Monday, March 11, 2019

The Case Against Unenumerated Fundamental Rights

By Eric Segall

Next week I have the privilege of participating in a symposium at the University of Nevada at Las Vegas on substantive due process. I plan to use my time to argue that the Court should not only repudiate that anti-textual, anti-historical doctrine, but also suggest the Court should not use either the Ninth Amendment or the Privileges or Immunities Clause as its substitutes. The costs of the Justices enforcing their personal views on natural law, morality, or call it whatever you want, are just too great, especially when it looks like we will for the near future need the Court to save its prestige and energies for difficult and urgent separation of powers problems. I will briefly sketch out my general arguments here, and eventually write a much more detailed article on the subject.

There are legalist arguments against using any of the three constitutional provisions above as a font of judicially invented fundamental rights (other than those listed in the Constitution). These arguments are not my main reasons for rejecting a fundamental rights doctrine because being a legal realist I understand that judges and scholars can manipulate formalist arguments. But I mention them for those who think legal doctrine matters to the Justices.

Some scholars and judges believe that "substantive due process" is a textual oxymoron. As Professor John Hart Ely said a long time ago, it is “a contradiction in terms—sort of like ‘green pastel redness.’” Professor Jamal Green vigorously disputes this characterization arguing among other things that there are some deprivations that cannot be justified by any process, and therefore the phrase must have substantive content. Nevertheless, the text seems to suggest procedural protections either mostly or exclusively.

Although some folks have tried to make an originalist case for the doctrine, Professors Michael McConnell and Nathan Chapman have exhaustively researched the subject and concluded that "contrary to the claims of some scholars, however there was virtually no precedent before the Fourteenth Amendment that restricted liberty or the use of property. Contemporary resorts to originalism to support modern substantive due process doctrines are therefore misplaced." There are likely non-frivolous historical arguments against this view, but the analysis by these two scholars is more than sufficient to justify a formalist veto on judges or scholars suggesting originalism justifies using substantive due process to protect non-textual, fundamental rights. 

There has never been a five-Justice majority opinion holding that the Ninth Amendment is a font of judicially enforceable rights. Although its text might suggest otherwise, its history and the Court's two-hundred year practice of not using the Amendment that way provides strong support for rejecting judicial use of the Amendment to protect fundamental rights. 

The Court substantially gutted the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter House Cases in 1873, limiting that provision to narrow incidents of federal citizenship such as the right to travel. Justices Thomas and Gorsuch, as well as many scholars, have called for that case to be re-examined and to replace substantive due process analysis and incorporation of the Bill of Rights with a P or I analysis. They won't and shouldn't get five votes for those ideas, however, mostly because it would give protections only to citizens, not even to legal resident aliens, from state violations of enumerated rights such as free speech, freedom of religion, and the alleged right to own guns, among others. Such a move also requires overturning long-established Supreme Court precedents more important and numerous than the Court's substantive due process cases. Again, the legalist arguments against such a move are strong.

So I can easily defend my position against judicial creation of fundamental rights on formalist grounds alone, but such arguments rarely convince anyone. My more persuasive arguments rest on policy.

When the Court has articulated fundamental rights not listed in the Constitution, it has miserably failed and almost always bad consequences have followed the Court's inventions. Some people trace substantive due process back to the infamous Dred Scott case where the Court held that African-Americans couldn't be citizens, and Congress could not end slavery in the territories. There is some dispute whether Dred Scott really is a substantive due process case, but if it was, no one would defend the doctrine based on that precedent.

Most scholars equate substantive due process with two major lines of cases: the decisions from 1900-1936 invalidating hundreds of laws dealing with economic relations between employers and employees and employers and unions. This series of cases, symbolically referred to as the Lochner line of decisions, after the case of the same name, were overturned in 1937, and the Court has not looked back. 

Many blame these cases for giving rise to FDR's infamous Court packing plan and for wrongly interfering with the start of the New Deal. Although there has recently been a move by some on the right to rehabilitate Lochner, the call is not to reinvigorate substantive due process but rather to put more teeth into the Court's extremely deferential rational basis test which applies to all legislation and does not implicate the Court's fundamental rights doctrine.

