranny of the government and the mob.” As Rubin says, we need a counter-movement.

In sum, Americans need a counterweight to a Christian nationalist movement that seeks to impose on the majority the set of social beliefs of the minority. They need a movement to defend the myriad ways 330 million Americans engage in “pursuit of happiness” — ways as diverse as the country itself.

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The Right To Privacy

What is the constitutional right to privacy, and why is it controversial?

The term “privacy” is part of the problem: when Americans think about privacy, they think about someone peeking through their window, or riffling through their personal documents–invading areas that we all believe to be…well.. private.

That limited notion of privacy is implicated in the Fourth Amendment’s protection of our right to be “secure in our persons, papers and effects.” But the constitution arguably erects a zone of protection around a different and more expansive type of privacy–the protection of individual autonomy, what we might term the individual’s right to “self-government.” That kind of privacy, protected for the past fifty-plus years by the doctrine of substantive due process, bars the government from making decisions that most of us believe are properly the province of the individual citizen.

Those areas are outlined throughout the Bill of Rights.

The First Amendment forbids government from either censoring or requiring our speech or favoring certain theologies or religions–essentially, the First Amendment requires government to respect the individual’s liberty of conscience. The (overwhelmingly forgotten) Third Amendment says government cannot force us to “quarter soldiers” in our homes (a person’s home is her castle…). The Fourth Amendment explicitly requires government to respect our “security” in our persons and effects absent probable cause to invade that security.

The greatly  under-appreciated Ninth Amendment specifically asserts that rights not explicitly enumerated nevertheless are retained by the people.

That language in the Ninth Amendment was intended to address the concerns of those Founders like Alexander Hamilton who worried that the “enumeration” of protected rights in the Bill of Rights might come to be considered exhaustive–that the omission of certain rights from the list would someday prompt self-declared “originalists” to ignore equally important liberties, including those necessary to the realization of the rights that were enumerated. When the Supreme Court ruled that government had no right to decide whether married couples could use contraception, the Court based its ruling on the proposition that a fair reading of the Bill of Rights required recognition of a “penumbra” protecting a zone of privacy–a zone of personal autonomy– that government was bound to respect.

Scholars and pundits like to poke fun at the term “penumbra,” and the language may well have been ill-chosen, but the Court’s insistence that any fair reading of the Bill of Rights requires respect for that enhanced zone of personal privacy was absolutely correct.

Recognition that the Bill of Rights protects personal or “intimate” decisions from government busybodies–the doctrine of substantive due process, or the right to privacy– has been the legal basis for recognition of rights most of us consider fundamental to the fair operation of modern society: a woman’s right to control her own reproduction, the right of competent adults to engage in sexual activity with other consenting adults, the recognition of same-sex marriage…

If today’s Court eviscerates or overrules that doctrine–if it refuses to respect the line between decisions that are properly left to individuals and those that can properly be made by the legislatures of various states, the United States will head down the path of the Taliban. The only difference will be the content of the theology that the state will impose.

Back in the day, when I was Executive Director of Indiana’s ACLU, I used to explain that the Bill of Rights answered a simple question: who decides? Who decides what prayer you say, or if you pray at all? Who decides what book you read, what political ideology you adopt? Who decides whether you marry, and who? Who decides whether you procreate? The whole point of the Bill of Rights was to ensure that government stayed in its lane–that the state refrained from making decisions that were none of governments’ business.

Today’s radical Court is intent upon erasing those lane lines.

No matter what Alito says to the contrary, eliminating the doctrine that has kept government in its lane won’t be limited to issues of reproductive choice. After all, at least four of the radical judges who voted to overrule Roe insisted during their confirmation hearings that it was “settled law.”

To the extent there is a controversy over the Constitutional right to privacy, it is between those who believe government has the right to make our most intimate decisions and those of us who disagree. Today’s Court is on the wrong side of that debate.

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The Gorsuch Nomination

As I have previously written, the most damning argument against Judge Gorsuch’s confirmation has nothing to do with his bona fides, which are impressive. It is the inescapable fact that his elevation to the Supreme Court will be illegitimate–the result of a very dangerous and cynical misuse of political power.

The Republicans’ refusal to afford Merrick Garland a hearing has been widely criticised as blatantly partisan, so I nearly fell off the treadmill yesterday morning during my workout, as I watched an interview with Lindsey Graham. Senator Graham praised Judge Gorsuch and rattled off his qualifications; then he opined–with no hint of irony–that failure to confirm him would be “political” and thus unprincipled.

Unfortunately, those conducting the interview failed to ask the obvious follow-up question: if failure to approve Gorsuch would be “playing politics,” what the hell was failure to even consider Garland?

The hypocrisy is breathtaking.

But what about Judge Gorsuch himself? His willingness–even eagerness–to fill a seat that will inevitably be seen as stolen is understandable; it’s the Supreme Court, after all. He is clearly highly intelligent; his academic background and professional experience are exemplary. His opinions–whether we agree with them or not–are clearly within the broad mainstream of the judiciary.

The two areas that trouble me are his professed version of originalism and his ambiguous  approach to substantive due process.

True “originalism” comes in a number of respectable versions, but over the past couple of decades, the term has become code for “conservative in the mold of Scalia.”  As Judge Posner (himself a conservative jurist) has persuasively noted, Antonin Scalia’s self-described originalism was incoherent and conveniently invoked. I don’t know any legal scholars who do not begin their analyses by looking to the Constitutional text and its historical meaning–and I don’t know any credible legal authority who would agree with a nice man I once debated, who insisted that “free speech” applied only to oral communications, not newspapers, books or other non-spoken transmittals of ideas. (“It says speech.”)

I often introduce the subject of original intent to my classes by asking “So, what did James Madison think about porn on the internet?” Usually, they laugh–and after we acknowledge that James Madison could never have envisioned the Internet, we consider how the Founders’ clear intent to protect the expression and exchange of ideas from government censorship should be applied to “facts on the ground” that those Founders could never have foreseen. In these situations, people of good will–all of whom believe they are honoring the principles the Founders intended to protect–can come to different conclusions about what fidelity to original intent requires.

I’d be very interested to know how Judge Gorsuch defines his originalism.

The Judge’s approach to substantive due process (sometimes called the Constitutional right to privacy) is unclear. Unlike our conversational use of the term, the constitutional right to privacy is shorthand for the individual’s right to self-determination, the doctrine that identifies fundamental individual rights that government cannot infringe without a compelling reason.

As the Court put it in one case, “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.”

Substantive due process requires government to respect the right of individuals to hold their own political and religious beliefs, define their own life’s meaning, choose their own life partners and control their own procreation. It defines certain areas of citizens’ lives as “off limits” to government. Our current privacy jurisprudence began when the Court struck down a Connecticut law prohibiting married couples from using contraception; the Court held that such intimate personal decisions were none of the government’s business.

Scalia was a ferocious critic of substantive due process; he had a crabbed, authoritarian view of individual liberty. (In Lawrence v. Texas, his acerbic dissent made clear his belief that government has the authority to outlaw fornication and masturbation.)

Would Judge Gorsuch agree? Will he follow Scalia, or respect existing legal precedents that protect our “intimate” behaviors and relationships from legislative assault?

Assuming Judge Gorsuch is confirmed to the “stolen seat” on the Court, his approach to originalism and substantive due process will be critically important. It would be nice to know his positions on those fundamental issues before the Senate votes.

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