The Vortex of Opinion

The great Terrance Dicks, referring to the time he was Script Editor of Dr Who, pointed out that the show had nothing like a continuity guide at that stage: ‘continuity was what I could remember of my predecessor’s shows, and what my successor could remember of mine’. I rather yearn for those days, before the series became run by uberfans endlessly dropping in references to a line in an obscure story from 1984, and then not even the good bits. I was almost tempted into commenting on a series of videos posted on Youtube by a young Dr Who fan who clearly knows far more about it than I ever will, and who was trying to prove that some plotline or other was foreshadowed back to the Hartnell era: this, in a show that often can’t maintain a consistent narrative across one episode, let alone sixty years. But I reasoned that they are looking for different things in a TV series from me, and refrained.

It struck me, facetiously, that Christians arguing about the Bible, or US lawyers debating what is or isn’t in the Constitution, are a bit like Dr Who fans discussing continuity, only less acrimonious: it’s just as well they don’t have access to ballistic weapons, I can tell you. All three groups are, in similar ways, working to resolve a problematic text, to draw conclusions from it about cases which are not necessarily explicitly mentioned in it.

Now I’ve enjoyed Dr Who since I was a child, if you can describe as ‘enjoyment’ being reduced to a quivering wreck watching the end of the first episode of Pyramids of Mars in 1976 as Marcus Scarman kills Namin by apparently roasting him from the inside out (‘I bring Sutekh’s gift of death to all humanity!’ – unsuitable for almost anyone, let alone children); I have of course a professional interest in scriptural theology, and a fascination with law and the role it plays. In all three areas I find myself something of a moderate textual conservative: I would prefer at least to begin from what’s patently in the text, rather than draw in matter from elsewhere or use the interpreter’s own preferences. I like canon to have clear boundaries.

When, about a year ago, I decided to look up what the 1973 US Supreme Court judgement in Roe v. Wade actually included, I was rather shocked at how tendentious it seemed to be. Clearly abortion itself couldn’t have been explicitly mentioned in the Constitution, and I realised the Court’s decision rested on reading into that two-century-old document a right of privacy. Was that right really there? Not in so many words, of course. I found I had some sympathy with what has eventually, and inevitably, emerged as the 2022 Court’s criticism of its predecessor of 1973’s analysis: you must rely predominately on what is explicitly in your legal text, or you hand far too much authority over to the opinions of justices arbitrarily sampled at any particular moment. It’s also a very bad move for a polity to delegate decisions on contested matters to courts because the politicians can’t or won’t reach a judgement about them: that generates resentment and powerlessness, and you can see where it takes you.

But equally clearly you can’t be too much of a textual conservative. The US Constitution’s very opening words, ringing as they are, about all men (sic) being created equal and endowed with inalienable rights, were never intended to apply to black people, for instance: they were penned and signed by cheerful and unrepentant slaveholders. You can’t simply rest content with what that document’s drafters either actually wrote, or intended by what they wrote. As time goes on, our interpretation of what those words mean and imply changes, and changes quite legitimately; which means there has to be some means of bringing those developing insights to bear on the text.

The 1973 Court relied on the knotty and very contested doctrine of ‘substantive due process’, which I think I only just about understand. The 5^th and 14^th Amendments to the Constitution both state that citizens shall not be deprived of life, liberty or property without ‘due process of law’. This tiny but momentous phrase is understood to have two applications. First, ‘due process’ means, very basically, that all such deprivations must be valid, fair and impartial, decided by legitimate authority and properly enacted. There is plenty of scope to discuss what that actually means. Secondly, such deprivations must be ‘lawful’: that is, not just procedurally correct, but in accordance with the whole body of law. It’s that concept that allows the Constitution to be interrogated by changing ideas derived from legal precedent or legislative action, and prevents the legislature from simply doing anything it wants (I’m not sure UK law, controlled as it is by the idea of Parliamentary sovereignty, contains such a safeguard). The 1973 Court decided that US law, taken as a whole, did contain a right to privacy and therefore to procure termination of pregnancy, which, given the state of the various legal provisions across the States at that time, was quite a leap.

Nowadays those who take a liberal view of abortion rights would almost certainly rely on different arguments from those of fifty years past; we might talk about the notion of ‘bodily autonomy’ as a fundamental principle of law in a free society, and I suspect it would be far easier to discern the outline of that in the legal practice of the US than a right of ‘privacy’ even if, in this practical case, they amount to the same thing: of such nice distinctions are legal arguments made. Even if the 2022 Court has criticised the 1973 one for its quasi-legislative investigation of the gestational process, any bench grappling with this issue would still have had to decide what the Constitution thinks ‘life’ means, and would have to do something very similar to what happened fifty years ago.

I did cast an eye over the 2022 judgement, and I’m afraid the Court reveals its true colours when Chief Justice Thomas includes the 63 million abortions carried out since 1973 in the ‘harms’ wrought by reckless application of the ‘substantive due process’ doctrine. Beneath its superficial concern for judicial correctness, and no matter what sympathy I as a ‘textual conservative’ might feel for its arguments, the 2022 Court is a partisan bench selected for partisan purposes, or rather, for this one purpose, posing as a defender of juridical purity. It has no interest in uncovering a principle of bodily autonomy in US law, as a more liberal bench might, even if it might be there. 

We all know that interpretation of Biblical texts, especially about sexual and gender matters at the moment, is conditioned by what people want to find in them. In the same way, the young Dr Who fan I almost tackled on Youtube has decided that whoever queries the current trajectory of the series, no matter what reason they may state, is in fact a sexist bigot covering up the fact that they can’t get past a woman being cast as the central character. That fan may well, in many cases, be right. The interpreters of your legal code also bring their own ideas to bear on it, and how you choose who you get to do it - in the US, one single elected politician abetted by a gerrymandered legislature, or, in the UK, basically the legal profession as a whole - is perhaps even more important than who decides where the Doctor’s fezzes fit in the narrative.