Gnostic Due Process

Abstract

Griswold v. Connecticut, a defining moment in modern American constitutionalism, a visionary reading of the Bill of Rights coils for the leap to substantive due process. On the far side of the leap-our side-both Roe v. Wade and Bowers v. Hardwick have served to measure the legitimacy and the reach of Griswold's vision. It is a mistake, however, to make the Court's later cases about abortion or homosexuality, however one appraises the adequacy of their outcomes or justifications, the measure of Griswold's importance. When Justice Douglas, writing for the Court in Griswold, offered his generous new interpretation of the texts of liberty, he at once opened and closed far wider horizons of constitutional thought. To grasp the larger significance of what Douglas said and did in Griswold, it is helpful to recognize in his opinion certain themes, aspirations, and hermeneutical moves that have always been associated with Gnosticism. Throughout this Article, "Gnosticism" and "Gnostic" will refer to a variety of traditions and speculations that flourished in Hellenistic culture, and that produced texts which (for all their differences) share common features justifying their inclusion by contemporary experts in anthologies of sources. Uncapitalized, "gnosticism" and "gnostic" refer to poetic or constitutional ideas comparable to (but not necessarily influenced by) those expressed in the ancient traditions and speculations. In offering an interpretation of Griswold as a gnostic writing, and in explaining how that interpretation brings out Griswold's wider significance in American constitutionalism, I make no claim about Douglas's own familiarity with, or intellectual indebtedness to, Gnostic religious texts. The distinction between "Gnostic" and "gnostic" is meant to maintain this analytic separation. Griswold is gnostic, I will suggest, hermeneutically: that is, in its interpretive posture toward the Constitution (and more specifically toward the Bill of Rights as the text of liberty). Douglas's interpretation of the text of liberty offers the prospect of a more complete realization of liberty's concealed meaning. Formally, Griswold's gnosticism consists in its strategy for redemptive or emancipatory interpretation: retelling the creation story in such a way as to relativize conventional accounts of the natural order and to privilege an account of a more vivid and consequential reality by backdating it, rendering it first in time and first in priority. Substantively, Griswold's gnosticism inheres in its treatment of the themes of sacred marriage, nonprocreativity, "penumbra," and "emanation." Ultimately, in viewing Griswold as a gnostic writing, we are made newly aware that stories of creation and redemption help define the ambiguities of embodiment and generation by bringing out surprising meanings in traditional, canonical texts.