"To Have and to Hold: Reproduction, marriage, and the Constitution"

Jill Lepore has an interesting discussion of Griswold and the concern of using privacy instead of equal protection arguments, something that Ruth Bader Ginsburg has discussed. Lepore, as is her wont, finds some interesting historical perspectives and connections. One of the mostly forgotten litigants in the contraceptive cases (numerous cases arose, most stillborn) had a child who later took advantage of the right of same sex marriage in NY.  Mildred Loving supported same sex marriage too.

The Constitution never mentions sex, marriage, or reproduction. This is because the political order that the Constitution established was a fraternity of free men who, believing themselves to have been created equal, consented to be governed. Women did not and could not give their consent: they were neither free nor equal. Rule over women lay entirely outside a Lockean social contract in a relationship not of liberty and equality but of confinement and subjugation. As Mary Astell wondered, in 1706, “If all Men are born free, how is it that all Women are born Slaves?”

Essentially, the Constitution is inadequate. It speaks directly only to the sort of people who were enfranchised in 1787; the rest of us are left to make arguments by amendment and, failing that, by indirection.

The article goes too far for my tastes and I will quote a few sections to touch upon my concerns.  It is quite possible that the fact that men governed at the time was a factor here, but such questions were at the time largely matters of state law. The federal Constitution was largely concerned with the national government.  State laws dealt with these questions.  And, to the degree the Constitution speaks of things, "men" and "women" -- except by use of standard general pronouns -- do not come to play. "Persons" or "the people" have rights.  Women, e.g., can associate together to petition the government for redress of grievances.  And did.

People who want to make arguments against laws that discriminate against women tend to reach for awkward and imperfect analogies: sex discrimination is like racial discrimination; women are to men as blacks are to whites.

Various things in the Constitution factor into reproduction, marriage and related subjects. Religious freedom, for instance, is an important matter here given its power over marriage and morals over history. Criminal protections applied to "persons" and due process of law too factor in here as well.  Interstate relations affected marriage and divorce.  And, so forth.  The Thirteenth Amendment, which the article could have handled better given it has a special domestic component given the evils of slavery, is particularly important. Likewise, the analogy here is imperfect, but "sex" and "race" has various connections. Ruth Bader Ginsburg argued as such.

In the opinion issued by the Court in June, Douglas, citing Harlan’s dissent in Poe, insisted that although a “right to privacy” is not mentioned either in the Constitution or in the Bill of Rights, it is nevertheless there, not in words but in the shadow cast by words. He wrote, mystically, that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” No one mentioned the Nineteenth Amendment, or the idea of equal rights for men and women.

The article quotes someone saying “a right of privacy older than the Bill of Rights” was the language of fiction.  It is argued that it is really a Victorian right, one that benefited men.  But, women spoke in this language in that era too. Their ability to control their lives, including to escape cruel marriages, was a major concern. This "privacy" is therefore not just something for men.  Like rights generally, it was in various cases used to favor certain groups.  But, equal protection alone is not ideal either. Equal protection of what?  Privacy provides an important frame here.

“A right to privacy looks like an injury got up as a gift,” the feminist legal theorist Catharine MacKinnon argued in 1983, since “privacy doctrine reaffirms and reinforces what the feminist critique of sexuality criticizes: the public/private split.” In 1984, Ruth Bader Ginsburg, then on the U.S. Court of Appeals in the District of Columbia, regretted that the Supreme Court had “treated reproductive autonomy under a substantive due process/personal autonomy headline not expressly linked to discrimination against women.” Ginsburg found the Court’s opinion in Roe wanting for a number of reasons; among them was its failure to pay any attention to discrimination against women, or to a woman’s “ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.”

Feminists still support a strong right to control their own lives based on what individual girls and women deem necessary for their own happiness. Abortion rights has particular important to women and Roe spoke to their needs in particular.  Women were the ones burdened. As gender equality developed as a legal construct, a more complete approach was present as shown in the Casey decision. Incomplete, however, is not the same as denigrating half of the argument.  And, "liberty" is a basic concern here, not just "equality," which again raises the question - "of what?"

The usage of privacy can favor certain groups -- e.g., some who are well off vote Republican, since their social rights are protected by their position, so they can vote by their pocketbook or such things like foreign policy.  It also can result in denial of benefits since you still have the right to choose though the rejoinder there is that to have such a right requires some basic floor of resources. And, in the current day, the Constitution very well might be incomplete.  It is a 18th Century document that is not that updated (e.g., to deal with agencies or real world foreign policy) in various ways.  And, one issue there very well might be some basic needs or domestic concerns that are only covered by broad provisions not directly touching upon them.

The history is useful, but incomplete, and somewhat unfair.