Senate Judiciary confirmation hearings of Benjamin Suzuki: 3. Third of five sessions

No closed document will always treat people

as people. It is the unavoidable hubris of

jurisprudence to see the lives of people in

ways they themselves do not. They are

then in jeopardy of being sacrificed to principle.

Benjamin Suzuki, Second Session

Third Session

Senators Joel Seger of Minnesota, Jon Werren of Vermont

Primary Interrogators

(Multiple Original Intents, the Constitutional Convention, 9th and 10th Amendments, Constitutional Faith, Plyer v Doe, Brown v Board of Education, Griswold v Connecticut, Roe v Wade, marital privacy, Meyer v Nebraska, Liberty Interest, Poe v Ullman, Privacy, Lawrence v Texas, Procedural Due Process As Equal Protection Absent A Blanket Denial of Process, Constructive Principle of Forced Exclusive Content, Privileges and Immunities Clause Kills Substantive Due Process, 14th Amendment Due Process Retention of Common Law Writ Against the States, 5th Amendment Due Process Preserves Common Law Writ against the Federal Government, Statute May Not Supplant Common Law, Potential Common Law Protection of Marital Privacy, Federal Role in the Evolution of Common Law, Common Law Marital Privacy Does Not Reach Abortion, 5th Amendment Property Interest Might Stay Some Abortion, Jury Denied Property Interest Might Allow Some Abortion, 5th Amendment Due Process Does Not Reach the Fetus, Autonomy Distinguishes Slavery and the Fetus, Fetus Autonomy is an Import from the Extended Family, Abortion Conflict as Extended Family Conflict Transferred to the State, A Middle Way)

Senator Joel Seger of Minnesota (Democrat): I want to return to your–deconstruction–of equity jurisprudence.

Suzuki: Yes, Senator.

Seger: An unarticulated right has no value at all.

Suzuki: No.

Seger: Since the 10th Amendment specifies the States as the mechanism….

Suzuki: Or the People.

Seger: Er, yes. Well, I can’t see how the people of the United States can use a mechanism independent of the States. Seems a vacuous promise to me.

Suzuki: A clear thought.

Seger: Then you hold, must hold, I guess, that legislatures define rights.

Suzuki: No, Senator. A right is a peculiar thing. In a democracy, when most important, the active majority is either indifferent or hostile to its expression. We touched on this in Chairman Allred’s hypothetical on vouchers.

Seger: I remember. You had no answer then. Coupled with your critique on equity, you seem to have dug us into a pit of rights stasis. The “dead Constitution” of Justice Scalia.

Suzuki: No. I want to unearth potentiality. We would return to the ambiguity of the Founding.

Seger: That doesn’t sound like original intent to me.

Suzuki: Senator, I accept that rights formation has become groundless. I do not accept a single original intent. Those who assert otherwise are, in my view, as fanciful as their opponents.

Seger: But the deconstruction of present Constitutional jurisprudence relies on original intent.

Suzuki: I accept the intellectual anger behind original intent. I do not accept the tool used to implement that anger.

<pause>

Seger: Are you angry, Judge?

Suzuki: <pause> The value of anger lies in the pivot through which it vanishes. Understand: it is still there; I am not. I have found that the chasm of judicial conflict has so narrowed that its walls crush alternatives. It is only though alternative that destruction my be elided.

Seger: Elided? A musical metaphor.

Suzuki: Yes, my original intent.

Seger: I’m not sure we should be laughing. Laughter disarms.

Suzuki: I did not laugh. Perhaps “side-stepped” will do in a pinch.

Seger: “Side-stepped”?

Suzuki: An alternative which side-steps destruction.

Seger: Of the narrow chasm?

Suzuki: Yes.

Seger: Well–original intent. I’ve always thought our choice lay between original intent or the living, adapting Constitution.

Suzuki: No. Original intent theorists well recognize that law evolves. But they hold that, absent constitutional amendment, evolution–better perhaps would be development–is restricted to truly novel circumstance, untouched by past decision. Original intent is the first measure of the past; or, rather, the act of Founding restricts use of the past.

Seger: Help me out here, Judge.

Suzuki: Well, the common law, and pre-Independence British Parliamentary acts, are filtered through the act of Founding.

Seger: This is becoming rather arcane.

Suzuki: It gets worse. That’s what happens when you make your living at law.

Seger: Makes one wonder what Congress is.

Seger: Ok. Can we at least get to the question of original intent? What’s wrong with it?

Suzuki: Wrong? Foundationally–nothing. Without original intent personal conscience will rule.

Seger: Tell me again why that’s wrong.

Suzuki: If I could trust my conscience it would not be. But I have seen my conscience do terrible things.

<pause>

Seger: I’m not going to ask about that.

Suzuki: With respect, I would not answer.

Seger: Nor would I. So. Original intent is necessary but wrongly applied.

Suzuki: Not quite. As I have already testified, I believe there were multiple original intents. Examine Madison’s notes on the Constitutional Convention. The Constitution was more than compromise. Various wordings were inserted by various majorities–almost pell-mell, I would venture. The creation process invited ambiguity to achieve a series of ephemeral consensus votes; nor more so on the issues of rights and jurisprudence. The convention, at its end, decided to avoid the issue of rights entirely. It’s a strange sketch of a conversation Madison gives. I have it here.

Suzuki: First, Col. Mason of Virginia says he wished the Constitution drafted had been prefaced with a Bill of Rights, as is the Virginia constitution. Now Sherman of Connecticut says something strange: “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.” Later, Madison will discuss a Bill of Rights in the House of Representatives, pointing out that not all States have such a Bill. How can a State right affect the Federal government? And how can the citizen of a State without such right or articulated Bill employ, in a Federal setting, a right from another State having such a Bill? The role of a State constitutional right in Federal jurisdiction, at this point jurisdiction independent of the State where the Court resides, is quite opaque. At the end of the Constitutional Convention, the whole issue is shunted into Congressional determination of Federal court jurisdiction as mandated by Article III. Col. Mason hints at this in his end of Convention reply to Sherman: “The laws of the United States are to be paramont to State Bills of Rights.” So, Mason asks, where is the protection a right is supposed to provide? Congress seemingly, at that point, can do what it likes.

Sherman, mostly a Madison ally favoring strong federal government, seems to suggest State defined rights might percolate into Federal jurisprudence. Col. Mason is doubtful. He notes the Federal Supremacy Clause could override a State constitutional right. All States present vote against drafting a Federal Bill of Rights. The fundamental, overriding rhetoric of the Independence Era–the articulation and protection of rights–is overtly avoided. A strong Federal government with no real talk about rights.

Seger: The Bill of Rights made up for this.

