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Introduction
For many English intellectuals, the years preceding the Second World War marinated in exasperation, resentment, and anger.
Marc Stears, Out of the Ordinary: How Everyday Life Inspired a Nation and How It Can Again (2021).
On the right, figures like T.S. Eliot bemoaned the erosion of traditional authority and its replacement with vacuous vulgarity.
Orwell was troubled by Eliot's persistent “conscious futility.” See 2 George Orwell, Review, in 2 The Collected Essays, Journalism and Letters: My Country Right or Left, 1940–1943 236, 240 (Sonia Orwell & Ian Angus eds., 1968).
On the left, figures like W.H. Auden bemoaned the presence of traditional authority and its vacuous vulgarity.
Orwell thought Auden spent the war “watching his navel in America.” George Orwell, Literature and the Left, in The Collected Essays, Journalism and Letters: My Country Right or Left, 1940–1943 292, 294 (Sonia Orwell & Ian Angus eds., 1968).
Neither camp much considered the everyday lives, hopes, and fears of ordinary people, so caught up were they in Deep Thoughts. George Orwell, though emphatically a man of the Left, was even more emphatically his own man. He regarded the preoccupation with ideological abstractions as not simply an inadequate path to understanding the world, but also a dangerous one; for in dismissing the value of the mundane and the specific, it opened the door to an arrogance that was thoroughly hostile to liberty and decency. Thus, he wrote books detailing the life of being down and out in Paris and London
George Orwell, Down and Out in Paris and London (1933).
or mining in Wigan,
George Orwell, The Road to Wigan Pier (1937).
and found time to praise suet pudding.
In Defense of English Cooking, Evening Standard, Dec. 15, 1945. Orwell's preoccupation with the everyday led one anthropologist to call him an ethnographer, an honorific the decidedly non-academic Orwell would surely have laughed off. Michael Amundson, George Orwell's Ethnographies of Experience: “The Road to Wigan Pier” and “Down and Out in Paris and London”, 25 Anthro. J. Eur. Cult. 9 (2016).
This quotidian concern never leaves Orwell's Nineteen Eighty-Four,
George Orwell, Nineteen Eighty-Four (1949).
the most famous modern dystopian novel. In contrast, earlier efforts with their focus on futuristic technology seem remote fantasies, speculative, removed from today, lacking in bite. In We (1924)
Yevgeny I. Zamyatin, We (Gregory Zilboorg trans., 1924).
by Yevgeny I. Zamyatin, for example, a rational, technological society ruled by The Benefactor puts down a rebellion and uses x-rays to eliminate nerve centers responsible for imagination. Scientifically managed and emotionally neutered, the society exhibits a kind of frightening harmony. Aldous Huxley's Brave New World (1932)
Aldous Huxley, Brave New World (1932).
features innovations in human engineering and reproductive technology that make possible a society where hedonistic pleasures lull the inhabitants into a helpless stupor; if they did not exactly consent to their docility, they certainly do not seem troubled by it.
It has long been a cliché that in the West, particularly, the United States, the population is either anesthetized or distracted by its incessant, booming materialism. Alexander Solzhenitsyn, The Exhausted West, Harv. Mag., Jul.-Aug. 1978, at 20; Thorstein Veblen, The Theory of the Leisure Class: An Economic Study of Institutions (B.W. Huebsch 1918) (1899); John K. Galbraith, The New Industrial State (New. Am. Libr., 2d ed., 1971) (1968); David Reisman et al., The Lonely Crowd: A Study of the Changing American Character (Yale Univ. Press 1950); Vance Packard, The Status Seekers (1959). William Wordsworth, The World Is Too Much with Us (1807) (as Wordsworth puts it, “The world is too much with us . . . getting and spending; we lay waste our powers”).
In these dystopias, we are our own worst enemies, as our powerful drives for pleasure and comfort undermine and vanquish our urge for autonomy and freedom, but unlike Nineteen Eighty-Four, set less than forty years away, we do not read them and think they are about us.
It is fair to ask whether Orwell's reflexive hostility to abstractions was carried too far. We do, after all, need some kind of overall theory or concept or prejudice to make sense from what otherwise would simply be onrushing disparate facts. If we do not openly acknowledge the theory, we may be guided by an implicit version we never bothered to examine, and that can hardly be a useful way to try to understand the world. Orwell, in his preference for the concrete, sometimes makes lists of things do the work of argumentation, gliding over the fact that a different list might support a different argument. Yet if he occasionally falls into this trap, his preoccupation with the tangible and the real works far more often as a bracing intellectual vaccine that wards off the inane and toxic ideas poised to attack us.
In Nineteen Eighty-Four, the setting is almost familiar and thoroughly unpleasant, reflecting dreary postwar London and the bleak isle of Jura where a dying Orwell wrote the novel; everything is gloomy, gritty, and gray. Freedom has been eliminated not through Zamyatin and Huxley's malevolent technology of a distant future, but instead with the use of an elaborate and self-reinforcing system of education, censorship, terror, and above all, the language of Newspeak. The people receive no benefit in return.
To today's reader of Nineteen Eighty-Four, the most obvious dystopian loss is privacy, in Warren and Brandeis’ famous formulation, “the right to be let alone.”
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 205 (1890). At the same time, we are social creatures who abhor loneliness, and we live in societies dominated by private norms and official rules that do not let us alone.
Like Hitler's Germany and Stalin's Soviet Union, Orwell's superstates aim at the obliteration of individuality in the service of an elite-determined common good, really, the production of a new kind of person. Privacy in the sense of authorities respecting our need for solitude, secrecy, and autonomy is in his world nowhere to be found. This absence is epitomized by the telescreen, a ubiquitous technology that facilitates continual surveillance of everyone, recalling the Christian surveillance cliché that God notes the fall of every sparrow.
Matthew 10:29.
Big Brother, a fictional construct making a profoundly practical point, is watching you. He is “infallible and all-powerful,” Orwell tells us. “Nobody has ever seen Big Brother. . . . His function is to act as a focusing point for love, fear, and reverence. . .
Orwell, supra note 7, at 213.
Unlike most dystopias, which are chock full of gadgets, the telescreen is the only significant technology that Orwell introduces, and its very uniqueness highlights its importance. It molds the people through propaganda, including its two minutes of hate, but its chief value is intimidating them; the point is not that it observes everything they do, but that this is made public and drummed into them. It is the publicizing of the surveillance more than the surveillance itself that generates a sense of powerlessness that conduces to passivity.