The second series of cases most associated with substantive due process and fundamental rights are the decisions from Griswold to Roe to Obergefell.  The harsh backlash to Roe, of course, still infects our judicial confirmation hearings, local governmental politics, and even Presidential elections. As importantly, poor women in red states still have a difficult time securing abortions. And recently the Trump Administration announced that any family planning clinic that receives much needed federal funds for cancer screening and other non-abortion medical services must be physically separated from any part of the clinic that performs abortions. This will make it extremely difficult for poor women to obtain safe, medically supervised abortions.

Roe and its progeny illustrate the problems with unelected, life-tenured judges discovering and defining unenumerated constitutional rights. With the caveat that I am pro-choice all the way down, tens of millions of Americans believe abortion even in the first trimester amounts to the murder of an innocent baby. There is no right or wrong answer to this complex problem as a matter of law or morality. There is no text, history, or law to solve this problem. 

Although enumerated constitutional rights such as the right to free speech and the right not to be subject to cruel and unusual punishments are incapable of precise definition and application by judges, at least we can submit hard issues involving those provisions to them on the grounds that we have a system of judicial review, for better or for worse, and judges have no choice but to decide cases raising those textually identifiable rights. There is no similar justification for giving judges the power to pick and choose among themselves which non-textual rights are fundamental and which are not. Not to be over-simplistic, but if a right is not fairly derived from the constitutional text, what gives judges the authority to create it?

There is no objective, neutral or even legal way to distinguish fundamental from non-fundamental rights. Whether judges look to our traditions, natural law, or our present shared morality, there is no metric to decide that my daughter's right to terminate a pregnancy is more fundamental than my right to rent my apartment/use my property as I see fit, or the right to pay my employee a wage below the statutory minimum that she is willing to accept. At the end of the day, fundamental rights will simply reflect the Justices' personal value preferences.

Allowing judges to identify and enforce non-textual fundamental rights causes great evils even apart from the fundamental rights cases. It is not a coincidence that after the Court's privacy line of cases mostly petered out, and once conservatives took control of the Court, they concocted all kinds of non-textual limiting principles to further their own political agendas. I've written before how the Court's anti-commandeering, equal state sovereignty, color-blind, and state sovereign immunity decisions have no basis in text and little support in history. I am not suggesting these decisions are direct payback for Roe and other substantive due process cases, but at a deep level they may reflect an attitude that "if your side is going to develop rules not based in constitutional text, our side will as well."

Finally, as a prudential matter, history shows the Court is most vulnerable when it creates and enforces non-textual rights. Conversely, when the Court issues important separation of powers decisions (and even federalism decisions), the Court's reputation and prestige usually do not take  similar hits. The Court's decisions stopping Truman from seizing the steel mills during the Korean War, invalidating the Line Item Veto Act and legislative vetoes, and even prohibiting term limits on members of Congress, came and went without too much public or even political outrage. The same cannot be said for the Court's non-textual fundamental rights decisions. Given the current state of our Trumpian politics, and the likely future to come, the Court should conserve its energies and political capital for the political struggles implicating major structural constitutional boundaries that are inevitably and sadly in our future.


Laci The Dog said...

I agree. Although, I think the answer to the Griswold to Roe to Obergefell issue lies in the First Amendment establishment of religion/freedom of conscience. This is because most objections to reproductive rights are based upon religion, not science. toss in that religions have different attitudes toward this issue.

Michael C. Dorf said...

I have a couple of small disagreements and then one larger one.

1) I disagree with the statement that there has never been a Supreme majority opinion that relied on the Ninth Amendment. In Planned Parenthood v. Casey, the Court says this: "Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amend. 9." Now, someone might argue that this appears in the plurality opinion, but that's wrong. That language is in Part II of the joint opinion, which, at that point, is the opinion of the Court (i.e., joined by five justices).

2) SDP plays at most a minor role in Dred Scott. Chris Eisgruber's chapter on the case in my book Constitutional Law Stories, based on his earlier law review article, "Dred Again," lays this out. If the Dred Scott opinion is a cautionary tale about any methodology, it should be originalism. But Eisgruber's larger point, with which I agree, is that any methodology can be used to support bad results in particular cases.