Suzuki: Then what do the 9th and 10th Amendments mean–as applied, which is the only measurable meaning jurisprudence has? Senator, here is the 9th Amendment in its entirety:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Elegantly deceptive. It alludes to social contract language where rights are “voluntarily” abandoned to generate social goods. But rights are themselves socially defined. They are “retained” by the people. So they are prior to the Constitution and its Amendments, both historically and legally. The social processes defining rights are prior to the Constitution. Yet Madison’s Federalist rhetoric that “every right implies a remedy” is nowhere to be seen. The under-articulation present at the Constitutional Convention is present in the 9th and 10th Amendments as well.

Something is being avoided to insure ratification of both Constitution and, later, these Amendments. That unspoken something permits multiple original intents. We might assert there is no relevant prior social process–which appears the de facto position of those advocating present day original intent. Or we might bicker over what that prior social process was, whether an analog exists today, and whether it can be legitimately incorporated into jurisprudence.

Seger: Legitimately incorporated?

Suzuki: Whether constitutional language exists enabling the incorporation.

Seger: <pause> I’m not getting all this, Judge Suzuki. In fact, after watching your past performances, I’m not certain I’m supposed to get it all. You seem to be saying that although you have dug us into a pit of stasis, self-deceit in 1787 and thereabouts, or mutually mis-understood babble at that time, has created the happy accident of multiple original intent, which will somehow pull us out of said pit. I think.

Suzuki: Well, yes. Sort of.

Seger: Very precise, Judge Suzuki, very precise. Wait. Let me take a lesson from our Chairman. Precision awaits nine minds.

Suzuki: What I can assert, Senator, is that evidence for multiple intent at the time is plentiful. Consider the debate on ratification. Some supporters gave speeches that live worlds apart from other supporting speeches. Consider Alexander Hamilton, who defended in the Federalist what he thought a failure in private.

Seger: That is politics. That is human.

Suzuki: Yes. The same process operates in your own Chamber, Senator. I think it quite possible that one may vote for a bill when one party holds the Presidency but not otherwise. Executive implementation has great scope, so the bill becomes colored by its inferred future implementation. The Federal government, as yet unformed in 1786 and 87, amplifies such ambiguity tremendously across all three branches. A federal republic with an independent judiciary had never been. Frankly, I believe even Clause based convention votes provide limited evidence of a single original intent.

Seger: Are we left adrift on an ocean of relativism? Not much different than the conscience of the Court you so abhor.

Suzuki: Not adrift. The text exists. It employs phrases used before it, and after. That grounds the measure of intent. But not a single intent. Indeed, adding a phrase or clause may redirect or even exclude prior intents in the document. And certainly the process of constitutional amendment compounds the effect enormously.

Seger: So the original intent theorists have produced a myth?

Suzuki: Yes. But I must stress that choice of some myth is unavoidable; what can be avoided is the unique assertion of a myth.

Seger: You know, Judge, I believe you’re not going to tell me how this, er, original pluralism will change anything.

Suzuki: Oh no, Senator. I couldn’t do that. The doctrine of nine minds and such.

Seger: Then at least tell me how this view is better than personal conscience. Why not just pick Justices with greater breadth of humanity?

Suzuki: Senator, I am resolved that may own personal justice would be monstrous for some. This is the ontological cost of individualism. If empathy leaps me to others, then it also tells me that some will abhor my beliefs.

Seger: <pause> You would empathize with the pedophile, with the Nazi?

Suzuki: I would not deny the revulsion they may feel toward me. If you are asking if I hold absolutes, the answer is yes. But I cannot say my set of absolutes has remained constant throughout my life. This is perhaps our greatest warning against the majesty of personal conscience. I also know that my potential judicial colleagues have held opinions different from mine. I will have to work with them.

<pause>

Senator, I hold that only by embracing conclusions at variance with my personal views may a process of consensus on the Court be maintained. The measure of constitutional thought consists in being forced to do so; while I must affirm, I may beg for change. Personal conscience will not do this; indeed, it must not. The heyday of personal conscience equity has left us hating one another. This is probably in some sense unavoidable. But perhaps the enduring nature of our polarization can be ameliorated. Perhaps our hatreds can move about, a jigsaw of life where the pieces blessedly never fit overlong. That may be my constitutional faith.

Seger: Judge, I have no idea how you could do that.

Suzuki: I’m rather vague on it myself.

Seger: Do you want to be confirmed, Judge?

Suzuki: People keep asking me that.

Seger: Judge?

Suzuki: I would not be here otherwise.

Seger: Judge, you are asking me to abandon a woman’s right to choose for a process with no predictable result at all.

Suzuki: No, Senator. I am saying that I believe the right of abortion to be ungrounded presently. I have not said there is or is not such a right. A right is created through process. Jurisprudence considers claimed right through its process.

Seger: Rights are created? They are not inherent?

Suzuki: Again, as Madison says in the Federalist, a right without remedy is no right. Well, actually I think he said for every right there must be a remedy; but the operational sense is identical. The bench hears claims of right placed before it; whether the claim is sustained is a matter of judicial process. One might say that a claim which recurs before the bench is “inherent”; but that is really a theory about why the claim keeps appearing. Sustaining the claim is not, in the first instance, a matter of causual genesis. Rather, causal genesis is imported into the text through constitutional amendment.

Seger: You would leave us barren of advance without the laborious process of constitutional amendment.

Suzuki: Perhaps not. If there are multiple original intents, contention over which to implement might change the field of rights.

Seger: Might. Again, Judge Suzuki, you ask me to abandon what is in hand for unarticulated possibility.

Suzuki: For potentiality. Senator, I would ask this: how much longer do you think your hands will be able to grasp this thing?

<pause>

Seger: You are saying the choice is not of loss or victory, but of how one will lose.

Suzuki: Perhaps progress is mostly about the considered choice of loss.

Seger: <pause> Well, I guess that’s all. Thank you for your candor, Judge Suzuki.

Suzuki: I want to be confirmed.

Chairman Roy Allred of Montana (Republican): Senator Werren of Vermont.

Senator Jon Werren of Vermont (Democrat): I want people to know what you are, Judge. I want people to know what they’re going to get.

Suzuki: Laudable. But it is not clear to me that is what people want. This body sits in a moment of decision which will outlive it. If you ask a mind to stay fixed in your evaluation you will have no one of use on the Court. We face each other knowing that the day after confirmation you may have asked the wrong question, I may have answered the wrong questions. Or I may have answered the right questions wrongly–and so have been confirmed. You place a mind where it should not be, but must be. Nuance is the only protection left to us–perhaps protection form ourselves.

<pause>

Werren: Judge, are you familiar with Plyer v. Doe, 457 US 202, of the year 1982?

