An Exegetic Theory of Liberty

But now we immediately face daunting challenges about the meaning of these terms. What are the limits of a “medical decision?” What are the limits of the public health clause? Can the regulation of the practice of medicine impinge on medical decisions if, for example, a procedure is regulated out of availability? Does this create an immediate tension between the preamble and the restrictive clauses?

Let’s take a version of Putnam’s concerns about meaning. What is a neutrino? Many people would simply shrug and admit that they don’t know. Some would recall something like a particle that can pass through stuff. A few of these who have some physics or are widely read might say that they are very light particles that emerge from neutron decay and are needed to balance the nuclear decay equation. This last series of images might include thoughts about giant underground detector baths of water or mineral oil or something. In general, though, we can conclude that defining something that is physical, measurable, but incomplete is a daunting task.

Legal theories have this kind of amorphous semantics, especially with regard to concepts like “liberty.” We certainly have some indelible images like “your liberty ends at my nose” but that doesn’t create a very effective template for legal decision trees. Does a stand-your-ground law preserve my liberty to self-defense or is it an excessive application of force when the two parties’ joint right to life is better preserved by a duty to retreat? Dobbs v. Jackson Women’s Health Organization lays out the problem of defining liberty:

“Liberty” is a capacious term. As Lincoln once said: “We all declare for Liberty; but in using the same word we do not all mean the same thing.”

We need to pin down some useful semantics concerning this concept of liberty. So we come back to my modest proposal:

Congress shall make no law interfering with medical decisions except in the case of public health and in the regulation of the practice of medicine.

We now need exegesis from the author himself (and associates). We need a roll-up of intent and extent that will create Putnam’s expert understanding of how liberty is impacted by the clauses in the proposed amendment. This is very different from the abstract emergence of privacy and liberty concepts that grew out of considerations of the 4th, 10th, and 14th amendments that led to Roe v. Wade. First, we know that the use of “congress” in the preamble also applies to all state and lower laws due to the Supremacy Clause. But there needs to be a discussion of how “public health” can be defined. In the case of Dobbs v. Jackson, there are footnotes that African-American fetuses are aborted at higher rates than for other racial or demographic groups. An expansive description of public health might suggest a way to smuggle in anti-abortion legalities as being in the interest of the public. This exegetic theory of lawmaking requires that we set boundaries on the phrase. Public health must be thoroughly examined in a Socratic tear-down of what is and is not properly in the interest of public health: should the state have the power to sterilize a certain class of people because they are perceived by some lawmakers as reproducing excessively? Clearly this is an abhorrent application of the concept of public health, but it is only abhorrent in very recent times where our ideas of justice and fairness have expanded. There were times in American history when such ideas were acceptable. A healthy exegesis needs to explore these ramifications and sketch boundaries around the concept of public health.

Now courts might find this exegesis lacking in the application of the amendment to future predicaments and challenges to the legal understanding of the terms, but at least it has been codified and serves as a minimal bar for considering those future cases. Without it there is only the difficult trajectory that was laid out in Dobbs v. Jackson where they applied a standard that the extension of various amendments in developing a notion of personal autonomy and liberty emerged from:

…[a]“long sweep of history” [that] imposes … restraint[s] on the recognition of unenumerated rights

So let’s enumerate them and then define them. Now, Dobbs v. Jackson does note that the courts don’t weigh most statements from legislative bodies as having significant resolving power for the details of the law because the many members of the bodies can vote on it for varying reasons:

Even when an argument about legislative motive is backed by statements made by legislators who voted for a law, we have been reluctant to attribute those motives to the legislative body as a whole. “What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it.”

I think this is a mistake. When a law is proposed, those voting for it must at least agree with the surface meaning of the words. They may also vote for other reasons, certainly. They may want to appease their electorate. They may want to appease their party bosses. They may want to be part of something historic. But they must agree with the central impetus of the law or regulation. They must agree with the words and, by extension, the exegesis. This could be further amplified by placing the text in the public record.

We have plenty of examples of how exegesis leaks into constitutional law. Jefferson’s letter to the Danbury Baptists, for instance, was the source of “building a wall of separation between Church & State” that finds its way into religious freedom cases like Lemon v. Kurtzman:

Judicial caveats against entanglement must recognize that the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.

And here we see how the “wall of separation” was modified by case law into something less than our common association, yet remained a core metaphorical pillar for understanding the goals of the First Amendment. There are other Jeffersonian influences that show up, including reference to his Virginia statute, but the interpretative analysis could have been provided with the text of the amendment. It seems sloppy at best to rely on the judicial branch to interpret short, pithy phrases without the added benefit of extensive semantic guidance.

And so, a modest proposal that should an effort be made to create a new understanding of liberty and privacy post Dobbs, we would benefit from an exegetic thoroughness of execution.