3) Prof Segall says that "history shows the Court is most vulnerable when it creates and enforces non-textual rights." I don't think there's good evidence for that view. Griswold (in which the Court "created" the right to contraception and reinvigorated substantive due process) was barely noticed. Conversely, Hammer v. Dagenhart (a structural case invalidating a federal child labor law as beyond the scope of the Commerce Clause) was extremely controversial. Brown and its progeny were wildly unpopular in the South, despite relying on equal protection rather than unenumerated fundamental rights. The overwhelming takeaway of Barry Friedman's excellent book, The Will of the People, is that criticism of the Court tracks the unpopularity of decisions roughly on policy grounds, regardless of the particular legal doctrine.

Bottom line: Prof Segall's argument for prudent judicial self-restraint would be stronger if phrased as a critique of Court decisions that will be controversial. And indeed, in general, that is his view. He follows Thayer in supporting judicial invalidation of only those laws that appear unconstitutional beyond a reasonable doubt. That's a respectable view, although it means, among other things, that Brown is wrong as an original matter. But in any event, I think that unenumerated fundamental rights are the wrong target of the Thayer/Segall view.

Eric Segall said...

A few brief responses to Mike. I don’t think the “See 9th Amendment” cite suggests that 5 Justices adopted a 9th Amendment analysis in Casey given not a single Justice who signed on to that opinion used it before or since and given the rest of that opinion explicitly relies on the word liberty in the 14th Amendment. 49 out of 50 states didn’t have a similar law to the one in Griswold and all general rules/descriptions have exceptions. The fact that Griswold wasn’t particularly important to the public is true but it certainly was to Court experts starting in the 70’s. There have of course been controversial opinions (like Heller) involving alleged textual rights but I don’t think that undercuts my claim that the Court is on its most shaky ground when it seeks to enforce non-textual rights. I do agree with Mike of course that the public generally cares most about results than rationales.

Shag from Brookline said...

Is it fair to say that the 9th A is not incorporated via the 14th A because of the text of the 9th A? If so, from the standpoint of original public meaning originalism, such originalism would look to the original public meaning of the 9th A as of 1791 when it was ratified. Utilizing Eric's phrase "non-textual fundamental rights," would such version of originalism limit such rights as fixed as of 1791? Might corpus linguistics identify what were "non-textual fundamental rights" existing as of 1791? Or would this version of originalism accept the concept of an evolving original public meaning of the 9th A as to its unenumerated rights?

I trust that Eric will sharpen his views for his presentation beyond the limits of his post and look forward to reading his presentation and commentary with respect thereto. There seems to be an effort on the part of some conservatives, on the Court and elsewhere, to elevate the 9th A for conservative political purposes well beyond what history informs us.

Joe said...

Some scholars and judges believe that "substantive due process" is a textual oxymoron.

This basically begs the question on what "due process of law" means in practice. There is a long rich history of some substantive limit on government power that in part is a part of due process. This has been covered in (disputed) legal literature.

Anyway, as Justice Souter et. al. has noted, it has over a hundred years of precedent in law. Plus, the public at large treats the basic concept as patently obvious. We can debate scope, especially the scope of judicial power, but some form of it to me is basically settled law and a rightly established part of our constitutional history.

The first comment underlines as well the ultimate limits of this as a limit on judicial power (see also Prof. Dorf's comment & Justice Harlan's comment on the issue in his Griswold concurrence): much of this very well can be tied to text.

And, if it is very unclear that it has much of a judicial power enhancement function. Lochner v. NY is even an example of this. The law was deemed infamous "class legislation" and could have been based on equal protection principles. What is the "principled" way to settle questions of text any different than determining something like marriage is a fundamental right? Original understanding, e.g., can be used as would other forms of legal interpretation to do that as much as the proper contours of free speech regulation.

Plus, it is a tad circular since you have an amendment that expressly (again this is at least the long belief of the public and legal tradition) guards against just being limited to enumerated rights. Handwave Dorf's 9th Amendment away if one wants but this is basically what substantive due process protects too. Writing it out because it is hard or controversial at various instances (as are various textual and structural things -- the attempt to handwave the short term nature of certain disputes aside) doesn't seem quite kosher to me.