Similarly, while Russian officials today offer perfunctory denials that their security service poisons dissidents, the fact that Soviet era toxins are used makes the point that opponents must beware. The brazenness is a most effective show of power.
Where opacity permits diversity, allowing us within a “broad sphere of action”
John S. Mill, On Liberty 11 (Elizabeth Rapaport ed., Hackett Pub. Co., 1978) (1859).
to go our own way, transparency facilitates centralized control and its offspring, homogeneity, docility, and obedience. Thus, the feature that we celebrate in public life as indispensable to accountability becomes our enemy in private life as the foe of privacy and liberty.
Orwell's principal concern, which he developed in a number of essays that preceded Nineteen Eighty-Four,
E.g., George Orwell, The Frontiers of Art and Propaganda, The Listener, May 29, 1941;George Orwell, Literature and Totalitarianism, The Listener, June 19, 1941; George Orwell, Pamphlet Literature, New Statesman and Nation, Jan.9, 1943; 3 George Orwell, Propaganda and Demotic Speech, in The Collected Essays, Journalism and Letters: As I Please, 1943–1945, 135 (Sonia Orwell & Ian Angus eds., 1968); 4 George Orwell, The Prevention of Literature, in The Collected Essays, Journalism and Letters: In Front of Your Nose, 1945–1950, 59 (Sonia Orwell & Ian Angus eds., 1968); George Orwell, Writers and Leviathan, New Leader, June 19, 1948.
was the power of language. Indeed, his “fascination with language is almost an obsession.”
Florence Lewis, Forebears: Orwell and Wescott, 267 N. Am. Rev. 59 (1982).
He went so far as to provide an appendix to the novel, fourteen pages on “The Principles of Newspeak.” In “Politics and the English Language,” he inveighed against stale imagery, lack of precision, worn out metaphors, pretentious diction, jargon, and the passive voice. This essay is often read as a kind of self help guide to better prose, but in fact Orwell had a larger goal in mind. He believed in the truism that thought shapes language, not merely in the trite sense that words refer to things but also that the “great enemy of clear language is insincerity.”
4 George Orwell, Politics and the English Language, in The Collected Essays, Journalism and Letters: In Front of Your Nose, 1945–1950, 127, 137 (Sonia Orwell & Ian Angus eds., 1968).
One of the first tasks of toddlers is to learn the names of things; they see a doll and convert the thought to “doll.” This guileless process, however, is not Orwell's concern. Instead, he focuses on the cynical thought that shapes language. “The first thing that we ask of a writer is that he shall not tell lies, that he shall say what he really thinks, what he feels.”
George Orwell, Literature and Totalitarianism, in 2 The Collected Essays, Journalism and Letters: My Country Right or Left, 1940–1943, 134 (Sonia Orwell & Ian Angus eds., 1968).
Thus, the writer's mortal sin of insincerity: American white supremacy packaged as the Southern Way of Life, the wealthy seeking to avoid taxes calling themselves job creators. The point had been made often, but Orwell's unadorned prose gives it an impact that is distinctive.
Yet for Orwell, as for Dewey, “Society not only continues to exist . . . by communication, but it may fairly be said to exist in communication.”
John Dewey, Democracy and Education 4 (1916).
Words, that is, do not simply represent things in the world, but in a practical sense may also constitute these things. Hence, what makes Politics and the English Language so provocative is Orwell's subversive notion that language shapes thought, for the point of shaping language deceptively is to shape the thought of the audience. Hence, the advertising campaigns aimed at creating panic over halitosis
Esther Inglis-Arkell, The Medical Condition Invented by Listerine, Gizmodo, (Jan. 27, 2015), https://gizmodo.com/the-medical-condition-invented-by-listerine-1682070561.
and body odour
Sarah Everts, They Smelled Bad, Smithsonian Mag., Aug. 2, 2012.
and the fibs and platitudes of ordinary social life.
Erving Goffman, The Presentation of Self in Everyday Life (1959).
Can words simply mean whatever those in charge say they mean? Humpty Dumpty replied, “The question is which is to be master—that's all.”
Lewis Carroll, Alice’s Adventures in Wonderland and Through the Looking-Glass 247 (1924).
Orwell had in mind not a children's book, but the horrifying examples of Nazi Germany and the Soviet Union; Goebbels had raised the Big Lie to an art form, and the Communist party line zigged and zagged without apology. “If thought corrupts language,” he wrote, “language can also corrupt thought.”
Orwell, supra note 18.
As Orwell wrote of Newspeak, a version of English invented by the Party, its purpose “was not only to provide a medium of expression for the world-view of and mental habits proper to the devotees of [the state], but to make all other modes of thought impossible. . . . literally unthinkable, at least in so far as thought is dependent on words.”
Orwell, supra note 7, at 309–10.
Thus, the normal rationale for language, communication, is subordinated to a higher purpose, control.
The Polish philosopher, Leszek Kolakowski, wrote of the Soviet Union, “At public meetings, and even in private conversations, citizens were obliged to repeat in ritual fashion grotesque falsehoods about themselves, the world, and the Soviet Union, and at the same time to keep silent about things they knew very well, not only because they were terrorized but because the incessant repetition of falsehoods which they knew to be such made them accomplices in the campaign of lies inculcated by the party and state.” 3 Main Currents of Marxism: The Breakdown 96 (P.S. Falla trans. 1978).
We understand that government addressing the public, marketers reaching customers, parents entertaining young children, and a vast range of other speakers deliberately devise words and phrases for a vast range of purposes. But we are also comforted by the thought that no one created and thereby can control entire languages, that they develop as a kind of spontaneous, uncoordinated consequence of innumerable human encounters. But in Nineteen Eighty-Four, Orwell posits a state far more ambitious than even the totalitarian systems of his day, and in an appendix to the novel he explains the state's wholesale revisions of English that will simplify nouns and verbs, remove synonyms, redefine problematical terms, and greatly reduce the number of words – all in the service of securing willing, submissive obedience. “The enemies of intellectual liberty,” he observes, “always try to present their case as a plea for discipline versus individualism.”
George Orwell, The Prevention of Literature, in 4 The Collected Essays, Journalism and Letters: In Front of Your Nose, 1945–1950, 59,61 (Sonia Orwell & Ian Angus eds., 1968).
