By Mike Dorf
In my latest FindLaw column and my post on Monday, I took issue with the framing of the relevance of Romer v. Evans as standing for the proposition that taking a right away is necessarily constitutionally problematic. Of course, during the oral argument in Perry, the panel understood that rights can sometimes be taken away. Judge Reinhardt made the point in his colloquy with attorney Charles Cooper. The judge acknowledged that in general the people of a state can amend their constitution, even taking away rights, but he went on to suggest that this power is limited by Romer, and one question in Perry is whether that limit applies in this context. As I explained Monday, I don't think Romer stands for the proposition that some rights can't be taken away. I won't rehash that argument today. Instead, I want to ask whether, quite apart from Romer, there are rights that can't be taken away. Think of today's post as addressing the question of whether there is a constitutional endowment effect.
It strikes me as implausible to say that there are any rights that can never be taken away. To be sure, some constitutions make it impossible to take a right away. For example, Article 79 of the German Basic Law forbids any amendment that would change the protection afforded for human dignity (Article 1) or the democratic character of the German state (Article 20). But the U.S. Constitution does not have this kind of permanent entrenchment, except with respect to the Senate (a provision also paralleled by the German Constitution). So when I say that I'm interested in whether there are limits on taking away rights I mean I'm interested in whether there are rights such that it is harder to take them away than never to grant them in the first place; I'm not asking whether there are rights that are impossible to take away once granted.
Framed that way, we can connect this question to the broader question of when it should be hard to change the law. Typically, interests in reliance, planning, and stability for its own sake are invoked to justify rules--such as the presumptive weight given to stare decisis--that entrench the status quo. None of this quite maps directly onto our question. For one thing, stare decisis applies across doctrines, not just to rights. For another, horizontal stare decisis is a doctrine about a court preserving its own previous judicial decisions. Here I'm interested in the question of whether a legislature or court should be externally bound for having "gratuitously" recognized some right.
The set of constitutional doctrines that seem most promising here are procedural due process and Takings law. Under procedural due process, for example, a state that need not grant welfare benefits at all cannot grant them through legislation but then deny them to a particular individual without affording adequate procedures. But this is not a perfect analogy because the legislature retains the power to abolish the entitlement wholesale. Takings is a somewhat better fit: Where government has created a property interest, it cannot destroy it--even with full procedural protection or even by legislation--without paying just compensation. Thus, limitations on regulatory takings do seem like a pretty good example of rights that once granted, cannot be taken away (absent something dramatic like a constitutional amendment).
More broadly, I would note that a certain view of originalism conceptualizes rights in general as reflecting the you-can't-take-it-away impulse. In particular, Justice Scalia contends (at pages 40-41 of Common Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997)) that the whole point of a Constitution is to prevent backsliding on rights (and other matters). Of course, Scalia's view--and on this point I think his view is widespread--would say that only those rights that are entrenched through some extraordinary process of adoption (such as the super-majoritarian process for Constitution making and Constitution amending) get anti-backsliding protection. So I doubt that he would endorse the can't-take-rights-away approach with respect to a right that was only recognized by a (controversial) judicial decision, as in California with respect to same-sex marriage. But there is nonetheless a sense in which everybody endorses the notion that the whole idea of rights is that they can't be taken away without something extra beyond what is normally required to change the law.