Like many others, we have been frustrated by the apparent inability of much of the American public to take the Clinton scandals seriously. "It's not about sex," we have patiently repeated to our benighted friends. "It's about perjury. It's about obstruction of justice. The sex is only incidental. At most it was the motive for the crimes. You wouldn't think murder was unimportant just because the motive for the murder was sex, would you?" So goes our argument.
But our liberal friends don't see it that way. Their eyes glaze over. They repeat, echoing the starting point of our disagreement: "It's only about sex. He lied about sex. He tried to cover up illicit sex. That's it. If I don't care about the sex, it's fine with me if he covers it up. I only wish he'd covered it up more successfully."
So goes the debate, with no resolution in sight. Then one day we had an epiphany. We realized that our uncomprehending opponents were, from a certain point of view, right. The Clinton scandal is all about sex. More specifically, it emanates from sex. It falls within the penumbra of sex. Let us explain.
The source of our revelation lies in the dim past — that is, the early nineteen sixties, when both of us were thirteen-year-old junior high school students. Like millions of other boys our age, we were always alert to the possibility of getting our hands on a copy of Playboy magazine, which in those days circulated among kids on a more or less underground basis. Our principal interest, of course, was the Playmates.
But one thing set us apart from most of the other early-teenagers who pored over photos of Miss January and Miss April. In addition to looking at the pictures, we also read, with avid interest, Hugh Hefner's "Playboy Philosophy" column.
For those who don't remember, Hefner's "Playboy Philosophy" was a monthly staple of the magazine for what seemed like three or four decades. Every month, along with the girls and the fiction and the articles on stereo equipment and cars, Playboy carried a long — interminable, really — dissertation on Hefner's "philosophy." If all the installments of the "Playboy Philosophy" were collected and published in book form, they would (in volume, at least) put the Encyclopedia Britannica to shame. Hefner made Marcel Proust look like Calvin Coolidge.
The "Playboy Philosophy" may have been verbose but it was fascinating, especially if you were thirteen. Hefner painted a grim picture of the sexual landscape of early-sixties America. America was, we learned, dominated by Puritanism. Books were censored. A few jurisdictions banned, or purported to ban, the sale of contraceptives. Archaic laws against oral sex were on the books in many states, and married couples were hauled off in chains for violating them. Puritanical prosecutors and judges lay in wait to punish anyone venturing to engage in sex that was not of the approved sort. With hindsight, this was an odd perspective on the America of that era, but it described our junior high schools pretty well, and we bought it.
While railing against the Puritanism of present-day America, Hefner described the world that was struggling to be born. A world where sexual gratification was available to everyone (at least everyone who could afford a car and a stereo), and freely consenting girls would be standing on every street corner. We know now it didn't quite turn out that way, but at the time, it sounded good to us.
Most works of philosophy that run to seventy or eighty volumes are hard to summarize. Not Hefner's. He really only made one point, and he made it over and over again. The conclusion of his monthly harangue was always the same: what two consenting adults do in the privacy of their bedroom is their own business, and no one else's.
It sounded right to us. How could anyone argue with Hefner's logic? Actually, virtually no one did. And so, the concept of "two consenting adults" seeped into our awareness, smuggled between risque cartoons and semi-nude photographs of the Playmate of the Month, who was usually described as a "UCLA coed." We believed that, too.
It turned out that we weren't the only ones who absorbed and internalized the Playboy Philosophy. As the years went by, it became harder and harder to find much in America that could be described as Puritanical. Even in the junior high schools. By the early 1970s, there was probably no proposition that commanded more universal assent than "two consenting adults."
Before long, the proposition worked its way from the popular culture into more official circles. The key moment was probably 1965, when the Supreme Court ruled in Griswold v. Connecticut that a state could not constitutionally ban the sale and use of contraceptives. It was in Griswold that the Court first discerned a "right of privacy" in the Constitution. Justice Douglas wrote: "[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."
Griswold was pure Hefner, in the sense that it dealt with one of those outrageous, archaic laws that were regularly castigated in the Playboy Philosophy
In reality, the State of Connecticut made no effort to interfere with the use of contraceptives; the statute was on the books but was not enforced. Griswold was commenced by a group of students at Yale who conceived the lawsuit as a class project.
No matter. The right to privacy was born. In 1973 it received its fullest expression in Roe v. Wade, where Justice Blackmun, writing for a majority of the Court, found a right to abortion on demand among the "penumbras" and "emanations" of various Constitutional amendments which, on their face, have nothing whatever to do with abortion. The right of privacy that was devised to shield the actions of "consenting adults" had created a kind of force field that demolished the longstanding laws of forty-six of the fifty states.
Griswold and Roe have been denounced by many commentators as judicial usurpation. But, putting aside the specific issues of Constitutional interpretation at issue in those cases, the metaphors used by Justices Douglas and Blackmun can be useful ones. Fundamental propositions of law and policy — first principles — do have penumbras and emanations. First principles are given broad and expansive application. They carve out space around themselves.