The state aims to complete the project ending in total control by 2050.
The language revision campaign is famously epitomized in a series of oxymoronic slogans, like War Is Peace.
Orwell, supra note 7, at 189.
What can this possibly mean? That war may be a necessary prelude to peace? That war produces a peaceful sensation? That only through war can peace be found? The answer sidesteps all circumlocutions. War and peace have been successfully redefined, so that they literally mean the same thing. The point is made elsewhere, when a Party member, O’Brien, holds up four fingers and asks Winston, the protagonist, how many he sees. Winston answers, “Four! Four! What else can I say? Four!” Whereupon O’Brien tortures Winston, who then utters the desired answer, “Five.” But O’Brien will have none of it. “You are lying. You still think there are four.”
Id. at 258. When Winston is abruptly told that the state's allies and enemies have suddenly switched places, Orwell is obviously referring to Communists reversing the party line after the Hitler-Stalin pact of 1939. Id. at 184–86.
The object is not to elicit the correct response, but to control the thought; Winston must not merely say five, he must believe five. Given scenes like this, it is no wonder that “Orwellian,” with its decidedly sinister overtones, is “the most widely used adjective derived from the name of a modern writer.”
One device that facilitates thought control is the memory hole, literally a hole in the wall leading to a chute and then to an incinerator. The ministry of truth (that is, falsehood) uses the holes to destroy evidence, so that it can continually rewrite history in support of its current positions. Through this endless process of post hoc revision, the Party is always right. Indeed, it is right by definition. As he explained in The Prevention of Literature, lying is “something integral to totalitarianism. . . . A totalitarian state is in effect a theocracy, and its ruling caste, in order to keep its position, has to be thought of as infallible. But since, in practice, no one is infallible, it is frequently necessary to rearrange past events in order to show that this or that mistake was not made, or that this or that imaginary triumph actually happened.”
George Orwell, The Prevention of Literature, in 4 The Collected Essays, Journalism and Letters: In Front of Your Nose, 1945–1950, 63 (Sonia Orwell & Ian Angus eds., 1968).
Thus does language emasculate thought and serve as a foundation for power.
The implications for law, a chief means of social control, are plain. Law, in the words of a founder of the law and literature school of thought, “establishes the terms on which its actors may talk in conflict and cooperation among themselves.”
James Boyd White, When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community 266 (1984).
Judicial opinions, then, may be conceived as part of an ongoing conversation on the issues raised, and so concern with the language employed becomes a major element in analysis. In the light of Orwellian language, consider a pair of famous judicial opinions that (unintentionally) illustrate the abuses that attracted Orwell's ire.
Henry Billings Brown and Plessy v. Ferguson
The first opinion to be examined was written by Henry Billings Brown, perhaps the most famous forgotten justice in the history of the Supreme Court. He was born in the Massachusetts village of South Lee in 1836 into a prosperous Puritan family, in which, he later observed, “there has been no admixture of alien blood for two hundred fifty years.”
Henry B. Brown, Memoirs 1 (1915).
After a pleasant and uneventful childhood, he recalled, “I was naturally obedient, and when my father said to me one day, ‘My boy, I want you to become a lawyer,’ I felt that my fate was settled, and had no more idea of questioning it than I should have had in impeaching a decree of Divine Providence.”
Id. at 5.
He graduated from Harvard, attended Yale and Harvard law schools for a while, read law in Detroit, where he joined the bar and served as assistant district attorney and then briefly as a judge, when he reported that he “was glad to take refuge in the comparative repose of the bench.”
Id. at 21.
He returned to private practice and developed a specialty in admiralty law as applied to Great Lakes shipping, but confessed that his “health was giving way under the uncongenial strifes of the bar.”
Id.
In 1875, he secured a federal district judgeship. Benefitting from a well placed recommendation from an eminent colleague, Brown was appointed to the Supreme Court in 1890 and served until 1906, when declining health and the prospect of continuing to receive full pay at age seventy led him to retire. He died in 1913.
How, then, can we characterize Brown's judicial career? He was a judge of modest abilities and temperament. Though he served with such figures as Holmes, Harlan, and Field, he lacked their intellectual ambition and force of personality. A conventional pro-business Republican, Brown avoided confrontations—hence, his arcane specialization— and seems to have had a deferential, timid streak. He also appears never to have been interested in the question of race, though he lived through a time in which controversies over slavery, Reconstruction, Jim Crow, and the Ku Klux Klan consistently placed it high on the national agenda. A diary he kept during the Civil War contained no reference to slavery or blacks.
Id. at 45–57.
When as a federal judge after the war he spent an evening with the former president of the Confederacy, Jefferson Davis, Brown recalled, “I am bound to say that I never spent a more delightful evening. I found Mr. Davis a most courteous and agreeable gentleman of the best Southern type.”
Id. at 23.
In 1896, Brown was assigned the majority opinion in Plessy v. Ferguson (1896). The case involved the Louisiana Separate Car Act that required trains to “provide separate but equal accommodations for the white and colored races. . . . No person or persons shall be permitted to occupy seats in coaches other than the ones assigned to them on account of the race they belong to.”
1890 La. Acts c.111, 152.
Homer Plessy, who was one-eighth black, challenged the law by sitting in a first class coach reserved for whites. A conductor told him to move to a coach reserved for blacks; he refused, and was ejected from the train and jailed for violating the law.
Plessy pointed out that in New Orleans, where he resided, in addition to blacks, there were (in the language of the day) mulattoes, quadroons, and octoroons, and these latter three groups enjoyed higher social status and dominated African American political life. New Orleans, in short, recognized a variety of races,
Gwendolyn M. Hall, Africans in Colonial Louisiana 29–32 (1992); Creole New Orleans: Race and Americanization (Arnold R. Hirsch & Joseph Logsdon eds., 1992); Amy R. Sumpter, Segregation of the Free People of Color and the Construction of Race in Antebellum New Orleans, 48 Se. Geographer 19 (2008).
and Plessy, a light complexioned octoroon, was selected to test the law precisely because he epitomized “the arbitrariness of the [binary] classification.”
Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation 31 (1987).
As he argued in his brief, it was often “impossible” to determine a person's race;
Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law 33 (Phillip B. Kurland & Gerhard Casper eds., 1975).
and in his case, Brown noted that “the mixture of colored blood was not discernable in him.”
Plessy v. Ferguson, 163 U.S. 537, 541 (1896).
