Living Dangerously

Those who believe in a highly elastic Constitution describe the object of their affection as a “living Constitution.” Apparently, according to famous Harvard law professor Laurence Tribe, that document did some fast living in the mid-1980s.

As reported in the New York Times today,

In a draft article for Attorney General William French Smith [in 1981], Judge Roberts wrote that the Supreme Court should not interpret the Constitution to give rise to new rights.

“All of us, for example,” he wrote, “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.’ ”

….

In another document, a 1981 memorandum to Mr. Smith summarizing a law review article with seeming approval, Judge Roberts said its author wrote about “the so-called ‘right to privacy,’ arguing as we have that such an amorphous right is not to be found in the Constitution.”

According to the eminent Professor Tribe, the views expressed by Judge Roberts in 1981

were at the time “still at least marginally defensible although, by my lights, misguided even then.”

But the rejection of Judge Bork in 1987, according to Tribe, changed everything, even apparently the Constitution.

This [the fact that Roberts’s view of privacy was “marginally defensible” in 1981] was no longer the case, Professor Tribe said, after Judge Bork’s nomination was defeated, an action that he and many other liberal law professors supported. “It was not until the mid-1980’s,” Professor Tribe said, “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.”

There you have it, the “living Constitution” doing some rapid living. Judge Roberts’s (and Hugo Black’s and John Hart Ely’s and Potter Stewart’s, but never mind) view that the “privacy right” that Justice Douglas was mistaken to find in “penumbras, formed by emanations” from the Bill of Rights was “marginally defensible” in 1981, but after Bork’s rejection a mere six years later

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.

I know I repeated that last bit, but it strikes me as dense enough to bear repeating. I can’t think of a better example of the “living Constitution.”

Except that I’d say that sort of rapid living is living dangerously.