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.