the New Pantagruel

Tantae Molis Erat : Griswold Revisited

by Paul Seaton

I.

exual liberation from legislative restraints and restrictions in this country began with a pair of Supreme Court decisions, Griswold (1965) and Eisenstadt (1972), which together held that married and unmarried adults cannot be legally denied access to contraceptives. Together, they quickly begat Roe (1973) with its well-known right to abort and a bit later engendered Carey (1977) with its lesser-known right for minors to have access to contraceptives. With this quartet of decisions the sexual revolution received considerable support from the Supreme Court, as it lent the authority of “the Constitution” to permissive or emancipatory egalitarianism. Adults or minors, married couples or unmarried individuals, it mattered not: all with a clear constitutional conscience could prevent pregnancy during sexual intercourse, and all (but minors?) could terminate a pregnancy before term. With these decisions the Court boldly entered into, and in important ways aggravated and inflammed, the culture wars.

Roe in turn, after two decades of intense controversy and travail, finally had a progeny, Casey (1993), which upheld Roe’s “essential holding.” Casey also introduced a new term for liberty into our constitutional jurisprudence. That term was “autonomy.” Privacy in general and the privacy rights to contracept and to abort in particular were upheld, but the domain of “privacy” was now populated by a newly named figure: the autonomous individual. Somehow or another, merely being declared to be a private rights-possessor was inadequate to understand the newly emancipated individual and his distinctive constitutional status or “dignity.” This individual, Justice Anthony Kennedy declared, was so “self-legislating” that he had the right to define for himself his “own concept of existence, of meaning, of the universe, and of the mystery of human life.”

After that long gestation period Casey more quickly bore fruit in Romer (1996), then later in Lawrence (2003). These two decisions had to do with the status of homosexuals and of same-sex sexual activities under law. In both instances, democratically-enacted measures in their regard were struck down. In Romer, a large democratic majority in Colorado had approved a constitutional amendment which declined to recognize homosexuals as a distinct, protected class. In Lawrence, Texas had chosen to criminalize homosexual (but not heterosexual) sodomy. In both cases Supreme Court majorities saw the prejudice of traditional stereotypes and anti-homosexual animus and they declared that under the Constitution the “liberty” and the “dignity” of the “free” or “autonomous” individual required that these views not be enacted into law. Yet again the Supreme Court was an active agent, a decisive intervener, in the forced march of sexual progressivism.

The Court claimed to do so, to be sure, in the name and by the authority of “the Constitution,” as performing its sworn duty by articulating the constitutional concept and imperatives of “liberty.” As Justice Kennedy intoned in Lawrence, quoting himself from Casey: “Our obligation is to define the liberty of all, not to mandate our own moral code.” It is remarkable, though, how frequently and predictably this view of “liberty” consorts, that is, comports, with the views of self-proclaimed “progressive voices” and “forces” in American politics and culture.

With these decisions reaching back to Griswold, then, a distinctive understanding of liberty has been implanted and rather decisively taken root in our polity; in them a distinctive construal of man and of our constitutional order has been at work, dramatically altering and shaping our common and individual lives. Its central, defining terms include “privacy” and “autonomy.”

As it happens, there is no need to take my word on this score, especially as I am a critic of this view of liberty and of this jurisprudence. One of its chief contemporary practitioners, the afore-mentioned Justice Kennedy, said as much in his Lawrence majority opinion. He explicitly located Lawrence in the series of cases and decisions I limned above; in it he retraced for all to consider the path that a distinctive form of jurisprudence has taken for some decades now, building upon, and dramatically expanding, precedent upon precedent.

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