The Penumbrae are Emanating . . . ewwwwwww

So the right to privacy rendered concrete by Roe v. Wade was said by (I believe) Justice Blackmun to arise from the "emanations of penumbras" in the Bill of Rights. Within his majority opinion, Blackmun completely invented the trimester system as a legal (rather than purely medical) defining factor. In other words, Blackmun was no strict constitutionalist; it could be argued that Roe v. Wade was as politically motivated a decision as Bush v. Gore. Mr. M told us that Clarence Thomas kept a plaque in his office that read, "No emanating of penumbras, please!" (Somehow I feel like I must be wrong about it being Clarence Thomas, but why on earth would I think it was he if it wasn't?)

We all know the Supreme Court makes mistakes according to its time--Dred Scott, for instance. It's the Supreme Court case with the most painful dramatic irony that I know of (though damn, I'm going to start feeling really uneducated when my friends in law school read this blog), as in, the decision was not only that Dred Scott, a slave who moved to the North and tried to claim his freedom, could not claim his freedom, but in fact could not have brought the case before the Court in the first place because he wasn't actually human. Seriously. The decision says that. And a hundred and thirty years later, Thurgood Marshall was the Chief Justice. Gives you pause--as they say in Avenue Q, "except for death and paying taxes, everything in life is only for now." Of course, I find that doesn't usually make it easier to get through right now; I'd imagine Dred Scott would agree.

I'm not saying the right to privacy is a mistake, per se; I am questioning the existence of strict constitutionalists, contrary to popular rumor, and I'm saying the right to privacy, like everything else, is a fickle and changing thing. It will come, it will go. And a lot of people believe it's going now, and a lot of people (possibly including myself, though I'm not sure) believe that the conflict over that was what decided the election this year. T doesn't believe that (note to my friends 'n' family: you're just going to become features of this blog because conversations with you figure into the way I think about pretty much everything. If you don't wish for that to be the case, please Email me); L does, but L had an interesting take on it that I want to take up and loop around. L wrote to me that she couldn't believe abortion "(which is just such a non-issue)" had decided the vote. If Republicans really care about the safety and lives of fetuses, they should, she said, be focusing a little more on things like illegal mercury dumping. Which in all probability causes infinitely more birth defects and health problems than there are abortions every year.

I don't agree that abortion's a non-issue, especially with the religious flames rising as high as they are, but the second part is definitely important. How literally are we allowed to take the "right to life" enshrined in the Constitution? There is, of course, the death penalty, which is going to require at least one post of its own, but the abortion/mercury dichotomy is an interesting one in terms of public and private. It could be said that mercury dumping violates--at the very least it compromises--one's right to life. Legally, could a fetus's right to life actually be being violated? Given that it's incapable of bringing a lawsuit, and presumably the only people in a position to object to the potential abortion are not the person who'd actually be getting said abortion, who has standing? So on neither side of the abortion debate, which is about what is ostensibly a private matter, would there be a strict constitutionalist--one side has to operate from emanations of penumbras (PENUMBRAE, for fuck's sake) within the document, and one has to operate from very shady comceptions of standing. Mercury dumping, which is ostensibly a public issue, could get some strict constitutionalism in there, as it'd be a matter of where could you find in the Constitution that the right to life is any more than literal?

I don't think this post is going to be nearly as clear or thesis-oriented as many of the previous ones, because I just don't know where I'm going. But I think it's that both sides of any debate have a preconceived notion of some kind of public morality. Mel claims that the difference between liberalism and conservatism, fundamentally, is that the philosophy of liberalism is pluralistic and the philosophy of conservatism is polarized right and wrong, and while I agree, pluralism is itself a public morality, if much more difficult to enforce/use as entertainment than polarized right and wrong is/are. (My father thinks that the reason the right is so far ahead these days is because polarized right and wrong makes for much better Jerry-Springer-esque political fights in our society of instant-gratification entertainment . . .) And on such issues as abortion or gay marriage, the left has a public morality of privacy. We have a right to be left alone, we believe--must believe--that our decisions regarding our bodies and our intimacies are our own, that these actions shouldn't be legislated against because they have no effect on people outside of us. Which is my definition of intimacy, by the by--it's what's between individuals, usually two of them but occasionally more, as in my uncle's family, that is not of anyone else and not relevant to anyone else. So the right to privacy, the right to intimacy--the right to keep something as your own.

BUT! I think this might have been where I was going when I wrote the first two paragraphs two weeks ago. That is the very essence of the right's economic stance, isn't it? (Economically retarded here--please correct me if I'm wrong.) Fiscal conservatism is fundamentally the belief that your earnings, your financial decisions, are your own, that it's unfair to claim that you have a respnsibility to answer to anyone else about your moneys. To be really reductivist (I hope my dad is reading my blog and is prepared to shoot me down), the right feels about money what the left feels about issues more physically/sexually/intimately oriented.

And when I draw that comparison, they both seem stupid, and neither seems enshrined in the Constitution (though, to be fair, I haven't read the Constitution for a few years now, it's just that Mr. M and Ms. L were *really fucking good teachers.*) Public morality, while by no means settled, exists, and the debate is relevant to how we relate to one another. The right to *marriage* is different from the right to intimacy. While I hope everyone knows that I do support gay marriage, I do think too much is being made of the debate, and that marriage laws are really different from sodomy laws. Sodomy laws are (no, WERE! Yay!) bullshit for exactly that reason: there is no non-Leviticus-defined argument to claim that consensual sodomy is anything other than intimacy, and intimacy has nothing to do with anyone else. Marriage, gay or straight, is actually making demands of society, demands both financial and emotional. The fact that people have sodomy (do you "have" sodomy?) doesn't mean that people who share their citizenship are tacitly responsible for said sodomy. With marriage it does mean that. And it's the same with abortion. To say a society allows abortion does make us all part of a tacit agreement to believe certain things we may not all believe . . . what Blackmun was attempting to do was make it not a public act, and I think ultimately that will not last. I'm not sure I believe it to be a constitutional issue, penumbrae or otherwise. Though it's going to stay constitutional, it may be a case I think the Court never should've taken. But if it ain't constitutional, then what is it? Moral? Laws and morals are another question for another day. But I should stick in here that my dad thinks, and I agree, that the pro-choice movement loses some ground by not acknowledging that abortion is difficult. Ultimately, yes, it can--and legally must, in a society that isn't so good about birth control and is ridiculously overpopulated--be a choice between a living, cogniscent woman and her living, non-cogniscent fetus, but it's not an easy decision, and it's not a good option but rather a necessary evil. And it may be that the left loses ground by not acknowledging that, though that takes us back to the polarity issue.

And money and mercury are the same thing. Not as each other, but part of the same system. It's ludicrous to say that our finances are not tied up with the society we live in--anything that allows us to earn money is part of that, given that consumers are, and so it's a public act. We as wage-earners or wage-givers or whatever the fuck we are (I just read THE JUNGLE) are exerting an influence on society and it only makes sense for society to exert that influence on us, ditto marriage slightly grayer ditto abortion. (Purpler ditto?) And let's not even get into education stemming from that . . . that too is its own post. But the environment doesn't get to consciously or systematically exercise its influence on us . . . environmentalist buddies, are you out there? Please help me.

Okay, I have no idea if that made sense to anyone else. I'm not entirely clear on whether it made sense to me. It started out being about the fact that no side on the Supreme Court can really claim more loyalty to the Constitution than another, and now I guess it has to do with the fact that no one political party/political hand/whatever can claim to have more loyalty to a social or moral public system than another. I think that's what I said, anyway.