I would follow the lead of Harlan and Souter on this question, including answering concerns of judicial modesty.

Joe said...

The plurality in Richmond Newspapers, Inc. v. Virginia (FN15) references the 9th Amendment and it reaffirms my basic understanding that substantive due process basically serves that function.

Not to belabor the point, but "privileges or immunities" are expressly protected by the Fourteenth Amendments, which provideds the basic foundational view of an open-ended bunch of rights of freedom. One such right other than marriage is the right to travel, which was already starting to be recognized in the Taney Court.

As to protecting non-citizens, there would be retained an equal protection requirement (it long understood that alienage is akin to race) and procedural due process still applies to "persons."

But, the chance that it won't happen given precedent doesn't seem to be a strong argument anyway since Prof. Segall is challenging long held law that isn't likely to change either. So, we are left to think big picture.

On that, to toss it out there, various structural rulings deserve "outrage" including stripping Congress of power to protect civil rights of various groups and American citizens to obtain rights in court given misguided immunity jurisprudence. The somewhat hiding the ball nature of these rulings as compared to Roe v. Wade doesn't impress much.

Jason S. Marks said...

Professor Segall argues that substantive due process has no solid textual pedigree in the Constitution and as a realist he believes that ultimately the rights the Court has declared have been the policy preferences of five justices. While the latter proposition may hold true as a statement of the realities of judicial behavior, that proposition extends beyond substantive due process to interpretations of the Commerce Clause or even the canons of statutory construction. If a bloc of conservative or liberal justices want to the move the law in a certain direction, so says the legal realist, no text will constrain that bloc. That is why Judge Posner went so far as to say at one point that judges need barely tether themselves to the text if their authority is simply to declare what the law is at a given moment in time.

But to admit that judicial philosophy and the politics of judicial decision making have flaws is not a basis to say the text of the Constitution lacks a substantive component. The text says no deprivation of life, liberty or property without due process of law. In Buck v. Bell, the Court found no problem sterilizing mentally retarded individuals as a class. Suppose these individuals had individual hearings on their ability to parent, and the Court each time said no. Is the hearing alone sufficient process to deprive someone of the liberty to procreate? In Skinner, the Court said no, finding that marriage is a pre-contractual right inherent in the word liberty. In essence, no amount of procedural due process could protect that which the state has no right to take away. It seems that control over one's body and mind lay at the heart of the idea of liberty in our constitutional republic. All our political theory at the Founding incorporated the thoughts of Puffendorf and other Enlightenment thinkers on this point. It does not seem a textual stretch to say that the liberty interest inherent in the Fourteenth Amendment extends to arbitrary interference with basic ideas like procreation and marriage. If an individual lacks the freedom to choose whom to marry and when and whether to have a child, or when and how to die with dignity, what exactly does freedom mean? The First Amendment rights of speech, expression and association involve the essence of living freely; they mean nothing if they are only aspirational rather than actualized.

Did the Griswold decision do a disservice by referring to penumbras rather than grounding in the text? Perhaps. But we have used liberty interest analysis for most of our constitutional history. Sometimes we just use it poorly or disingenuously. But it seems hard to argue that the imperfections of originalism and textualism justify tossing aside any way of protecting rights of basic human dignity. We just must articulate them better and apply them without implicit bias baggage. As Justice Stevens argued, the Establishment Clause alone prevents importing religious views on marriage and contraception into the Constitution. If we recognize that simple fact, it is easy to get to a non-controversial previability right to terminate a pregnancy and a right for homosexual couples to marry. Some constitutional questions have rather easy answers if we are honest about what the philosophy of the Founders was with regard to human dignity and the basic idea of a liberty interest. Could we use a phrase better than substantive due process? Sure. But let's not throw out the rights under the umbrella because we don't like the word "umbrella" even though we agree it keeps our bodies sacrosanct.

Shag from Brookline said...

Query: Prior to Heller (5-4, 2007), was "self-defense in the home a non-textual fundamental right?

Bob Moss said...