If Plessy had not informed the conductor that he was black, in all likelihood he would have passed for white.
Keith W. Medley, We as Freemen: Plessy v. Ferguson 142 (2003).
The Separate Car Act thus threatened people like Plessy, who enjoyed some privileges, rather than darker blacks, who enjoyed none.
How, then, asked Plessy, could assigning passengers on the basis of race be left to untrained conductors? What gave the question great practical importance, he contended, was that race operated as a proxy for reputation. Lighter skin was valued greater than darker skin because under slavery lighter skin African Americans were likely domestic slaves or free persons, while darker skin African Americans were likely field slaves. Reputation was a form of property; the conductor was clothed with the authority of the state; the conductor's action in calling Plessy colored, therefore, constituted state action that deprived him of property without due process of law in violation of the Fourteenth Amendment. So went Plessy's argument. Plessy would have solved the problem by empowering the individual to determine his own race. (Ironically, he refused “to admit that he was in any sense or in any proportion a colored man.”
Brown, supra note 44, at 539–40.
)
The common law compelled carriers to serve everyone, provided they were orderly and could pay the fare, but granted carriers the power to assign seats. But was the common law superseded by the Fourteenth Amendment's equal protection clause? Brown saw no conflict. “The power to assign [a passenger] to a particular coach implies a power to determine to which race the passenger belongs,”
Id. at 537, 549.
Brown cited ten cases in order to show that “statutes for the separation of the two races upon public conveyances was held to be constitutional.”
Id. at 548.
Upon examination, however, one of these cases did not involve race,
Memphis & C. R. Co. v. Benson, 85 Tenn. 627 (1887).
another did not involve trains,
People v. King, 18 N.E. 245 (1888).
two were decided before the adoption of the Fourteenth Amendment
Day v. Owen, 5 Mich. 520 (1858); West Chester & Philadelphia R.R. v. Miles, 55 Pa. 209 (1867).
and none of the remainder raised constitutional issues.
Chicago & Nw. Ry. v. Williams, 55 Ill. 185 (1870); Chesapeake, Ohio & Sw. R.R. v. Wells, 85 Tenn. 613 (1885); The Sue, 22 F. 843 (D. Md. 1885); Logwood v. Memphis & C.R. Co., 23 F. 318 (C.C. W.D. Tenn. 1885); McGuinn v. Forbes, 37 F. 639 (D. Md. 1889); Houck v. South. Pac. Ry. Co, 38 F. 226 (C.C.W.D. Tex. 1888).
The ten citations, which together appear impressive, all disappear upon investigation, but the point had been made.
In considering the role of the conductor, Brown ignored Plessy's assertion that racial assignment will not always be easy to do. He did not consider Plessy's racial plea for self-assignment, perhaps because it would have encouraged light complexioned African Americans to call themselves white. On the other hand, nor did he consider that Louisiana's practice of relying on the judgment of conductors would introduce an element of unrestrained discretion that would fatally undermine the presumed objectivity of the procedure. Brown seems to have regarded binary racial identification as a question to be solved by common sense; “a legal distinction between the white and colored races . . . is founded in the color of the two races, and . . . must always exist so long as white men are distinguished from the other race by color.”
Supra note 44, at 543.
As to “the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person,” he would leave this “to be determined under the laws of each state and [and] not properly put at issue in this case.”
Id. at 552.
In Brown's eyes, then, we all can distinguish between white and black (except, of course, in the case of Homer Plessy). Race, in this sense, is a fixed and obvious matter of biology, not a category created and enforced by people, and therefore inherently problematic, blurry, and shifting. Thus, assigning Plessy to a black car could not damage his reputation “since he is not lawfully entitled to the reputation of a white man.”
Id. at 549. On the other hand, “if he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so called property.” Id.
For Plessy, this was the common sense that tells us the earth is flat.
Plessy had also raised the issue in his brief of the Thirteenth Amendment banning slavery, calling segregation “a badge of servitude,” but Brown brushed off the contention as “too clear for argument.”
Id. at 542.
In support, he cited the Slaughterhouse Cases (1873)
Slaughterhouse Cases, 83 U.S. 36 (1872).
as establishing that the Thirteenth Amendment abolished slavery, Mexican peonage, and the Chinese coolie trade. “It was intimated,” he wrote, “that this amendment was regarded by statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern States, imposing upon the colored race onerous disabilities and burdens, and curtailing their rights in the pursuit of life, liberty and property to such an extent that their freedom was of little value.”
Supra note 44, at 542.
Interestingly, Brown cited only the Slaughterhouse Cases as a whole and not, as is customary, the specific relevant passage. Upon investigation, the reason for this omission becomes clear. The Slaughterhouse Cases contains no such passage; in fact, the Slaughterhouse opinion states, “The prohibition of ‘slavery and involuntary servitude’ in every form and degree . . . . comprises much more than the abolition or prohibition of African slavery.”
Supra note 57, at 49–50.
The case, in short, while it does not support Plessy's argument, does not support Brown's, either. As to the intimated statesmen Brown referred to, he offers no citation to the amendment's legislative history or to anything else.
After discussing the Slaughterhouse Cases, Brown refers to the Civil Rights Cases (1883),
Civil Rights Cases, 109 U.S. 3. (1883).
noting that here the Court held that “the act of a mere individual . . . refusing accommodations to colored people cannot be regarded as imposing any badge of slavery.”
Supra note 44, at 543, 546–47.
However, in Plessy, the conductor was not acting as a mere individual or agent of the railroad, but rather as an enforcer of a state statute. The citations to the famous Slaughterhouse Cases and the Civil Rights Cases, then, are irrelevant and prove nothing.
Given the developments sweeping the South in the 1890s, would segregation metastasize to cover virtually every aspect of life? “The reply to all this is that every exercise of the police power must be reasonable,” said Brown, “and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class.”
Id., at 550.
In short, mindless fear mongering that can safely be ignored.
Three years later, a unanimous Court found no constitutional problem in a school board discontinuing a high school for blacks, while maintaining one for whites, giving budgetary woes as the reason. The Court's opinion was written by Harlan. Cumming v. Richmond Cty. Bd. of Educ., 175 U.S. 528 (1899). See J. Morgan Kousser, Separate but Not Equal: The Supreme Court's First Decision on Racial Discrimination in Schools, 46 J. Southern Hist. 17 (1980).