Suzuki: Not offhand.

Werren: A bit surprising, Judge, as it is a foundational case in education. Texas denied state funds for the education of illegal alien children; additionally, local school districts could deny enrollment to such children with State sanction. The Court voided this law, 6-3.

Suzuki: Yes, I recall now.

Werren: A decade before, the Court had ruled in a closely decided opinion that there was no fundamental Federal Constitutional right to an education.

Suzuki: Yes, in San Antonio.

Werren: Justice Brennan had been in the minority then. In Plyer he wrote the opinion of the Court. I am going to read from that opinion and ask you to apply your–exacting–typology of constitutional reasoning to it.

Suzuki: Yes, Senator.

Werren: Brennan says:

[E]ducation [is not] a fundamental right; a State need not justify by compelling necessity every variation in the manner in which education is provided to its population. But more is involved in these cases than the abstract question whether the [Texas statute] discriminates against a suspect class, or whether education is a fundamental right. {The statute} imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining the rationality of [this statute], we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, [this] discrimination … can hardly be considered rational unless it furthers some substantial goal of the State.

At opinion’s end, he reiterates:

It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuating of a subclass of illiterates within our boundaries. … If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that if furthers some substantial State interest.

Judge Suzuki, would you sign on to Justice Brennan’s opinion?

Suzuki: You know I could not.

Werren: Listen to what your getting, people. Why not, Judge?

Suzuki: It hides the formation of a right under the guise of equal protection. The operative phrases are “the stigma of illiteracy” and “the ability to live within the structure of our civic institutions.” Both phrases are factually correct or at least highly plausible. The Texas statute targets illegal aliens and their extra-territorial children. Brennan cites no mechanism producing a Constitutional right against “the stigma of illiteracy” for citizens, let alone illegal aliens. What would Brennan do if a State removed mandatory public education from its constitution, then proceeded to eliminate public schools? A stigma of illiteracy would result, consequent of limited income. Under San Antonio, nothing prevents this but the political system.

Werren: Brennan would then say there is no equal protection issue.

Suzuki: Equal protection is based on a measure across classes. The measure must have standing on its own and be importable into the analysis. The example of eliminating public schools entirely shows there is no such measure here.

Werren: He certainly asserts a measure–and it is most plausible, in my view.

Suzuki: He does. It is an equity measure–“to deny a discrete group of innocent children the free public education that it offers other children…” This is judicial rights formation in the context of equity.

Werren: Are you saying that equal protection always requires a priorly articulated right as, what you say, “an equity measure?”

Suzuki: No, Senator. I would not reverse Brown v Board of Education. When a law denies benefit to a similarly situated class without rational basis, equal protection has been violated. But I would hold, with the late Justice Stevens, that equal protection is a matter of individual access; class based analysis is an artifact of a law’s operation–in Brown, Jim Crow laws created the excluded class. In that case I think it clear that a class was created which had significantly less educational opportunity. This is an empirical matter of the day. If segregated students had been doing quite well, Brown, in my view, should have failed.

Werren: But denail of opportunity is exactly what Justice Brennan evokes in Plyer.

Suzuki: Yes. But this class is not of citizens. They should not be here. If the INS captures a resident illegal alien parent, we do not forbid deportation because a child will be denied an education.

Werren: In that case the child, also deported, does not contribute to a class of illiterates in this country.

Suzuki: Which shows, Senator, how weak Brennan’s equity measure really is. It is not the child which is important but a class of children. If we can avoid the class, the plight of the child is of no concern.

Werren: Are you saying the plight of the child–the equity measure–is not essential to Plyer’s conclusion?

Suzuki: Yes, I think so. At bottom, the Court says, “Stupid State. You are going to make your problem worse.” Although I think this correct, it is not a reason for voiding a law. A State might plausibly suppose that some potential illegals will refrain from migrating if they knew their accompanying children will be denied access to public schools; or, at least that their children are fair game in the illegal alien hunt. I do not like this policy and think it would fail; but the solution is to let the political process overturn policy.

Werren: A high price to overturn policy.

Suzuki: Yes.

Werren: A price you, personally wouldn’t have to pay. So you would side with the Plyer dissent.

Suzuki: <pause> Perhaps not.

Werren: You just said that political process was the only option. Give me a real answer, Suzuki.

Suzuki: I mispoke, somewhat. I should have said under present jurisprudence political process is the only option. A concurrence in judgement might be possible in Plyer.

Werren: How so?

Suzuki: I will not say.

Werren: Sir?

Suzuki: Senator, if I am confirmed, I will have but few tools. I cannot reveal those few here. I must do so in the context of the minds I must encounter. I must know what to say; what to refrain from saying; what to capitulate, and how. Arrogance is not my shield in this room; but I will not go powerless into Chambers. All I can say is I would consider a judgement in outcome in Plyer, based on much of the language Brennan employed.

<Werren pauses, sits back in his chair, staring at Suzuki. The silence is prolonged;

scattered nervous coughs begin in the audience>

Werren: I trust you have no trouble recalling Griswold v Connecticut, 381 US 479, of 1965?

Suzuki: No, Senator. That decision, in its rationally righteous repugnancy of a sexual statute, has birthed our present impass.

Werren: It’s your impass, Judge, not mine. You accept that denying Roe v Wade means denying Griswold as well?

Suzuki: That depends on the grounds of denial. Roe is harder privacy than Griswold, the latter merely allowing contraceptives. But if the method of rights articulation is denied in Roe, so too is it denied in Griswold. And, indeed, I deny the method in both.

Werren: You would deny us contraceptives.

Suzuki: That’s a bit silly, Senator, with respect. The Connecticut statute in Griswold was passed in, let’s see, 1879. I rather doubt all those voting for it were aloof from realized contraception and abortion of the day. No State today will deny contraceptives. I suspect many pro-lifers would not, either. The question, of course, is whether the Court in Griswold articulated a valid Federal right. I believe it did not. This does not mean I abhor contraceptives. And you know that, I think.

Werren: In previous testimony before this Committee you claimed the 9th Amendment had never been adjudicated by the Court. But the Griswold Court explicitly employs it, doesn’t it?

Suzuki: You caught me unprepared with Plyer, Senator, but anyone who repudiates Roe on method knows Griswold will come forward. Justice Douglas’ opinion of the Court quotes the 9th Amendment without employing it. We are to comprehend it role via its non-use, I guess. Justices Goldberg, Warren, and Brennan join a concurrence which does employ the 9th Amendment. But three of the six majority Justices refrain from endorsing it.

<pause> Well, what I said about Justice Douglas’ non-use of the 9th isn’t quite fair–but only by a little. I abstracted this case, suspecting it would come up. May I read a bit of it?

