I have found the Constitution a rather fascinating document for some time in large part since it covers so much ground. Therefore, any number of constitutional issues touches many issues of fundamental importance, such as the whole abortion deal. This issue is so interesting to me because again it raises so many questions -- moral, equality, historical, privacy, and so on. Abortion also touches upon free speech, criminal justice, federalism (the federal partial abortion ban is wrong on that ground alone), and more. And, one can come at it from many angles -- for instance, one might say that true family values is letting families themselves decide this question, using personal moral choices not dictated by the state. One might cite Sacred Choices, spelling out various pro-choice religions.
On some level, obviously, it is a rather distasteful and/or unpleasant subject. But, it is so comprehensive in scope that it simply is fascinating. And, so much of the ground is often elided over in the debates on the issue. Griswold itself shows this -- and I say this even before reading the new book (Griswold v. Connecticut) on the case, which sounds like a must read -- the fact that the opinion cites cases covering the right of "privacy and repose" but one matter. Blame does go on the rather thin opinion itself -- for what turned out to be a rather seminal case, the opinion is mostly a throwaway.* A concurrence by Justice Goldberg (joined by Warren and Brennan) fleshed it out somewhat, but not on the privacy issue per se -- it was more concerned with using the Ninth Amendment to beef up the overall concept of "substantive due process" itself.
The seven justices in the majority (though Harlan covered the ground in his Poe v. Ullman dissent [widely quoted in later years a la Brandeis' Olmstead dissent] a few years before) basically joined with White (who also had a concurrence) in assuming the right at issue was obvious. Maybe so, but it basically took to Casey (1992!) for the Supreme Court to directly supply an expansive defense to the right to privacy. Until then, it was in effect accepted, but the foundation was based on scattered cases. Roe itself did not help too much ... the opinion is not worth the disdain it receives, but it seems like the opinion lost a section at the printer. You know, the one that connects the dots a bit more with some descriptive glue.
But, having been working on a personal opus on the Constitution, I sort of give them a pass. First off, editing is hard. How I survived before the word processor is unclear. I have various stuff written in long hand and my main thought it that we do not pay schoolteachers enough. This is not said because I know one personally ... it is because they have to read a ton of stuff that is even halfway as sloppy as my handwriting. And, it is not just the inability to write legibly; it is the whole editing thing. I was reading over something I wrote for college ... college now. I just thank goodness the professor was somewhat in his dotage ... this is the only way I managed to get a B in the class given this thing was a big part of the grade. On the other hand, word processing software was less particular in those days.**
Still, since the subject fascinates me, the effort was enjoyable. I now know why Laurence Tribe decided to stop writing his constitutional opus -- he knows that there is just too much ground to cover, and providing a halfway decent summary or adequate coverage of the issues is not quite possible. Choices are made, things are left out. And, missteps are made in the process. All this business about constitutional law being in a state of flux is just an excuse. As to the fact he is an expert -- though expertise is apparently overrated these days -- well, that is why he gets the money and face time.
Who needs that, right?
---
* Some suggest Justice Douglas had an even less impressive draft opinion (this is somewhat hard to believe) but was counseled by Justice Brennan, who basically was a key contributor of the final reasoning of the opinion. But, in the 1950s, Douglas gave a trio of speeches on the "right of privacy," in part noting that various rights amount to "penumbras" of enumerated rights. A right to privacy -- included a note on how it is fundamental to liberty (some realm of private choice being a core component) -- is also a theme found in some of his opinions, including two dissents in particular.
I find it depressing that many accounts of Griswold failed to note such things, though a recent Daily Kos post does cite the "privacy cite" section of Griswold. Anyway, if Brennan did counsel Douglas to flesh out his opinion, Douglas did so by summarizing his own past writings.
** One person I got to know a bit online is particular with her editing. I noted to her that it is just pointless to re-read one's writing too many times, since it just makes you find errors. And, you never can find them all after you reach a certain point of verbiage. Still, I guess since she, uh has to follow ethical guidelines respecting a certain level of care, such perfection because second nature. This is why one will not find a "would of" for "would have" in her writings.