The rest of Brown's opinion closely followed that of the lower court. He observed that states are free “to act with reference to the established usages, customs and traditions of the people with a view to the promotion of their comfort, and the preservation of the public peace and good order.”
Id. Cf. Ex parte Plessy, 11 So. 948, 951 (1892).
Certainly, segregation on trains is no more “unreasonable or more obnoxious” than congressionally mandated segregated schools in Washington, D.C.
Supra note 44, at 551.
Louisiana, therefore, is not unreasonable in concluding that racial segregation on trains serves these lawful ends. Brown did not inquire as to why segregation promoted the comfort, public pace, and good order of the populace. Was it simply that adhering to settled tradition, good in itself, produces these results? But, then, hadn’t the Civil War been fought to overturn the settled tradition of slavery? Or was the settled tradition white supremacy, in which case references to equality could be disregarded? Brown does not press Louisiana for an explanation, perhaps because he already knew what it would be.
Thus, Brown accepted Louisiana's contention that the law did nothing but legally formalize settled practice. In fact, however, the years preceding the passage of the law were ones of “flux and change [with] no consistent, thorough, and effective system of social control, legal or extralegal, governing relations between the races.”
Henry C. Dethloff & Robert R. James, Race Relations in Louisiana, 1877–98, 9 La. Hist. 301, 304–05 (1968).
Indeed, one observer wrote, “In Louisiana certain railway trains and steamboats run side by side, within a mile of one another, where in the trains a negro or mulatto may sit where he will, and on the boats he must confine himself to a separate quarter called the ‘Freedman's Bureau’.”
George W. Cable, The Negro Question, in The Negro Question 129 (Arlin Turner ed., 1958).
The state's Reconstruction constitution of 1868 explicitly stated, “All persons shall enjoy equal rights and privileges upon any conveyance of a public character,”
La. Const. art. XIII.
though it was replaced by a much less friendly constitution in 1879. In other parts of the South, whites and blacks rode “together and without a partition between them,”
C. Vann Woodward, The Strange Career of Jim Crow 92 (rev. ed. 1957).
and in Tennessee, whites who smoked or had second class tickets frequently rode in train cars reserved for blacks.
Logwood v. Memphis C.R. Co., 23 F. 318 (C.W.D. Tenn. 1885).
In short, the Louisiana law was enacted less to formalize accepted practice than to change and rigidify it.
For Brown, equal does not mean identical. Of course, in ordinary speech, that is exactly what “equal” means. Two plus two is identical to four. But nearly all laws classify people, and thus treat people in one category differently from those in another. A driver exceeding the speed limit will be treated differently under the law from one who does not. Similarly, in considering benefits, the Court has held that providing Chinese students with exactly the same education as was provided for white students would not meet the test of equality because white and Chinese students were different enough, so that they required a different kind of education if they were to achieve the same result.
Lau v. Nichols, 414 U.S. 563 (1974).
But when judges upholding segregation claimed that equal did not mean identical, they had something very different in mind. They were not suggesting that for historical reasons blacks required more resources to reach the same result, but on the contrary, that there was no point in providing more than the minimum amount; intellectually and temperamentally, blacks were considered unfit to make use of more than that, and pretending otherwise would only stoke frustrated ambitions and create divisions in an otherwise harmonious society. Thus, in these situations, inequality would be construed as equality; each race would be treated according to its strengths and limitations, in a word, equally. Differences would not reflect discrimination, but merely inherent differences between the races, justifying greater resources for one than the other. Which naturally raises the question of how much inequality will be tolerated and for what purpose? In the South, of course, the degree of inequality was very substantial, its purpose was to maintain white supremacy, and the advantage always lay with the white population.
But this does not implicate the Fourteenth Amendment's equal protection clause, Brown adds, because it refers only to political and civil equality, which the Louisiana law explicitly guarantees, and not to social equality; because black inferiority is so fundamental and obvious there is nothing government can do to remedy it. This distinction between civil/political rights and social rights was common at the time, and in support Brown cites
Brown, supra note 44, at 544.
a well known case, Roberts v. Boston (1849).
Roberts v. City of Bos., 59 Mass. 198 (1849).
However, this case was decided nearly two decades before the adoption of the Fourteenth Amendment, which in any case, makes no mention of the distinction between different kinds of rights.
Brown's opinion culminates in a passage that over a century later remains astonishing: “We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
Supra note 44, at 551.
“Laws . . . requiring . . . separation [of the races] in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other.”
Id. at 544.
“Either race” – so whites should be reassured that segregation does not denote their inferiority.
A few years later, Justice Brewer noted that as the Thirteenth Amendment did not single out blacks, its ban on slavery “reaches every race [with] the Anglo-Saxon . . . as much within its compass as . . . the African.” Hodges v. United States, 203 U.S. 1, 17 (1906). Of course, slaves could be of any color, provided it was black.
Why, then, would the colored race construe segregation as degrading? As a transplanted Northerner living in Washington, a Southern city, it could hardly have escaped Brown's notice that under segregation, blacks were almost universally treated as inferior to whites. They were expected to step off the sidewalk if a white person approached, never to enter a white person's house by the front door, always to be called by their first names. The inference was obvious. If somehow, all this bypassed Brown's notice, still there was Harlan's famous dissent: “Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied or assigned to white persons. [It] proceeds on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.”
Brown, supra note 44, at 557, 560.
Brown did not even take judicial notice of slavery nor inquire as to the true, obvious purpose of the Separate Car Act.
In dismissing the underlying fallacy, Brown offers a counterfactual: “if the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms . . . the white race . . . would not acquiesce in this assumption.”
Id. at 551.
The obvious explanation, which he does not entertain, is that it had always assumed its superiority; when a quarter century earlier found blacks able to wield power in Southern legislatures, whites did not regard this as a natural progression that merely put the shoe on the other foot. Indeed, Brown goes on to say, “If one race be inferior to the other socially, the Constitution of the United States cannot pit them upon the same plane.” In other words, if segregation marks blacks as inferior socially, it is not really because that is their inexplicable conclusion; it is because it is true.
Brown writes as if racial segregation is indistinguishable from gender segregation in bathrooms or age segregation in grade schools. Yet segregation was never about separation. Blacks and whites interacted more and lived closer together in the South than elsewhere in the nation. Instead, segregation was about power and the effective enforcement of white supremacy.
Id. at 552.
Did blacks consent to such an arrangement? The question never seems to have occurred to Brown.