Werren: Indeed.

Suzuki: After citing several cases employing the word “privacy” in the context of the First, Third, Fourth, and Fifth Amendments, Justice Douglas says:

The present case concerns a relationship lying within the zone of privacy created by several fundamental Constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

Privacy, he says, is the nexus of these Amendments. Perhaps autonomy would be a better attribute. But there is certainly a sense in which he is correct. He then goes on to invoke, unsaid, the principle of latent rights embodied in the 9th Amendment:

We deal with a right of privacy older than the Bill of Rights–older than our political parties, older than our school systems. Marriage is a coming together for better or worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony of living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet is is an association for as noble a purpose as any involved in our prior decisions.

For Justice Douglas, the nexus of delineated rights becomes the measure of an unarticulated right which, presumably, undergoes judicial notice through the 9th Amendment.

Werren: And this is monstrous because….?

Suzuki: Because untrue. The description of marriage as insulated from civil life prior to the Bill of Rights is false. The law regulated inheritance, separation, and legal standing in England anciently. Primogeniture, which directed inheritance to the first born male, affected parental investment and reproduction. Whether it appeared midway in the common law or early isn’t important. Nor does it matter that the presumption of primogeniture was abolished in several States during Independence. Since the Bill of Rights was derived mostly from British antecedents, this would imply familial autonomy is younger than the nexus of rights Justice Douglas uses to identify it.

Nor can we escape by moving to sexual matters proper. Adultery by a man was treated differently than adultery by a woman. Spousal rape did not exist in law, nor overmuch, I suspect, in extended familial policing. How then can we speak of an intimate association of delicate contract? This state is highly derived, still being shaped today.

I do not disdain Justice Douglas’ sentiment. But his method for articulating privacy employs historically false statements. Justice Goldberg’s concurrence is even more mythic. I quote:

Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family–a relation as old and as fundamental as our entire civilization–surely does not show that the government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the government though not specifically mentioned in the Constitution.

Again, this “relation as old and as fundamental as our entire civilization” has anciently undergone tortuous interventions by State and quasi-State entities. What we now see as the nuclear family is partly a result of such intervention. The nuclear family is only recently an autonomous atom of society. Worse, the Tenth Amendment explicitly says powers neither denied to the States nor delegated to the United States are reserved to the States or people. Connecticut can do what it has done absent a new articulated right. Neither Justices Douglas nor Goldberg succeed in their methodology–on their own terms.

Werren: <pause> Do I face Shiva, the destroyer of worlds?

Suzuki: Shiva comes. I would feign an avatar of Vishnu the preserver.

Werren: I am no authority, but are they not aspects of the one absolute?

Suzuki: Yes. A good point you make. I do not set before you to destroy in terminus. The annulled voucher opinion was not simply a swath of destruction.

Werren: No, it wasn’t. But you offer no positive result against a defeated Griswold. Consider how Justice Douglas framed the opinion of the Court. He notes several prior cases framed rights not directly derived from the first eight Amendments in the Bill of Rights. Two stand out as likely razed by your logic. Let’s see. In 1925 Pierce v Society of Sisters affirmed a parental right to educate one’s children in private school. Just before, in 1923, Meyer v Nebraska affirmed a parental right to teach or choose schools for their children where languages other than English were part of the curriculum. As conservatives never tire saying, education is never mentioned in the Constitution. I have a quote from Meyer. Justice McReynolds, writing for a 7-2 majority, says liberty includes the right

to contract, to engage in …common occupations, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of [one’s] own conscience, and generally to enjoy privileges, essential to the orderly pursuit of happiness by free men.

We seem to have the so-called O’Connor Juncture liberty interest fully birthed in 1923. Is old, dead Justice McReynolds so awful wrong, Judge Suzuki?

Suzuki: Well framed, Senator. In substance, Griswold is not contentious in itself. Few will go to the trenches to ban contraceptives. And neither Pierce nor Meyer are now affronts. It is Roe which haunts. It is Roe which for decades contorts our politics and jurisprudence in mutually exclusive righteousness. Something in American social process has nurtured dissent over Roe. It is not the judicial creation of rights which has caused the present impasse; witness Pierce and Meyer. It is the specific right chosen by the Court.

Werren: This had to happen sooner or later. You yourself say rights are often a minority phenomenon at inception. But you avoid my question. What would you do with Justice McReynolds’ liberty list?

Suzuki: If we void Roe on methodology, we void Griswold, as Griswold articulates, with some slight of hand, that methodology. If we void Griswold we void Pierce and Meyer. The crisis will deepen.

Werren: You would still void Roe?

Suzuki: So I have said.

Werren: Webster v Reproductive Health Service makes no difference? Planned Parenthood v Casey makes no difference?

Suzuki: No. These cases reduce abortion from an absolute, uncurtailed right to a liberty interest which may be regulated but not abolished. The methodology of Griswold is retained.

Werren: You would vote to create havoc. Not some havoc prophesied by some Isaiah, but a havoc you yourself create.

Suzuki: I would tell the Bench havoc is upon us.

Werren: You would not save us from this havoc by affirming Roe and its progeny?

Suzuki: It cannot be done. Havoc will come.

Werren: Suzuki, I am a Democrat. I believe–I know–that if you hit people long enough they will reply. You think you can pop worlds like balloons? Think some more.

Suzuki: Worlds cannot be denied overlong–I know this, Senator. It is also a founding principle of the Republican Party in 1858. And it is a principle rediscovered in the present Congressional Republican majorities. Jurisprudence is no hand of God gifting and crushing on its own terms. I know it has felt otherwise for some for a generation or more. Jurisprudence is the product of the terrible difference of worlds. It is battle over summed lives. Many lives are vanquished unheard, vanquished unseen.

Werren: So what. You haven’t told me what you will do, only what you will destroy. You hide behind poetics and then evoke the mysterious future of nine minds.

Suzuki: I must. But I can say this: Jurisprudence must recognize that on pivotal occasions it creates its own rebellion. Jurisprudence must prepare for this. This is the lesson of Roe and its dissent. <pause> Senator, if Roe’s progeny are overturned, do you expect a pro-choice movement?

Werren: Assuredly.

Suzuki: Then what has changed?

Werren: Ask a woman that. <pause> You ask much in trust.

Suzuki: I would ask much of my colleagues.

Werren: I do not think we can abide such trust, in either place.

Suzuki: Such trust in bondage on any Supreme Court, else –

<pause>

Werren: Havoc?

Suzuki: Yes. As now.

Werren: Is there no residue you would purchase from Griswold?

