Emanations and penumbras
In the article on cannibalism by Theodore Dalrymple that is linked below, Dalrymple powerfully challenges the principle of "mutual consent" as a first principle of morality. Yet who can doubt that "mutual consent" is the bedrock principle of contemporary American public life?
While the principle of consent is the moral basis of free government, the principle of consent is itself secondary to the principle of human equality and derivative of the normative concept of nature, from which natural right reasoning follows. Under natural right reasoning, consent cannot validate slavery, for example, because the relationship of master and slave is unnatural between men who are created equal with respect to their inalienable rights to life, liberty and the pursuit of happiness.
How has the principle of consent usurped the preeminent place formerly held by nature and natural right in American public life? In our essay on the Clinton scandals, "Perjury Penumbra," Rocket Man and I attributed much of the responsibility for this development to "The Playboy Philosophy:"
Readers of a certain age may recall that in days of yore Playboy carried a monthly essay by Hugh Hefner under the heading of "The Playboy Philosophy." The monthly Hefner essay was a staple of the magazine for what seemed like three or four decades. Every month, along with the girls and the fiction and the articles on stereo equipment and cars, Playboy carried a long — interminable, really — dissertation on Hefner's "philosophy." If all the installments of "The Playboy Philosophy" were collected and published in book form, they would (in volume, at least) put the Encyclopedia Britannica to shame. Hefner made Marcel Proust look like Calvin Coolidge.
"The Playboy Philosophy" may have been verbose but it was fascinating, especially if you were, like Rocket Man and I when we first undertoook our philosophical studies under Hefner's tutelage, thirteen. Hefner painted a grim picture of the sexual landscape of early-sixties America.
America was, we learned, dominated by Puritanism. Books were censored. A few jurisdictions banned, or purported to ban, the sale of contraceptives. Archaic laws against oral sex were on the books in many states, and married couples were hauled off in chains for violating them. Puritanical prosecutors and judges lay in wait to punish anyone venturing to engage in sex that was not of the approved sort. With hindsight, this was an odd perspective on the America of that era, but it described our junior high schools pretty well, and we bought it.
While railing against the Puritanism of present-day America, Hefner described the world that was struggling to be born. A world where sexual gratification was available to everyone (at least everyone who could afford a car and a stereo), and freely consenting girls would be standing on every street corner. We know now it didn't quite turn out that way, but at the time, it sounded good to us.
Most works of philosophy that run to seventy or eighty volumes are hard to summarize. Not Hefner's. He really only made one point, and he made it over and over again. The conclusion of his monthly harangue was always the same: what two consenting adults do in the privacy of their bedroom is their own business, and no one else's.
It sounded right to us. How could anyone argue with Hefner's logic? Actually, virtually no one did. And so, the concept of "two consenting adults" seeped into our awareness, smuggled between risque cartoons and semi-nude photographs of the Playmate of the Month, who was usually described as a "UCLA coed." We believed that, too.
It turned out that we weren't the only ones who absorbed and internalized the Playboy Philosophy. As the years went by, it became harder and harder to find much in America that could be described as Puritanical. Even in the junior high schools. By the early 1970s, there was probably no proposition that commanded more universal assent than "two consenting adults."
Before long, the proposition worked its way from the popular culture into more official circles. The key moment was probably 1965, when the Supreme Court ruled in Griswold v. Connecticut that a state could not constitutionally ban the sale and use of contraceptives. It was in Griswold that the Court first discerned a "right of privacy" in the Constitution. Justice Douglas wrote: "[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."
Griswold was pure Hefner, in the sense that it dealt with one of those outrageous, archaic laws that were regularly castigated in the Playboy Philosophy. In reality, the State of Connecticut made no effort to interfere with the use of contraceptives; the statute was on the books but was not enforced. Griswold was commenced by a group of students at Yale who conceived the lawsuit as a class project.
No matter. The right to privacy was born. In 1973 it received its fullest expression in Roe v. Wade, where Justice Blackmun, writing for a majority of the Court, found a right to abortion on demand among the "penumbras" and "emanations" of various constitutional amendments which, on their face, have nothing whatever to do with abortion. The right of privacy that was devised to shield the actions of "consenting adults" had created a kind of force field that demolished the longstanding laws of forty-six of the fifty states.