Just from memory,if there are no not-specifically-enumerated rights, what is the Ninth Amendment about?? And "a-historical"?? The opponents of the bill of rights argued that it would be interpreted as removing protections for all rights not listed. That's why the Ninth is in there.

I freely admit to not yet having read Roe. At age 72, I've got 25 years or less to do it. Meanwhile, I haven't seen the case made in detail that the Court randomly chose abortion as a right. Blackstone did note that English law allowed abortions so long as the fetus was not "quick".

If anyone chooses to engage me on these points, I will stir myself to look up specifics.

Shag from Brookline said...

Respecting Robert's" invitation," my comment at 10:27 AM focused on the meaning of unenumerated rights, including by means of original public meaning originalism. Are such rights fixed as of 1791, or can such rights evolve over time? At age 88 I have no idea how the 9th A should be interpreted/construed, whether pursuant to some version of originalism or non-originalism. Is natural law to be read into the 9th A? Sure, there's a reason for the 9th A just as there was a reason for the 11th A (and how did that work out?).

Joe said...

Query: Prior to Heller (5-4, 2007), was "self-defense in the home a non-textual fundamental right?


The 9A isn't more fixed in time than any other provision. There probably is some sort of "natural law" aspect but that isn't any more fixed.

The problem with the 11A to me seems to be that we ignore the text of it too much.

Anyway, if you are going to read one opinion, probably better off reading Planned Parenthood v. Casey, which is basically (for now) the law on abortion.

Andrew Hyman said...

Mr. Moss, I disagree regarding why the Ninth is there. The Ninth Amendment plainly allows unemumerated rights (like an alleged right to litter, or to drive through red lights) to be denied and disparaged as long as they are not denied and disparaged because of the enumeration of rights in amendments 1-8.

The framers feared that the enumeration in the first eight amendments would trigger the expressio unius canon. Therefore, the Ninth Amendment negated the expressio unius canon as applied to Amendments 1-8. Ergo amendments 1-8 cannot be used to disparage unenumerated rights. But unenumerated rights can still be denied and disparaged because, for example, Article I does not give Congress any power to violate them.

In other words, the great residuum of powers that were not delegated to the federal government imply that Congress is restrained by countless unenumerated rights belonging to people within each state. (These don't qualify as "privileges and immunities of citizens of the United States" because U.S. citizens residing in Washington D.C. and other areas of plenary federal power do not enjoy them.)

Andrew Hyman said...

Meant to say, "But unenumerated rights can still be denied and disparaged because, for example, Article I gives Congress power to violate them."

Bob Moss said...

What? To use another of Blackstone's privacy rights examples, can Congress restrict the amount of alcohol a person may drink in the privacy of the home (meaning no disturbance to the neighbors), if it adds, "We're denying and disparaging the right to drink at home, but not because you won't find it listed in the first eight Amendments"??? I really don't follow what you mean.

Bob Moss said...

Hmm, I don't see away to reply directly to a comment.

Going back to Shag from Brooklyn: The "originalism" debate has been distorted and overblown. Our Constitution is extremely terse---compare it with many others. Common sense tells us that the first thing we want to know is, what did these words mean to the authors and ratifiers? Obviously, "press" meant printed news media. But that's not to say everything is frozen in 1787. It's equally obvious that, had the founders imagined over-the-air broadcasts and the internet, they would have agreed that those are covered by the First Amendment also.

Shag's use of "read into" illustrates a major dysfunction in the "un-enumerated" debate. Rights must not be "read into" the constitution. The right wing has vastly over-used this criticism, and in fact, I'm not convinced that it could be objectively shown that it's ever happened (as opposed to mere disagreement with the result). The Courts should look for evidence as to what people in 1787 understood to be their fundamental rights.

Shag from Brookline said...

Perhaps it's difficult identifying what people in 2019 understand to be their fundamental rights, let alone going back to the time of the Founding years. The present day political dysfunction illustrates disagreements as to many rights.

Can we expect to hear from textualists and originalists (they're not exactly the same)? Stocks and bonds back in the Founding years were not activated with the 2007-8 Bush/Cheney Great Recession for those on Wall Street who bore responsibility for it.

Joe said...