Suzuki: The crisis upon us is very real, Senator. We must either lie greatly to ourselves or cobble ourselves with words not ours. I think Griswold of value in toto–majority and dissents. That I reject Griswold does not mean I reject the merit behind the majority’s effort. It is the method which fails. <pause> Justice Black’s Griswold dissent shows us why. If I may quote?

Werren: Proceed.

Suzuki: He says:

My Brother Goldberg has adopted the recent discovery that the Ninth Amendment as well as the Due Process Clause [of the 14th Amendment] can be used by this Court as authority to strike down all State legislation which this Court thinks violates “fundamental principles of liberty and justice” or is contrary to the “traditions and [collective] conscience of the people.” He also states, without proof satisfactory to me, that in making decisions on this basis judges will not consider “their personal and private notions.” One may ask how they can avoid considering them …and the scientific miracles of this age have not yet produced a gadget which the Court can use to determine what traditions are rooted in the conscience of our people.

Senator, what I find remarkable is that both Justices Goldberg and Black are off the mark. The collective conscience of a community has nothing to do with determining a right. Both Justices are arguing past the Ninth Amendment. That a right is retained by the people does not imply it is approved by the people as a whole; otherwise we could leave legislatures unguarded. The problem of rights formation is deeper than Griswold paints. Douglas’ Opinion of the Court finds an ancient right of marital privacy. Douglas is, in the eyes of some, most unpleasantly clever. He finds a privacy nexus within the Bill of Rights and applies it to the sanctity of marriage–even though, by his own logic, marital privacy is free standing. He really doesn’t need the privacy nexus. While many approve application of the moment, the privacy nexus is more generalized. He avoids using the Ninth to identify marital privacy to have a greater weapon for later use. Privacy becomes dislodged from the judicial slight of hand giving it birth. It will lead to Roe v Wade and Lawrence v Texas.

Werren: Abortion and sodomy. Two horrors of our day for the Republican Party.

Suzuki: Senator, it is neither my place to condemn nor affirm either of these.

Werren: What is your place, Suzuki? To take away people’s lives with a great heart, saying you wish there was something you could do, but cannot? I believe the grand Justice Scalia has said something like that.

Suzuki: My place, self-appointed I know, is to have us recognize what we have done. We cannot find a way out if we don’t know where we are.

Werren: “We”?

Suzuki: Our prior Courts, which we inherit. The hodgepodge of judicial opinion which we call jurisprudence. <pause> As I said, I came prepared for Griswold. I have another abstract.

Werren: From Griswold?

Suzuki: No. From the Court’s earlier look at the Connecticut statute.

Werren: Go ahead. You will anyway.

Suzuki: Four years before Griswold, the Court–a different Court–dismissed an appeal on the same contraceptive ban in Poe v Ullman. Four Justices dissented from the denial of hearing, one of them being the second Justice Harlan, who signed onto Griswold four years later. His Poe dissent shows, I think, how ungrounded the judicial creation of rights is. He says:

Adultery, homosexuality, and the like are sexual intimacies which the State forbids altogether, but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.

[E]ven though the State has determined that the use of contraceptives is as iniquitous as any act of extra-marital sexual immorality, the intrusion of the whole machinery of the criminal law into the very heart of marital privacy, requiring husband and wife to render account before a criminal tribunal of their uses of intimacy, is surely a very different thing indeed from punishing those who established intimacies which the law has always forbidden and which can have no claim to social protection. [367 U.S. 497, 553]

Here, Senator, we have Justice Harlan espousing a right of marital privacy distinct from adultery and homosexuality. Again, protecting the “uses of intimacy” invites abstraction as a free standing right. As so in Lawrence v Texas.

Werren: So what, Suzuki, so what. To claim a right frozen at its first articulation would be a tyranny.

Suzuki: I agree. More reason to remove the responsibility of first articulation from judges.

Werren: You’re nominated for Chief Justice of the Supreme Court, not some academic post where commentary is painlessly shelved aside.

Suzuki: I believe Chairman Allred made a similar observation. It’s nice to know that some sentiments cross the aisle.

Werren: You’re painting yourself into a corner, Suzuki.

Suzuki: My intent. May I complete the job?

<pause>

Werren: Maybe you’re not the one going into that corner. Wait. Not the only one.

Werren: Continue Judge. Please.

Suzuki: Justice Harlan’s Poe dissent asserts marriage is prior to all statute–at least that is what I would infer from the phrase “the State not only must allow [marriage] but [has] always and in every age…fostered and protected [it].” I have already said that the State’s intervention in marriage has been far from protective at times. His case is too strong; he asserts a myth. Nor is it true that extra-marital sexuality, or offspring thereof, were condemned. Marriage was a special status within a class of admitted sexual relations–admitted because practiced–a special status as much a demand of the political/social community as desired by the couple. Certainly at times the wife was not the husband’s favorite, chosen or imposed for social reasons beyond any intimacy. Intimacy was not the defining characteristic of marriage. Nor is it true that the State–or Church–did not delve into the intimacy of marriage. Proof of conjugal relationship could require–exacting–testimony when challenged. Justice Harlan has painted a marriage we ourselves want, not marriage that was.

But I venture there is a way to reach marriage prior to statute under the Fourteenth Amendment. Allow the Due Process Clause to be a selective retention of the common law, applicable to the States.

Werren: What? I am awake! I knew there was a reason I asked for this committee assignment–other than having hands bruised in perpetual dissent, that is. You have eviscerated 14th Amendment Due Process so far. Now you would give it new content?

Suzuki: Well, this is the first time it has come up.

Werren: I pegged you for one who holds “due process” refers only to legal form, not to substance of law.

Suzuki: Equal protection does that, Senator. If I am arrested under a law but denied treatment specified by that law and others, I have been denied equal protection. A blanket denial of treatment to all would evoke the Due Process Clause as form, but such denial has probably never happened.

Werren: Could it not be an added assurity to the Equal Protection Clause? I can’t believe I’m asking this.

Suzuki: Senator, I think we must have a principle of forced meaning in constitutional construction.

Werren: “Forced meaning?”

Suzuki: The connected clauses of Section 1 of the Fourteenth Amendment read:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Werren: Although I trespass some saying this, these words, purely secular, have had as much import as the Sermon on the Mount this last century.

Suzuki: I agree. The three clauses are linked as a compound sentence. It might be that the Due Process Clause is a redundancy for emphasis with equal protection. But semicolon conjunction is not a usual way of creating redundancy. I would say respect for a constitution’s authors requires we find some mutually exclusive content for distinct phrases. This is really nothing more than a dictum of the first Justice Marshal. As I have already noted, an immediate consequence of this interpretative rule is that, apart from a blanket refusal to enforce or honor law, due process cannot apply to form alone; equal protection does that job, and more.

