What is more important in law - the principle, or the analogy?
Principles can be written down, described with simplicity, and are easy to test our behavior against. This is the heart of the argument for a “plain language” approach to the Constitution. Read the written law, do as it says, and the law has been obeyed. Principles like “Congress shall make no law respecting an establishment of religion . . .” and “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . .” have the authority of hard and fast rules. They can be described as simple laws that are meant to have force which follows the meaning of their words.
But this not all there is to law. Law is, by necessity, the application of facts to determine whether behavior will be punished or protected. Consistency in application to different situations makes law a concrete and tangible thing - not just an abstract rule that applies in some situations and not in others depending on how one imagines it ought to apply in a given instance. Or rather - no case is decided (or even ought to be decided) wholly without analogy.
Analogy is what sets Judging apart from “writing” law.
So what am I really talking about? I am really talking about Roe v. Wade. The two sides of the debate that have been locked in a winner take all argument whether a privacy right is granted in the Constitution. But the corrosive effect of that case is not on the “right” it grants - Roe is having a corrosive effect on what society expects from judges. Increasingly, we expect that judges will submerge analogy in favor of principle.
Roe was built, not on enumerated principle, but on an analogy. The analogy was this: The Constitution protects the right to possess obscene material, the right to be free of an unreasonable search, the right to have a telephone conversation in a public place without the police listening, the right to have the government not to rummage personal papers to get incriminating evidence, the right not to have your telephone tapped, the right to have contraception, and the right to teach a foreign language. Not to mention rights to interracial marriage, procreation (even of criminals), and the right to instruct our children in religious schools.
When the Court compared those rights to abortion, rights to abortion seemed more similar than dissimmilar - one might call it a privacy right, or perhaps a right to personal autonomy. But, it is a right to be free of criminal prosecution. Thus, the right to control women's reproduction (albeit medical proceedure) is protected by the Constitution; this is similar to the other unenumerated rights that the Constitution protects.
Of course, Roe did not rest there - after all, a different analogy pulled in the other direction. If killing an unborn child after its “quickening” is murder, women do not have an unrestricted right to control reproduction - at some point the women’s right must not be absolute.
Despite the enumerated concept of privacy, the reality of Roe was the analogy. This circumstance was similar to other circumstances. Reasoning by analogy has its weaknesses. A poorly drawn analogy, which is one that cites dissimilar facts or dissimilar law, should be rejected. However, analogy is a long historical record for Constitutional interpretation and, until Roe, a trusted method of determining the text of the Constitution.
But no longer. After Roe the debate has shifted. Anger over result has lead a popular movement to overturn Roe as “wrongly decided”. The confusion over the result has been to attack the method. A turn toward the text of the Constitution and interpretation based on the drafter’s intent through the use of the express language. There has been an attacks on the proverbial strawmen - “the living Constitution” - as putting the personal values of the judge into the text of the Constitution. This is wrong.
To put one’s values into the text all that is required is to interpret the language of the Constitution afresh every time a case is decided. Decide, for instance, that the often neglected second amendment protects an individual’s right to a full automatic assault rifle. The language “the right of the people to keep and bear Arms, shall not be infringed” supports the conclusion. You get to keep your military style weapon. Suppose that you don’t think that this is so - decide then that no one should have guns at all. The language “A well regulated Militia, being necessary for the security of a free State” gives the power to states to decide who will have guns (state militias) and who will not (everybody else). The personal values of the judge are not constrained by this kind of language debate.
But the judge’s values are constrained by the analogy. Analogies link the text of the Constitution to consistency and predictability. Concerning consistency, cases decided under the various facts over a long period - precedent - prevents wildly different interpretations from taking hold suddenly. Likewise, predictability is easily accomplished when precedent guides a pathway through the abstract language in the Constitution.
This is the real living Constitution - the Constitution of analogy. When the framers of the Constitution ratified its language, the courts began to interpret and apply its provisions. The analogies that these cases built up around the language of the Constitution. What makes the Constitution modern is not that we place in Constitutional language interpretation of what the language of the Constitution means today, but that yesterday a case was decided that established the meaning of the Constitution for tomorrow.