Brown's opinion reads like a nineteenth century exercise in Newspeak. A reader dropped in from behind a veil of ignorance would have no inkling of the historical treatment of blacks in America. Slavery is barely mentioned; prejudice and the anti-black terrorism of the period in which it was written are omitted entirely. The law on its face favors no race, and we must take it at that. All this despite Brown's certainly having been old enough to remember slavery and the Civil War he lawfully avoided with a legal payment of $850. Was segregation, a system that singled out slaves and their descendants for special treatment, related to slavery? The question never arises. Did segregation entail an official judgment of black inferiority? In a perfect example of Orwell's insincere writing, Brown answers, only if blacks insist on seeing it this way (though elsewhere he admits that in this they are right), adding bogus precedents to prove it. It is as if all relevant history has been thrown down Orwell's memory hole and replaced by a fantasy of benevolent race relations Our ignorant reader could only wonder, stupefied, at Plessy's complaint, revealed as an eccentric act unmoored to reality, past or present.
In the end, we cannot avoid wondering whether history would have been substantially different had the Court decided Plessy in favor of Plessy. A few years later, in Giles v. Harris (1903), involving massive black disenfranchisement in Alabama, the Court acquiesced, with the excuse that “the great mass of the white population intends to keep the blacks from voting [and] a name on a piece of paper will not defeat them.”
Giles v. Harris, 189 U.S. 475, 488 (1903) (Holmes, J.).
Perhaps Brown had this thought of judicial futility in mind, as well. Certainly, it would be naïve to believe that the Court could have held back the tide of white supremacy by itself. Thus, for Brown, the power of language with its metaphors, reassurances, and citations, is transformed both into a language empowering white supremacy and a language acknowledging the weakness of courts.
William Orville Douglas and Griswold v. Connecticut
Which brings us to William Orville Douglas, associate justice of the United States Supreme Court from 1938–1975. Can there be a less Orwellian judge than Douglas? Famously cantankerous, he was a notorious loner and iconoclast, who in nearly forty years on the Supreme Court seems to have developed no strong positive attachments to any of his colleagues.
Melvin I. Urofsky, Getting the Job Done: William O. Douglas and Collegiality in the Supreme Court, in He Shall Not Pass This Way Again: The Legend of William O. Douglas 37–41 (Stephen Wasby ed., 1990).
Influencing their thoughts or playing at court politics, like, say, Frankfurter or Brennan, was foreign to his nature. It might be tempting to trace this to his hardscrabble childhood, which he described in best-selling memoirs
William O. Douglas, Go East, Young Man: The Early Years (Random House, 1974).
as poverty made worse by polio but overcome in time for military service in Europe in World War I, college, riding the rails across country to law school at Columbia, a professorship at Yale, the chairmanship of the Security and Exchange Commission, and an appointment to the Supreme Court at age forty, the youngest Justice since Joseph Story over a century and a quarter earlier.
However, we know, courtesy of a devastating biography, that the persona that Douglas carefully crafted was full of lies. He was not born in poverty; he never contracted polio; he was never on active military duty in Europe; he was no Depression hobo.
Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas ch.37 (2003).
We also know that the common decency that Orwell celebrated found little echo in Douglas’ treatment of family and friends, in his womanizing and drunken binges, in his preoccupation with money, in his indifference to his children (despite an award as father of the year). Indeed, his life was littered with cruel, cold betrayals, as he discarded one relationship after another. Viewed from a distance, it is hard to imagine why someone apparently so little interested in the esteem of others would work so assiduously to concoct so false an image. Which suggests that Douglas may have been much hungrier for esteem than he liked to appear.
But our concern is not how or why Douglas constructed such a fake persona, but how this Orwellian pattern permeated his work on the Court. It is here that his cynical use of language is on display. Consider Griswold v. Connecticut (1965), probably his most important opinion, which established a constitutional right to privacy. The case concerned an 1879 Connecticut statute that made it unlawful to use any drug, medical device or other instrument furthering contraception or assisting, abetting, counseling, causing, or commanding such use.
Gen. Stat. CT. §§. 53–32, 54–196 (1958 rev.).
Estelle Griswold, executive director of Planned Parenthood in Connecticut instructed married couples in public sessions on the use of contraceptives, and was convicted under the law and fined $100.
An earlier effort to challenge the statute was rejected by the Court as insufficiently ripe. Violations of the law had been prosecuted only once, fifty-one years earlier, and there appeared to be a tacit agreement that this would not occur again. The Court seemed to have assumed that an absence of prosecutions meant that the law was ignored, but it might instead have signaled conformity so widespread that prosecutions were unnecessary, for example, laws banning cannibalism. Poe v. Ullman, 367 U.S. 497 (1961). Douglas dissented, maintaining that the law violated constitutional guarantees of free expression and privacy, which he located in the liberty provision of the due process clause. Id. 509, at 514, 517. It seems that the law was safely ignored by private physicians, but that clinics followed it, leading to a disproportionate impact on minorities, the poor, and the under educated that raised equal protection issues. On the class implications of Griswold, see Cary Franklin, The New Class Blindness, 128 Yale L. J. 2, 18–46 (2018).
After briefly passing on the question of standing, Douglas announced, “We do not sit as a super-legislature to determine the wisdom, need or propriety of laws that touch on . . . social conditions.”
Griswold v. Connecticut, 381 U.S. 479, 482 (1965).
With this, he attempted to distance his opinion from the notorious Lochner case, where a majority fashioned liberty of contract from the contract clause, the takings clause, and the due process (property) clause.
Lochner v. New York, 198 U.S. 45 (1905).
Instead, he chose more benign examples, “the right to educate a child in a school of the parents’ choice” (Pierce v. Society of Sisters
Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510 (1925).
) and “the right to study any particular subject or any foreign language” (Meyer v. Nebraska
Meyer v. Nebraska, 262 U.S. 390 (1923).
); neither of these rights is mentioned in the Constitution but both were recognized by courts.
Supra note 86, at 481–82.
He also noted that the First Amendment's freedom of assembly had been read by courts also to include freedom of association.
Id. at 483.
These cases he cited, he concluded, suggest that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
Id. at 484.
Though privacy is not mentioned explicitly in the Constitution, we can infer it, he said, from the First Amendment's freedom of association, the Third Amendment's prohibition against quartering soldiers, the Fourth Amendment's protection against unreasonable searches and seizures, the Fifth Amendment's self incrimination privilege, and the Ninth Amendment's broad reminder that not all rights are listed in the Bill of Rights.