Werren: I am enjoying this. Whose side are you on, Suzuki?

Suzuki: I have been trying to tell all of you there is no side.

Werren: Go on, Judge.

Suzuki: The compound sentence of Section 1 prohibits the States from abridging immunities of a citizen of the United States; these include rights of a US citizen–a right is an immunity. So the Due Process Clause cannot import rights. Substantive due process and liberty interests are dead. A liberty interest is just a right susceptible to balance by the rights of others or State interest. Due process is not machinery for the creation of rights. The three clauses stand co-equally; one does not create material for another. Nor does due process guarantee procedural form most of the time–as said, equal protection does that.

The potential content space has been whittled away, mostly. What’s left? It must be something of the same general protective character as the other two clauses–rights and equal applicability. The Due Process Clause is lifted just about verbatim from the Fifth Amendment. There the clause is sandwiched between limitations on Federal prosecution and eminent domain. And there I think it clearly refers, in large part, to processual guarantee. The clause is transformed once placed adjacent to equal protection in the Fourteenth Amendment, stripped of most process as form. But an important part of legal process remains: common law writs against the State where life, liberty, or property are at issue. Since the State enforces the outcome of civil suit, the scope of the clause is quite large, I think. It imports common law against the State.

Werren: The Court early held there was no Federal criminal common law. A Federal crime must be defined by statute.

Suzuki: The clause imports not criminal common law, but common law writ against the enforcement of statute. Habeas corpus is such a writ.

I think the Due Process Clause rather weak, procedurally, as it requires complete denial of law to become applicable. But it attaches common law writ to the States in perpetuity. This is non-trivial, and not incompatible with Civil War’s end.

Werren: And due process in the Fifth Amendment?

Suzuki: Federal statute was nascent. The Federal judiciary untried. The protection of available common law writ, determining grievance when placed before judge or jury, would be powerful. Such writ was a major form of law up to the Founding; it would not be abandoned in a day or decade. The Fifth to Seventh Amendments, in my view, establish the common law as irreversible backdrop to statute.

Werren: Are you saying statute may not supplant the common law?

Suzuki: Foundationally, it can not. Statute can provide alternative process and require it as first use, but the equivalent of common law relief must be at hand; statute may provide more relief, but not less. And whether or not an equivalent is provided by statute should be adjudicative.

Werren: What have I unearthed! You would deny substantive due process and liberty interests, leaving us without a method of rights articulation, but would expand common law proceedings, or at least their potentiality, in both State and Federal Courts. It’s so retrograde as to provide novel process.

Suzuki: Well, you did bring up Griswold.

Werren: How many times do you think people have switched sides on you?

Werren: I know, there are no sides. This latest revelation began with marriage privacy. You said Justice Harlan could be sustained in judgement, but not on due process liberty rationale. How so?

Suzuki: Perhaps sustained. Harlan and Douglas are right that marriage is ancient in law; but they are wrong in thinking marriage privacy ancient. Marriage is ancient at common law. I can see Fourteenth Amendment Due Process reaching the Connecticut contraception law.

Werren: Using what writ?

Suzuki: Oh. I have no idea.

Maybe trespass? Well, I suspect some lawyer would search until something fit. Gives a whole new speciality.

Werren: Trespass! <pause> Ok. I got the writ. Why should you rule as Griswold?

Suzuki: The common law evolves with circumstance. While marriage privacy is not ancient, it may have become an essential facet of modern marriage, supported by statute in various ways. The common law changes incrementally through the judiciary. I can see a judge ruling that privacy, supported by statutes, is now essential to marriage in an autonomous nuclear family society; perhaps he would make that finding from the privacy a doctor enjoys with a family. Justices Douglas’ and Harlan’s finding that the criminalization of bedroom activity, meaningful only if bedroom evidence is possible, violates such evolved privacy. But lower courts should make this determination in the first instance. I would favor remanding the case to district or county court with instructions to consider the common law merits of a privacy defense.

Werren: And if that failed?

Suzuki: Action would depend on the lower court opinion. The opinion may have enough merit to deny appeal; even so, future challenges might reverse the outcome. I stress that overseeing courts, refusing to reverse an absence of common law relief, are not prohibiting similar future appeals. The common law evolves fitfully. A finding of privacy in a lower court does not bind other lower courts. Eventually higher courts would have to declare a change in background common law, once some lower courts have affirmed its presence.

Werren: By “higher court” you include the United States Supreme Court?

Suzuki: It is not impossible. But only if lower courts are in conflict.

Werren: You would grant Federal courts common law power over State courts?

Suzuki: It is the only way to monitor due process access to writs. State appellate courts might deny writ in outcome; this would violate the Due Process Clause…

Werren: Or Equal Protection.

Suzuki: If the denial is not consistent, yes. To some degree writs change with the times. To deny a writ may be legitimate policing of the writ, or it may be due process denied. Generally, turbulence in State common law should be indicated by variant decision among courts of the first instance. But it is not inconceivable that these courts and their guardians might uniformly deny writ in outcome, requiring Federal intervention without evidence of turbulence from below.

Werren: By Federal intervention you mean the Supreme Court?

Suzuki: Essentially.

Werren: You would have a Federal court, not versed in State common law, decide such law.

Suzuki: Not usually in the first instance, and reluctantly when so. I would remand to lower State courts whenever feasible–not to the State appellate court, but to courts of the first instance. Try to stir the waters, make some turbulence.

Werren: I hope the other aisle are getting uneasy in their seats. This is not judicial federalism.

Suzuki: The Civil War reforged federalism. But federalism remains in that the States are the genesis of common law alterations.

Werren: As far as I know, this view of 14th Amendment Due Process has never held sway in a higher court.

Suzuki: No.

Werren: Let’s suppose your version of due process. Suppose the Court has seen fit to declare a common law alteration. That common law is perforce State common law?

Suzuki: Under the 14th Amendment, yes. But I would not exclude initiating writ in Federal court under 5th Amendment due process.

Werren: One disaster at a time, Judge. So, the Supreme Court has altered or created a State common law rule. Does it apply to all the States?

Suzuki: Ah. A perceptive question. I would say no. Each State has its own common law, evolving independently. Other States may achieve the result of the Court by other means. Or other States might apply statute to the same effect. Federalism has mutated, not expired in toto.

Werren: But the Court, if so acting in one State, has created a right in principle?

Suzuki: Yes. It would have articulated a common law right under 14th Amendment Due Process.

Werren: And this differs from Justice Harlan and substantive due process by….?

Suzuki: The right is contingent on prior common law; it does not arise in the abstract. And it is channeled by the common law stream in which it emerges. I cannot see how common law marriage privacy is mutable to protected abortion. Marriage circumscribes the right.