Griswold and Roe have been denounced by many commentators as judicial usurpation. But, putting aside the specific issues of constitutional interpretation at issue in those cases, the metaphors used by Justices Douglas and Blackmun can be useful ones. Fundamental propositions of law and policy — first principles — do have penumbras and emanations. First principles are given broad and expansive application. They carve out space around themselves.
Abraham Lincoln put it this way: "Our government rests in public opinion....Public opinion, on any subject, always has a central idea from which all its minor thoughts radiate. That central idea in our political public opinion, at the beginning was, and until recently has continued to be, the equality of men."
Thus, if you believe, as Lincoln did, that "All men are created equal" is a first principle, you raise an army and fight a war to vindicate that principle. Existing views of property rights, historic notions of state sovereignty and diversity, and the right of habeas corpus all yielded to the mighty first principle of the Declaration.
Likewise, if you believe that "Congress shall make no law abridging the freedom of speech, or of the press" is a first principle, then that doctrine is surrounded by a broad penumbra. "Congress" means not just Congress, but also the states; "speech" includes not only talking about politics, but also contributing to political campaigns, burning flags and publishing pictures of Miss November. And John Peter Zenger, who was jailed for violating the Alien and Sedition Acts, wasn't a criminal; he was a hero.
If you believe that "equal protection of the laws" is a first principle, then that proposition outweighs a multitude of local laws and customs. If you're Martin Luther King, your first principles dictate that you spend time in the Montgomery jail.
Above the entrance to the Supreme Court building are carved the words "equal justice under law." That is a first principle, whose powerful emanations reach high and low. Petty criminals, like Clarence Gideon, win landmark constitutional victories. Powerful and brutal criminals, like John Gotti, are run to ground by dogged, courageous prosecutors. And even the mightiest politicians, like Richard Nixon and Dan Rostenkowski, have found that the rules that govern ordinary citizens apply to them as well. Secondary doctrines like executive privilege yield to first principles.
Public reaction to the Clinton scandals suggested that these great propositions have been joined, and perhaps superseded, by another first principle, with its own set of penumbras and emanations. That's right: the Playboy Philosophy. What two consenting adults do in the privacy of their bedroom is no one else's business. This is the proposition that was universally cited by President Clinton's defenders, who were mystified that anyone could take seriously a scandal that was only about sex.
Understand that we haven't really changed our minds about the "consenting adults" principle since our junior high school days. No doubt, as a general rule consenting adults can and should do whatever they want to do. Anyway, in today's America there is no stopping them. What is troubling is the elevation of this concept to the status of a first principle of our democracy.
Like any first principle, "consenting adults in the privacy of their bedroom" gets a broad reading, i.e., a penumbra. Thus, the concept of a "bedroom" is viewed expansively. Bill and Monica didn't exactly use a bedroom. Their activities took place in his office. Actually, our office, the Oval Office, where Ronald Reagan wouldn't remove his suit coat as a gesture of respect for his predecessors.
And they didn't exactly do it in privacy, since their escapades were well known to many Secret Service men and White House staff, who were required to compromise standard security precautions by ushering Monica in and out of the White House without recording her visits. And one of the consenting parties, in addition to being just barely an adult, was an unpaid employee of the other.
Whatever. When dealing with a first principle of philosophy, these were quibbles. More troubling was the little matter of perjury. Until the Clinton scandals, perjury was always viewed as a serious crime. Perjury in a federal case, as was committed by Clinton, carries a penalty of five years in a federal penitentiary. Perjury is a felony; felons are not only disqualified from holding public office, they can't vote. And the laws governing perjury make no discrimination on the basis of subject matter. Any knowingly false testimony about facts material to a civil or criminal case counts.
But in the Clinton case, a new first principle came into play. Since Clinton's false testimony related to the sexual activities of consenting adults, it was "only about sex." In the eyes of his defenders, the President's perjury was inconsequential because it fell within the penumbra of the "consenting adults" rule. Indeed, Clinton's criminal conduct was even held out as honorable, much like the actions of John Peter Zenger or Martin Luther King, who knowingly violated the laws of their time out of fidelity to first principles, or Abraham Lincoln, who did what was necessary to win a war that had to be won.
First principles are the foundation stones of public life. A nation has room for only a very limited number of them. First principles always come at a cost; they trump other rules and concepts which may themselves have value. A democracy must carefully weigh the propositions it embraces as fundamental.
Today, a great many Americans more readily and unequivocally assent to the Playboy Philosophy than to the older, harder, more austere principles that guided the Founding. The consequences for our public standards and for the principle of equal justice under law are profound.