Obviously, "press" meant printed news media

You might want to tell that to many people who understand that to mean something else (e.g., simply the technology of printing, not "printed news media").

Anyway, on the 9A, states over the years have had a form of it in their own constitutions. The basic idea being that a listing of rights shouldn't be inferred to leave out others.

The federal Bill of Rights was originally generally understood to apply only to the federal government. But, it was later (mostly) applied to the states via the Fourteenth. The basic principle of the 9A applies to the states that way.

Shag from Brookline said...

But has SCOTUS incorporated the 9th A via the 14th A? The 14th A Founders seemed to primarily focus upon the first eight As as being included within the meaning of the 14th A.

Andrew Hyman said...

Mr. Moss, you ask me whether Congress can restrict the amount of alcohol a person may drink in the privacy of the home (perhaps to prevent disturbance to the neighbors). Congress can likely do so in areas like Washington D.C. where Congress has plenary power. It doesn’t matter whether or not Congress explicitly adds, "We're denying and disparaging the right to drink at home, but not because you won't find it listed in the first eight Amendments." Of course, we live in a democracy, and so a federal statute like that is very unlikely in the District Columbia. But Congress very likely has the power. See article I, section 8; 21st Amendment, section 2.

Now suppose Congress extends your hypothetical drinking limitation to Puerto Rico, where Congress can “make all needful Rules.” The matter goes to court, where the defendant argues that the alcohol limit is not “needful,” while DOJ merely argues that the defendant has no federal rights other than those enumerated in the Constitution. SCOTUS should then properly hold that the DOJ argument is forbidden by the Ninth Amendment, and that DOJ has failed to carry its burden of proving the regulation is “needful.” So plaintiff wins because of the Ninth Amendment.

Now suppose Congress tries to apply the alcohol consumption limitation within the boundaries of every state. Plaintiffs argue that the limitation exceeds congressional power because the booze was not part of interstate commerce, whereas DOJ argues that plaintiff has no federal rights other than those listed in the Constitution while also arguing that Congress has sufficient power under the Commerce Clause. SCOTUS should properly hold that plaintiff is correct that the Commerce Power does not extend to alcohol that has been manufactured and then sold entirely within a state, whereas DOJ’s argument is inconsistent with the Ninth Amendment. So, again, plaintiff wins with the help of the Ninth Amendment.

Joe said...

But has SCOTUS incorporated the 9th A via the 14th A? The 14th A Founders seemed to primarily focus upon the first eight As as being included within the meaning of the 14th A.

See Michael Dorf's comment.

The concurring opinion by Justice Goldberg in Griswold v. Connecticut basically argued that the 9A advances use of substantive due process of unenumerated rights.

I would argue that de facto it incorporates the 9A. As to "the founders," the evidence is pretty mixed, even regarding how much they understood the first eight to be incorporated. At any rate, other rights were also flagged. For instance, in this country the state doesn't get to tell you what occupation you must take part in.

Things like marriage and other rights arising from family life was also cited and freed slaves felt them very important.

Andrew Hyman said...

(Meant to write "plantiffs" instead of "defendants" throughout. Sorry about that.)

Shag from Brookline said...

It would have been relatively simple for the Founders of the 14th A to include a provision specifically incorporating all or some specific portions of the Bill of Rights. But the Founders did not do so and resort is made to sometimes conflicting legislative history. Consider the role of SCOTUS with respect to 14th A incorporation historically since its 1868 ratification, including the specificity of its determinations. To date the first eight As in their entireties have not been fully specifically incorporated per the 14th A. SCOTUS knows how to incorporate specifically provisions from the Bill of Rights via the 14th A. Perhaps the discussion here may spur SCOTUS regarding the 9th A: upgrade from "de facto" to specific incorporation (in part or in whole); or deny "de facto" incorporation.

I have no quarrel with progressive decisions of SCOTUS, many that came along too long after the Civil War Amendments, involving fundamental rights. But if what constitute fundamental rights is in the eye of the beholder, might the latter be an ideologue?

Bob Moss said...

Sorry, I'm bowing out. I don't see how to respond directly to an individual's comment, and I'm too old to spend my days scrolling back and forth in an attempt to recreate a thread.