I would prefer to restrain from giving personal moralistic views and keep the replies restricted to questions of law.
Even the most moralistic (modern “natural law”) and non-moralistic (“positivistic”) legal theorists today share a common moral goal: liberty/ autonomy. To prioritize individual liberty/ autonomy is to posit a common good and demand that society be structured for its promotion. We see this, for example, in the contemporary marriage laws in many common law countries, which allow either spouse to demand a unilateral “no-fault” divorce, prioritizing the liberty/ autonomy of the departing spouse over the other spouse’s desire for community and stability. Liberty/ autonomy in the sense of self-actualization and self-definition is taken as a metaphysical highest good (or right), ordering other, lesser goods (or rights). As the U.S. Supreme Court mused in its decision in Planned Parenthood of Southeastern Pennsylvania vs. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” We can and should, on this view, define and choose the nature and meaning of our own existence. And thus the Constitution, ought to be interpreted principally as an enactment for protection of individual liberty/ autonomy, must uphold this choice making quality of liberty/ autonomy, by forbidding laws that might intrude thereon. Academics, too, insist on the link between liberty/ autonomy and human dignity; Neumann, for example, insists on the necessity of privacy rights for human dignity, though he denies that this is a moral claim. Ref. Michael Neumann, The Rule of Law : Politicizing Ethics 56–57 (2002).
Thus, there appears to be at least one knowable common good for modern legal theorists: maximum individual liberty/ autonomy. Moreover, this moral good is found through implicit rejection of the fact/ value distinction. To prioritize individual liberty/ autonomy is to derive the “ought” of choice maximization from the “is” of the capacity to make free choices. Only if we assume that choice making is central to our human nature — our being, our essence, our conscience as it were — can such a view make sense. As a result of this form of reasoning, individual liberty/ autonomy is taken as a fundamental, grounding ideal (one might say a grundnorm) of the Constitution, the implications of which are to be and will be unpacked by judges, so long the rule of law and justice exists, but the further bases of which are not open to question.
Every constitutional guarantee is burdensome to society because it places a barrier between the individual and the State. Every fundamental right that we have come to regard as indispensable involves this tension between individual freedom and State control. The fundamental common law right to remain silent and have counsel present during a custodial interrogation, for example, has been assailed by no less a jurist than Justice White: "In some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him." Similarly the matter of matrimonial or divorce laws is usually at the forefront of various emotional issues that periodically confront society, especially the legal community. Nevertheless, as guardians of the Constitution, the judges have an obligation to interpret the Constitution, irrespective of their personal feelings, so as to carry out not merely the intent of the framers of the Constitution but also the doctrines and laws of higher order that make up the Constitution. If judges abandon this obligation, the public will view courts as political institutions, their decisions less rooted in the law than in the personalities and politics of the individual judges, and will view the courts as not expounding the law but rather as handing down social policy in judicial dress, or giving fundamentally political judgments dressed in legalistic garb, to suit the perceived needs of the moment.
Now in light of the above discussed so far, let us try to understand and interpret the relevant portions of the Constitution, enactments and questions of law directly connected to the topic of this discussion.