Abraham Lincoln put it this way:
Our government rests in public opinion....Public opinion, on any subject, always has a central idea from which all its minor thoughts radiate. That central idea in our political public opinion, at the beginning was, and until recently has continued to be, the equality of men.
Thus, if you believe, as Lincoln did, that "All men are created equal" is a first principle, you raise an army and fight a war to vindicate that principle. Existing views of property rights, historic notions of state sovereignty and diversity, and the right of habeas corpus all yielded to the mighty first principle of the Declaration.
Likewise, if you believe that "Congress shall make no law abridging the freedom of speech, or of the press" is a first principle, then that doctrine is surrounded by a broad penumbra. "Congress" means not just Congress, but also the states; "speech" includes not only talking about politics, but also contributing to political campaigns, burning flags and publishing pictures of Miss November. And John Peter Zenger, who was jailed for violating the Alien and Sedition Acts, wasn't a criminal; he was a hero.
If you believe that "equal protection of the laws" is a first principle, then that proposition outweighs a multitude of local laws and customs. If you're Martin Luther King, your first principles dictate that you spend time in the Montgomery jail.
Above the entrance to the Supreme Court building are carved the words "equal justice under law." That is a first principle, whose powerful emanations reach high and low. Petty criminals, like Clarence Gideon, win landmark constitutional victories. Powerful and brutal criminals, like John Gotti, are run to ground by dogged, courageous prosecutors. And even the mightiest politicians, like Richard Nixon and Dan Rostenkowski, have found that the rules that govern ordinary citizens apply to them as well. Secondary doctrines like executive privilege yield to first principles.
Public reaction to the Clinton scandal tells us that these great propositions have been joined, and perhaps superseded, by another first principle, with its own set of penumbras and emanations. That's right: the Playboy Philosophy. What two consenting adults do in the privacy of their bedroom is no one else's business. This is the proposition that is universally cited by defenders of the President who are mystified that anyone can take seriously a scandal that is only about sex.
Understand that we haven't really changed our minds about the "consenting adults" principle since our junior high school days. No doubt, as a general rule consenting adults can and should do whatever they want to do. Anyway, in today's America there is no stopping them. What is troubling is the elevation of this concept to the status of a first principle of our democracy.
Like any first principle, "consenting adults in the privacy of their bedroom" gets a broad reading, i.e., a penumbra. Thus, the concept of a "bedroom" is viewed expansively. Bill and Monica didn't exactly use a bedroom. Their activities took place in his office. Actually, our office, the Oval Office, where Ronald Reagan wouldn't remove his suit coat as a gesture of respect for his predecessors. And they didn't exactly do it in privacy, since their escapades were well known to many Secret Service men and White House staff, who were required to compromise standard security precautions by ushering Monica in and out of the White House without recording her visits. And one of the consenting parties, in addition to being just barely an adult, was an unpaid employee of the other.
Whatever. When dealing with a first principle of philosophy, these are minor quibbles. More troubling is the matter of perjury. Until now, perjury has always been viewed as a serious crime — a more serious crime, for example, than Richard Nixon was ever suspected of. Perjury in a federal case, as was committed by President Clinton, carries a penalty of five years in a federal penitentiary. Perjury is a felony; felons are not only disqualified from holding public office, they can't vote. And the laws governing perjury make no discrimination on the basis of subject matter. Any knowingly false testimony about facts material to a civil or criminal case counts. The hundreds or thousands of felons now doing time for perjury testified falsely about a wide variety of matters. The only common denominator is that each and every perjurer no doubt believed that the questions he answered falsely were none of the prosecutor's business.
But in the Clinton case, a new first principle has come into play. Since Clinton's false testimony related to the sexual activities of consenting adults, it was "only about sex." In the eyes of his defenders, the President's perjury is inconsequential because it falls within the penumbra of the "consenting adults" rule. Indeed, the President's criminal conduct is even seen as honorable, much like the actions of John Peter Zenger or Martin Luther King, who knowingly violated the laws of their time out of fidelity to first principles, or Abraham Lincoln, who did what was necessary to win a war that had to be won.
The same penumbra covers the President's apparent obstruction of justice. Since the investigation was about sex which was consensual and occurred between adults, it was per se illegitimate and anything done to frustrate it was acceptable and perhaps noble.
First principles are the foundation stones of public life. A nation has room for only a very limited number of them. First principles always come at a cost; they trump other rules and concepts which may themselves have value. A democracy must carefully weigh the propositions it embraces as fundamental.
Today, a great many Americans more readily and unequivocally assent to the Playboy Philosophy than to the older, harder, more austere principles that guided the Founding. The consequences for our public standards, for the expectations we have of our leaders, and for the principle of equal justice under law are profound.