How the Constitution Evolved Between 1981 and 1987

A New York Times story about John Roberts' views regarding privacy notes that "in his two years on the federal appeals court in Washington, Judge Roberts has addressed significant privacy issues only in his Fourth Amendment decisions, sustaining police searches and other actions in the nine cases in which the issue arose. But there is little overlap between Fourth Amendment doctrine and the sort of constitutional privacy rights involved in cases concerning broader social issues."

Am I the only one who worries more about Roberts' tendency to find searches and seizures reasonable than about his ability to perceive the emanations and penumbras that led the Supreme Court to strike down state laws against contraception, abortion, and sodomy? The Fourth Amendment, after all, is undeniably part of the Constitution, while the privacy rights implicated by bans on contraception, abortion, and sodomy are a lot harder to locate there. Which is not to say they don't exist, or even that it's impossible to come up with a principled argument for using the courts to defend them as a matter of constitutional law. (I threw that in for you Ninth Amendment fans.) But it is certainly possible, as Clarence Thomas suggested in Lawrence v. Texas, to believe a sodomy law is silly and unjust without believing it is inconsistent with the Constitution.

Or maybe not. In a 1981 article that Roberts, then an assistant to Attorney General William French Smith, wrote for his boss, he said: "All of us…may heartily endorse a 'right to privacy.' That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label 'fundamental,' and then resort to it as, in the words of one of Justice Black's dissents, 'a loose, flexible, uncontrolled standard for holding laws unconstitutional.'" As the Times notes, this critique echoed the view of many scholars, including abortion rights supporters such as John Hart Ely, who wrote in 1973: "What is frightening about [Roe v. Wade] is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure."

But according to Harvard law professor Laurence Tribe, such views today are beyond the pale. In 1981, Tribe allows, the argument Roberts made was "still at least marginally defensible although, by my lights, misguided even then….It was not until the mid-1980's that intervening developments could be said to have exposed such views as resting on so cramped and narrow a concept of liberty that any nominee committed to a project of restoring them to the law posed a danger to the American Constitution."

What "intervening developments"? Did a long-lost version of the Constitution turn up? Did historians discover new evidence regarding the Framers' intent? No, according to the Times, the crucial development was the rejection of Robert Bork's Supreme Court nomination. Only then did it become clear that John Hart Ely was wrong about Roe v. Wade.

[Note: I've corrected the reference to the sodomy case.]