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Does the Constitution Protect Your Privacy?

In abortion and gun rights, are people consistent about legal reasoning?

Key points

  • Many liberals believe a Constitutional right to privacy protects abortion rights.
  • Many conservatives believe the Constitution means just what it says, nothing more.
  • Perhaps most attitudes about the Constitution are a result of motivated cognition.
  • Are Supreme Court justices any less prone to motivated cognition than the rest of us? (I doubt it.)

With the Supreme Court's Dobbs leaked draft decision poised to overturn Roe v. Wade in the news this week, it got me thinking about how people think about our Constitutional rights.

Some people claim to have the judicial philosophy of textualism, they think the Constitution should be interpreted according to what is in the text. Another similar position is originalism, originalists think that the Constitution should be interpreted to mean what the Founders meant it to mean. And living constitutionalists think the Constitution should reflect the times we live in, not the 1700s.

Each of these philosophies has certain limitations. Do words mean today what they meant in the 1700s? How are we to be sure what the Founders meant (people read their other writings, like the Federalist papers, to get clues). Finally, if the Constitution can be changed willy-nilly, what’s the point of having a document at all?

Do We Have a Right to Privacy?

A lot of online arguments I’ve been seeing this week, since the leak of the Dobbs decision, have to do with rights in the Constitution. People say if the Constitution doesn’t mention automobiles, do we really have a right to drive cars? Their point is that we can have protections that are not explicitly mentioned in the Constitution (indeed, see the 9th Amendment).

What about a right to privacy? This is critical because, in the original Roe v. Wade Supreme Court decision, one (of the several) reasons why abortion was legalized is because the majority believed that the Constitution affords us a right to privacy, even though it never says that explicitly. Rather, some people believe, the Constitution implies that we have a right to privacy when it forbids groundless searches (4th Amendment), or prevents the government from forcing us to quarter soldiers in our homes (3rd Amendment), and others. This is sometimes referred to as a “penumbral” right to privacy.

When it comes to abortion, pro-choice people seem to believe in this right to privacy, while pro-life people apparently do not. But what if the privacy shoe were on the other foot?

Is Constitutional Law All Motivated Cognition?

When I took Constitutional Law, case after case seemed to be the conservative justices finding convincing arguments that favored conservative outcomes, while the liberal justices always found the arguments favoring liberal outcomes to be more compelling. As a social psychologist, I wondered, can people really be this consistent and objective? Were the conservatives really just taking abstract ideas about textualism and originalism and always arriving at conservative decisions, or was the converse for the liberals? Or, is it all motivated cognition? Can ordinary people, or even the brightest legal minds of our generations, Supreme Court justices, get past their own biases and render fair decisions?

The idea of motivated cognition tells us that we are not the unbiased, logical decision-makers we would often like to think. Instead, our reasoning processes are affected by our goals and values. And rather than knowing that we are thinking in a biased way, it all seems perfectly natural to us— arguments that advance our own interests just seem more logical and compelling to us. And that is what seems to be the case from psychologist Geoffrey Cohen, nearly two decades ago when it comes to policy preferences.

When it comes to abortion, conservative supreme court justices and people who believe in pro-life find it more logical that if the Constitution doesn’t really say we have a right to privacy that would extend to abortion, maybe we don’t.

Privacy and Gun Rights?

I think this begs for a psychology experiment though. What if some liberal state, like California, were to pass a law that everyone has to register any firearms they own with their local police (there may well already be laws like this in California for all I know; in Arizona, you probably have to register with the police if you don’t own a six-shooter, like the cowboys and cowgirls we are in this state).

I could well imagine conservatives arguing that their guns should be private, not just because this is an "infringement" prohibited in the 2nd Amendment, but because the Constitution protects privacy (it does protect individual gun ownership, despite that pesky text about a well-regulated militia), at least according to the Heller decision in DC: ) and the McDonald decision that applies that to the rest of the states, since a decision regarding DC would not necessarily apply to the states. If this were the case, it seems to me that people read into the Constitution what they want for a given outcome in a particular context.

Dispassionate Legal Reasoning?

Closing my argument, I’d really like to know how much people’s reasoning about their rights in the Constitution, both laypeople and Supreme Court justices, are driven by abstract principles like textualism, or whether they are really just finding reasons and loopholes to get to the decisions they wanted to all along.

References

Motivated Cognition and Fairness: Insights, Integration, and Creating a Path Forward, March 2017, Journal of Applied Psychology

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