The Supreme Court of the United States has an obligation to promote progress. This statement may come as shocking to those who believe the courts should play a limited role in the political sphere. However what proponents of such a position fail to realize is that taking a constructionist view of the constitution or refusing to strike down laws that are not coordinated with the spirit of the constitution is a political action. This view contains no less bias or “correctness” than those who make interpretations of the constitution to reflect the need to stay modern. Literal interpretations are still interpretations. They prefer to adopt the status quo instead of the progressive.
I know that this may seem like ranting, but its importance becomes clear when examining a decision where, in my opinion, justice was not achieved. In the 1986 Bowers v Hardwick case, the Supreme Court of the United States failed to recognize the implicit, yet fundamental right to privacy in the constitution. The issue at stake was whether or not a state could constitutionally criminalize the practice of sodomy. For more information on the case, click here.
Justice White, author of the majority decision, was very explicit of this fact by writing “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy as hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” (Found in the opinion of the court) This seemingly neutral statement already provides a bias. They are setting up the ground work to disregard the issue of the ramifications of their decision on those who choose to engage in the aforementioned actives.
From this point, Justice White sideswipes the precedents of Griswold v Conn. and Roe v Wade by stating, “Any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state prescript is unsupportable.” (The decision) From here, he leans on tradition and judicial restraint to rule that the state can regulate sodomy. However, White conveniently ignores the tradition set of privacy from the government. The Bill of Rights along with the history of the nation set forth this precedent. By ruling that the state can regulate the sexual choices of individuals, arguably one of the most private aspects of one’s life, they ruled that privacy, unless it fits with the status quo, does not matter. This is where the real harm of the decision comes. It is in the moments that we find ourselves alone, not in the eyes of the world, and away from direct influence or persuasion, that we find who we are. If the privacy of sexual decisions is no longer considered important and underscored by the constitution, it is not a far step to consider the “undesirable” politics to be just as regulated by the state and thus the character of our common being.
Instead of rejecting the freedom to create oneself, we should embrace this responsibility. In Justice Blackmun’s dissent he writes, “Every free citizen has the same interest in ‘liberty’ that the members of the majority share.” This means that regardless of how popular one’s actions are, as long as they do not harm others, ought not to be regulated by the state. This philosophy is what has promoted the progress we have seen, from a nation with slaves and without representation for most, to a nation with an improved standard of living and opportunity to make political change. So to the majority I say this, your philosophy toward privacy is dangerous, your decision ignores the winds of the future, and though you may slow down the development of our national identity, as Martin Luther King Jr. said, “The moral arc of the universe bends at the elbow of justice.”