Id. Douglas had initially thought to tie privacy to a right to assemble, but Black at conference said that “the right of a husband and wife to assemble in bed is a new right of assembly to me.” Thereupon, Paul Posner, a law clerk to Brennan, drafted a letter, which Brennan sent to Douglas, that argued that a right to privacy was implicit in the Third, Fourth, and Fifth Amendments. Douglas added his own reference to emanations and penumbras. David Garrow, Liberty and Sexuality 246 (1994).
“The sole aim of a metaphor,” said Orwell, “is to call up a visual image.”
Orwell, supra note 18, at 134.
A penumbra, with its illumination from the sun mostly hidden by a lunar eclipse, clearly calls up a vivid visual image.
Though Douglas’ “penumbra” is the most famous use of the term, it had occasionally appeared in opinions in earlier years. Burr Henley, “Penumbra”: The Roots of a Legal Metaphor, 15 Hastings Const. L. Q. 81 (1987). Justice Thomas hung a plaque in his chambers reading, “Please don’t emanate in the penumbras.” David J. Garrow, The Tragedy of William O. Douglas, Nation, (Mar. 27, 2003), https://www.thenation.com/article/archive/tragedy-william-o-douglas/.
But is the metaphor helpful? Emanations flow from the entire circular penumbra, in other words, innumerable emanations flow from a single sun in innumerable, 360 degree directions. Douglas’ point, however, is precisely the reverse, not that the emanations are widely dispersed but that they all are concentrated and point to one thing, a right to privacy. The metaphor, in short, does not illustrate the phenomenon it is supposed to.
Ordinarily, too, metaphors use the familiar to clarify the unfamiliar. For example, we might say that an academic manuscript reads like a novel, that is, that unexpectedly it is easy and enjoyable to read. The metaphor works because we all know what a novel is. But “penumbra” is not a familiar term. In fact, its look-at-me quality may be exactly what Orwell meant, when he disparaged pretentious metaphors. The problem is not simply that they are snobby affectations; more importantly, their unfamiliarity is a deliberate distraction that takes our attention away from the subject at hand. Here, “emanations from a penumbra” is designed to divert us from noticing that none of the amendments cited is remotely related to the facts of the case. Nor does it address the retort that the Framers’ failure to mention a general right to privacy may have meant that they approved only the narrower rights Douglas listed nor that the Third Amendment had not been interpreted by the Court to apply to the states and so, did not belong on the list.
Nor, perhaps most seriously, does a reference to a right to privacy adequately define what the term means.
Thomas Halper, Privacy and Autonomy: From Warren and Brandeis to Roe and Cruzan, 21 J. Med & Phil. 121 (1996).
Douglas’ usage implicitly suggested a widespread consensus, but even at the time the leading authority on torts had described the private law of privacy as consisting of no fewer than four distinct dimensions.
William L. Prosser, Handbook on the Law of Torts 832 (3d ed. 1964).
Had the right been embodied in a constitutional amendment, judges could parse the text or examine its legislative history to determine the contours of its application. Clearly, it would forbid the government's reading my diary or videoing my morning shower without a warrant. But would it apply to a woman's right to choose to have an abortion,
Roe v. Wade, 410 U.S. 113 (1973).
or one's right to decide when to die
In re Quinlan, 70 N.J. 10 (1976).
or to engage in homosexual sodomy?
Lawrence v. Texas, 539 U.S. 558, 598 (2003).
Without a text to guide it, the Court is on its own, for as Black noted in dissent, “’privacy’ is a broad, abstract and ambiguous concept.”
Supra note 86, at 509.
Ironically, courts have generally shrunk from such broad grants of authority, perhaps from fear of generating a backlash. One reason the forgotten Ninth Amendment
Bennett B. Patterson, The Forgotten Ninth Amendment (1955).
has been pretty much forgotten is that it offers no instructions on how courts should identify rights not enumerated in the Constitution. In Griswold, Douglas does not flee from what Orwell would surely call a “lack of precision” deriving from a “mixture of vagueness and sheer incompetence.”
Orwell, supra note 18, at 129.
Douglas follows the emanations passage with a hypothetical of police storming the “sacred precincts of marital bedrooms”
Supra note 86, at 485.
in search of contraceptives, ignoring the fact that the Connecticut law had gone unenforced for generations and as if bedrooms had legal status as sanctuaries. If I were suspected of shooting my wife, would the police be barred from searching our bedroom? More pointedly, the facts of the case did not concern the use of contraceptives in a marital bedroom, but rather access to information concerning their use to be provided in an open forum. This, in turn, raises the question as to whether privacy can exist in public.
That it can is argued by William C. Hefferman, Privacy Rights, 29 Suffolk U. L. Rev. 737, 742 (1995).
By disregarding the element of seclusion, was Griswold also renouncing privacy claims? It is an interesting question, but Douglas never paused to consider it. The bedroom hypothetical, in any event, appears to have been inserted to gin up outrage, but in truth was apropos of nothing.
The opinion closes with an homage to marriage—the joke was that Douglas thought so highly of marriage that he married four times—a subject he had first discussed in Skinner v. Oklahoma, over twenty years before. In that case, involving the compulsory sterilization of a chicken thief, Douglas had announced a right to marry and procreate, though the state had not prevented Skinner from marrying.
Skinner v. State of Oklahoma ex rel. Williamson, 316 U.S. 535, 536, 541 (1942).
In Griswold, he speaks of marital privacy not as a corollary of the spousal privilege, but in words that might better come from clergy at a wedding. “Marriage is a coming together for better or for 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 in living, not political faiths; a bilateral loyalty, not commercial or social projects.”
Supra note 86, at 486.
All that is missing is 1 Corinthians 13:4–8. It is perhaps a perfect example of what Orwell called “modern writing at its worst [which] consists in gumming together long strips of words which have already been set in order by someone else, and making the results presentable by sheer humbug. The attraction of this writing is that it is easy.”
Orwell, supra note 18, at 134.
The irrelevance of marriage to the contraceptive ban was made clear a few years later, when the Court struck down a prohibition on distributing contraceptives to unmarried persons
Eisenstadt v. Baird, 405 U.S. 438 (1972).
and then to minors.