Werren: What about abortion in a marriage? Abortion is an intimate decision, and disallowing a wanted abortion could dislocate a marriage.

Suzuki: Yes. It could destroy a marriage. But the dynamic of common law determination would be different. I can only conjecture. Circumscribed by marriage, the wishes of both husband and wife would have similar weight. Once the child is conceived, a veto against abortion by either party might be the common law outcome.

Werren: So a State ban on abortion might be annulled upon mutual consent of husband and wife?

Suzuki: I do not know. I can only say the dynamics of decision will be different. Marriage privacy is of a couple, not individual. The autonomy of the individual driving Roe is missing. The unborn might be given more weight.

Werren: If marriage autonomy subsumes contraception as a tool of reproductive decision, so too should it subsume abortion.

Suzuki: A trick of the law is at play. Both Justices Douglas and Harlan in Griswold say it is the enforcement of a contraceptive use ban which violates marital privacy. State search would violate multiple privacies; could, through fear, jeopardize the growth of trust and confidence by denying those moments of unprotected offering which transport beyond calculation, beyond ruthlessness. It is not that the invasion will reveal collateral illegality. This is not necessary. It is privacy itself which faces the social world as shield. The intrusion produces fear and uncertainty beyond itself. A rape whose effects are not limited to the culprit. This is what Griswold forbids.

But abortion, if safe, is a public act.

Werren: A point lost on deaf ears.

Suzuki: At this point all ears are numb. But, yes, it is a point to be pondered. Worth pondering in detail. To return: abortion, when a public act, does not violate collateral privacy. The core rationale of Griswold fails.

Werren: Are you trying to tell me that refusing an abortion–even to a willing married couple–will not, ever, destroy their marriage, while a child born later might fare all well.

Suzuki: Certainly not. I have no doubt what you say can and does happen. But this is an externality which does not violate marital privacy as such. Many State acts influence a marriage, better or worse, without encroaching on marital privacy. One can imagine marriage as a State sanctioned contract where abortion is disallowed.

Werren: You believe this as law?

Suzuki: I am saying that the Griswold marital privacy rationale, when transformed from an individual right to a common law marriage right, does not reach protected abortion. Another route, if possible, would have to be found. I reiterate that I speak neither for nor against abortion. We need a constitutional jurisprudence outside of, but not detached from, our views of right and wrong.

Werren: I’m not certain what that last sentence means.

Suzuki: Me too. Shows the esoteric nature of jurisprudence.

Werren: No one’s laughing.

Suzuki: No.

Werren: What of privacy clauses in State constitutions? Do they reach abortion? Or are you saying privacy cannot reach abortion?

Suzuki: I do not know. Such privacy clauses will be adjudicated uniquely in State courts.

Werren: <pause> Some claim the Fifth Amendment’s due process clause bars abortion.

Suzuki: In my view, not. Yes, the Due Process Clause there says no person shall be denied life or liberty without due process. But the common law has never considered the fetus as a person. The fetus was chattel. A wrongful death might be claimed; but in modern life the mother owns the fetus.

Werren: Are you sure?

Suzuki: No.

Suzuki: If a claim is made by the biological father, it is a due process claim on property, not on a person. At best a jury would decide. Those who argue for similarity between abolition and a ban on abortion fail on this point of law. Some antebellum southern States tried a slave in his own right.

Werren: Without juror slaves.

Suzuki: No. But responsibility is assigned to the slave for his actions. This partially indemnifies the owner; all he loses is his slave, forever or some lesser time, absent master negligence. But the indemnity breaches the boundary between chattel and person.

Werren: A complete breech?

Suzuki: No. Slaves could not be jurors, as you note. They were tried as very smart chattel. Pressed, one could say the owner was defendant; he could provide counsel. But a fetus has no autonomy. There is no chattel/person breach with a fetus.

Senator Mary Talbot of Nebraska (Republican), interrupting: A new born has no autonomy either but is a citizen and person under the Fourteenth Amendment.

Chairman Allred of Montana (Republican): Your out of order, Senator. You will have your time.

Suzuki: I can respond.

Werren: Glad to see the other side getting worried. Go ahead, Judge.

Suzuki: The 14th Amendment is a break with prior common and statutory law. That is the purpose of a constitutional amendment. Senator Talbot is right that the Amendment is somewhat inconsistent on this point. A newborn infant is a citizen and therefore at least sometimes a person in law, but it lacks autonomy associated with personhood.

Werren: The severely retarded lack autonomy but are treated as persons–at times–in the law.

Suzuki: Yes. Local community used to determine the–fluctuating–rights of such persons, from new born infant, young child, to retarded. In the case of children, the extended family was the agency. Parental rights could be overruled by that family–family consisting of both sexes, I think; half the human race is not going to refrain from contention over social control just because they are denied standing in the courts. Didn’t stop slaves, either. In the case of the unborn, the extended family often intervened–both to protect and abort.

Chairman Allred: And the father.

Werren: Mr. Chairman, are you going to reprimand yourself?

Allred: Go ahead. That’s all you get, Senator.

Suzuki: Yes, and the father. Both to abort and not. I believe part of the contention over abortion is derivative of emotions of the extended family–a generalization of these emotions. The Fourteenth Amendment enters this emotional fray unintentionally. Citizenship at birth was simply a way of removing State control over citizenship, ending the ambiguous status of emancipated slaves; and securing Federal citizenship independently from the States removed any legitimacy concerning future secession. I suspect few thought it could interfere with local control of reproduction.

Werren: “local control of reproduction”: forcing pregnancy to term?

Suzuki: Often so. But the medical gambles differed then. The rise of modern mobility and the autonomous working woman fractured familial control. With this came greater State intervention in childhood, most notably in mandatory public education. The child became an abstract person, worthy of protection. The autonomy of the child was not at issue: person and autonomy began to disassociate in law. Public education accelerated loss of the extended family as schools provided reliable daily oversight of children; non-nuclear family drifted apart, less needed, the healing of breaks become less compelling. The emotions of greater familial control transmuted to community stability, including abortion bans. But this transfer of familial control to the State is associated with, actually partly enabled by, increasing female autonomy in work and so life. The clash originally in extended families becomes a battle over rights in the courts. The law is asked to provide tranquility never overlong manifest within extended families.

Werren: You’re a different kind of judge, Suzuki.

Werren: I have no idea where this goes.

Suzuki: It is not surprising the dilemma of abortion endures. Extended families never solved it long, it or lesser issues of sexual control. Our society has evolved an abstract extended family in politics, where the woman says she doesn’t need the family at all; the family disagrees.

Talbot: What of the unborn life?