Carey v. Population Services International, 431 U.S. 678 (1977). Arguably, Griswold's focus on marital privacy reflected a traditional common law notion that only between heterosexual married couples is sex lawful.
By this point, one wonders if the real issue had not been privacy but a subset of privacy, sexual freedom.
See David B. Cruz, “The Sexual Freedom Cases”? Contraception, Abortion, Abstinence, and the Constitution, 35 Harv. C.R.-C.L. L. Rev. 299 (2000).
Douglas’ opinion is unencumbered with the conventional judicial focus on the facts of the case, the text of the statute and the Constitution, the relevance of precedents, and deference to lawmakers. Indeed, the entire opinion establishing a fundamental right in a controversial fashion consumed only six pages, of which two were devoted to the facts of the case and standing. This was by no means unusual for Douglas, who flouted convention in these respects, as he did in so many other aspects of his life. After barely a year on the Court, for example, he wrote a far reaching aggressively pro-government opinion in a tax case,
Helvering v. Clifford, 309 U.S. 331 (1940).
when even a friendly observer admitted, “there was little, if anything, in the statute to support it.”
Erwin N. Griswold, Foreword, in Bernard Wolfman et al., Dissent without Opinion: The Behavior of Justice William O. Douglas in Federal Tax Cases (1973).
His opinion was seven pages, of which nearly three covered a statement of the facts.
Whether termed free-wheeling or sloppy, Douglas’ approach to opinions granted him vast discretion in his result oriented arguments. What is obvious in Griswold is that the entire opinion is an Orwellian exercise in misdirection. Douglas declares that the Court does not sit as a super-legislature and then fashions an opinion as bold as one from a super-legislature. He denies that the Court has adopted the reasoning of the notorious Lochner case, and then adopts the reasoning of the Lochner case.
Arguably, the Lochner decision was anti-democratic, in that it opposed a popular majority supporting state regulation of labor, while Griswold was pro-democratic, in that it opposed a law that had long fallen out of popular favor.
Sentimental talk about marriage and the sacred marriage bedroom are further distractions. “Privacy” is used in a way suggesting that there is a broad consensus on its meaning, when beyond a few basics, there was no consensus at all. The power of language empowered the Court.
Some Conclusions
It will strike many as odd to pair Plessy with Griswold, the former being one of the Supreme Court's most vilified decisions
One commentator located Plessy among a consensus anticanon. Jamel Greene, The Anticanon, 125 Harv. L. Rev. 379, 412–17 (2011). Among the innumerable hostile commentaries, see, e.g., Michael W. McConnell, Originalism and the Segregation Decisions, 81 Va. L. Rev. 947, 980–82, 1120–31 (1995) and Cheryl L. Harris, Race Jurisprudence on the Supreme Court: Where Do We Go from Here? In the Shadow of Plessy, 7 U. Pa. Const. L. 867 (2005).
and the latter often an occasion for celebration.
E.g., Priscilla J. Smith, Contraceptive Comstockery: Reasoning from Immorality to Illness in the Twenty-First Century, 47 Conn. L. Rev. 971 (2015); Eugene McCarthy, In Defense of Griswold v. Connecticut: Privacy, Originalism, and the Iceberg Theory of Omission, 59 Willamette L. Rev. 335 (2018).
In Plessy, Brown's language was at the ugly service of white supremacy; in Griswold, Douglas’ language elevated privacy to a constitutional right. Who now would speak out for racial segregation or against privacy?
However, an exclusive focus on results hides an ends/means problem. We must concern ourselves not only with the decisions, but also with the paths to the decisions, for if they are not the right paths, they may in other contexts take us to destinations we would do better to avoid. Both opinions appeared when Orwell was not on the scene, Plessy before he was born and Griswold after he died. But it is not difficult to imagine his reactions upon reading them. The pompous language, abstract and disconnected from reality when it does not literally deny it. The inapposite metaphors designed to deflect our attention away from the issue at hand. Above all, the lethal insincerity, that is, the cynical dishonesty that runs through the opinions like fat in a sausage. For though we may sometimes talk of the “prison-house of language,”
Friedrich Nietzsche, qtd. in Fredric Jameson, The Prison-House of Language (1972).
imagining how it may confine us without our even knowing it, these opinions are not of that type. Brown and Douglas, it is clear, were confined in no linguistic prison-house, but were quite free in the choices they made.
Meanwhile, ignored by both justices was the central question of the proper role of the unelected, unaccountable Court. Should it take upon itself the job of updating a Constitution it feels has become out of date? The Thirteenth and Fourteenth Amendments addressed the question as to the status of the freed slaves and their descendants. Many issues were left undecided, it is true, but returning blacks to a state of subjugation was clearly not the goal of the framers of the amendments. But by 1896 times had changed, and as we say today, it was time to move on. Reconstruction and the era of relative black freedom were dead and gone. Better, then, to adjust to the new Southern reality. Thus did Brown give the amendments an interpretation in Plessy that Southern whites could only applaud. Had they lost the war only to win the peace?
So, too, had attitudes on contraception changed by 1965, partly due to the revolutionary development of the birth control pill. The Connecticut law, which not even its advocates before the Court defended as sensible and up to date, lagged far behind. What, if anything, should the Court do about it? We might assume that if a law has fallen so out of favor, the normal workings of democracy will lead to its legislative repeal. And yet the law was still there. Does this suggest that it is not as out of favor as it appears? Or that its persistence reflects some flaw in the democratic process? Does the obvious importance of the law require the Court to intervene and rectify the anomaly? Or does its importance instead mean that its resolution must be found in the ordinary political process? For Douglas, the law was ridiculous, the Court had the power to get rid of it, and its very ridiculousness created an opportunity to make a larger point about the constitutional right to privacy. The obvious irony is that Douglas’ Orwellian manipulation of language is at the service of a value Orwell cherished, privacy
As we read Plessy and Griswold, it is hard to avoid asking: Do we really want judges to base constitutional rulings on grounds so flimsy that the chief purpose of their opinions is to disguise this fact? To save us from absurdity, a living constitution perspective may sometimes be necessary. Article II makes the President commander in chief of the army and navy; it would be bizarre for courts to rule that a constitutional amendment would be needed to cover the air force. But if the issue, instead, is an important matter of policy, say, racial segregation or the constitutional stature of privacy, it all becomes problematical. We can hardly satisfy ourselves with the assumption that courts will do the right thing. But that, apparently, is what Brown and Douglas would have us do.