Chairman Allred: Now Mary, you’ll have your say.

Suzuki: Mr. Chairman, Senators, I understand that my analysis seems to belittle the living fetus. The fetus cannot deliberate the reasons for its survival or demise. The extended family might speak on behalf of the unborn, but that family might also want its birth for reasons foundationally unrelated to its self well-being.

Talbot: Senator Warren–Jon–if I may?

Warren: Yes, Mary, go ahead.

Talbot: Not demise, Judge–murder. That ends the matter. We hide what we do behind soothing words.

Suzuki: Correct.

Talbot: I don’t care why your “extended family” keeps that child alive. I am just grateful it did. All else is secondary.

Suzuki: The family fight will remain. The autonomous woman will abide.

Talbot: Autonomy does not destroy the moral sense. We can teach, others can learn. Autonomy doesn’t have to be associated with murder.

Suzuki: That is not a role for the Judiciary.

Talbot: Murder is not!

Suzuki: No–the teaching you speak of.

Warren: Mary, this man is a chameleon–which is what I have been trying to show. Let me see if I can nail it down.

Talbot: I thank the Senator for his time.

Warren: Judge, is there anything in the clauses we have discussed which protects abortion?

Suzuki: The common law evolves. I cannot say with certainty, but, in the general sense of Roe, I think not.

Warren: Will the 5th Amendment prohibit abortion?

Suzuki: Only if the fetus may be seen as a property interest other than the mother’s. If so, a contingent prohibition might result, but not a full ban. There would be many occasions when no such rival interest is present. In my view, the 5th Amendment could only allow a common law challenge on property, not life. The fetus is not a person in common law.

Talbot: Please?

Warren: Yes, Senator.

Talbot: We do not allow people to kill their pets, and these are considered property.

Suzuki: In outcome, we do allow it. But, yes, in principle the law may penalize it. If Roe is void, a State may still allow abortion. I took Senator Werren’s question in that context.

Talbot: Did you answer him? I couldn’t tell.

Suzuki: <pause> The audience no longer laughs. Too tired, too serious, too numb. <pause> We should be clear that privacy no longer grounds protected abortion. Webster and Casey declare a liberty interest in reproductive autonomy. If these are voided as well…

Talbot: Do you think they should be?

Suzuki: Yes, I have so said.

Talbot: Go on.

Suzuki: Then a case invoking the genetic interest of the father–as property–might have common law standing through the 5th Amendment. But this would not ban abortion as such.

Warren: Mary, I would like to continue now.

Talbot: Yes, thanks, Jon.

Warren: Judge, can the State have a property interest in the fetus?

Suzuki: No. The State mimics the role of the extended family in protection, but is not such a family.

Warren: Then how can the State ban abortion?

Suzuki: Protection of life as a moral interest. Same reason it can prohibit cruelty to animals.

Warren: It sounds as though in your view of law abortion will be even more difficult than before Roe, as individual challenges are possible, via the 5th Amendment, in States permitting abortion.

Suzuki: Such common law due process challenges would go to jury. I can see a jury treating a couple together for several years differently than a single sexual event.

Warren: What about rape?

Suzuki: I do not believe a rapist would have common law standing; his act taints him against writ. But in a State banning abortion, rape would seem to be an exclusion at legislative whim.

Warren: Good Lord.

Suzuki: Senator, in my view there is nothing in present jurisprudence which will ban abortion at the Federal level.

Warren: What about privacy–er, if there were such, in your view, at the Federal level?

Suzuki: I do not think privacy would allow cruelty to animals.

Warren: But you said privacy might allow a State court to protect abortion.

Suzuki: I do not sit on, nor am I nominated for, a State high court.

Warren: Hasn’t stopped you before.

Suzuki: I do not think privacy the issue at all; it is autonomy. They overlap, but are not identical. There can be autonomy without privacy; Congress has this in areas absent national security. And privacy need not reach autonomy as, for example, cruelty to animals.

Warren: In your view, a State court protecting abortion based on a State constitution privacy clause would be mistaken?

Suzuki: At first blush, I would say they have mutated the right. We must be true to words. But I am not on such a court.

Warren: Well, Suzuki, you have dissatisfied me. I can only hope your due process incantations have alienated your party.

Suzuki: It would have been politic to remain silent.

Warren: But you did not.

Suzuki: How could I respect you if I did? If we are to reconcile these differences none of us can remain silent.

Warren: There is no reconciliation, Suzuki, just winning.

Suzuki: Senator, I submit the days of victory are behind us. Neither side in abortion will vanish. Something in the country sustains both.

Warren: <pause> If I cannot win, what do I do?

Suzuki: Become something else. Recognize the value of prior dissent. My exposition of 14th Amendment due process tries to adhere to its textual and historical contexts. It recognizes that a due process of pure form would be nearly redundant with equal protection. Some form of unique protection was meant. But there is no evidence it was meant to produce new rights in itself. Importation of writ satisfies the warning of Justice Black in his Griswold dissent. May I read some of it?

Warren: Briefly. The Chairman is beginning to look at his watch–a lot.

Suzuki: Justice Black says

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This …is well illustrated by use of the term “right of privacy” as a comprehensive substitute for the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” “Privacy” is a broad, abstract, ambiguous concept which can easily be shrunken in meaning but which can also …easily be interpreted as a constitutional ban against many things other than searches and seizures. [381 U.S. 479, 509]

His warning becomes prophecy, just a few years after his departure, in Roe. Fourteenth Amendment due process as imported writ allows Griswold in outcome as marital privacy while avoiding the extension of language Justice Black fears.

Warren: First, I don’t think that extension a bad thing. Second, you’re fudging. I may be tired, but I’m not stupid. Your common law determination of marital privacy might come off or it might not. It might take a decade or more and would be State bound. You offer a hard, bending, uncertain road.

Suzuki: Yes, Senator. The extension of rights under due process is cumbersome. It is this which avoids Justice Black’s prediction. Due process does not create rights de novo. Griswold and its dissent are reconciled. In outcome, neither is what it once was.

Senator Seger of Minnesota (Democrat): A middle way?

Suzuki: Yes. The fusion of apparent opposites.

Seger: Sorry, Jon, I can’t resist: a synthesis of opposites to a new unity?

Suzuki: No, Senator. Aspects of opposites, placed together, to make something new. A new path. That is all. But that is what we need, I think. That is what we must find.

Warren: I would like to stop for the day, Mr. Chairman. I think I and the Senator from Minnesota beat yesterday’s marathon record. But I still have one area left and ask to continue tomorrow.

Chairman Allred: We’re getting an entertainment, that’s for sure. Without objection? Agreed.

On the Suzuki Court