The New Republic

Barkeep!

[waves him over]

I believe that is the Governor who has just come in and taken that stool, down there.

Would you kindly provide Mr. Baldacci a drink, whatever he wants, and put it on my tab? 'Preciate it.

- williamyard

May 8, 2009 at 7:33pm

Republicans and conservatives define "judicial activism":  

"anything any court prescribes or proscribes that pisses me off"

Democrats and liberals define "judicial activism":

"anything any court prescribes or proscribes that pisses me off"

This is really no different from the manner in which they both define "politically correct". Something either is or is not politically correct if it either does or does not piss them off.

george

- iambiguous

May 8, 2009 at 10:05pm

Another excellent post from Just on this subject.

- jhildner

May 8, 2009 at 11:17pm

While we're on the subject of gays and the courts, I thought I'd mention something I thought about tonight when I was at the gym:  if the Republicans are nice and confirm a gay justice to the SCOTUS, they can run  in future races on the message that they are not actually antigay.  "Because lookie here--we voted for a gay judge, didn't we folks?"  

In effect, gay rights might trade their plight for marriage equality in for a lesbian judge.  I say this as a gay man.

- dylanposer

May 9, 2009 at 12:40am

dylan:

...if the Republicans are nice and confirm a gay justice to the SCOTUS, they can run in future races on the message that they are not actually antigay.

george:

Obama should put out an APB to track down the most conservative homosexual in America.

If that comes a cropper, he can always nominate Andrew Sullivan, right?

gw

- iambiguous

May 9, 2009 at 3:09am

Bleeeeeecchhhhhhhhhhh

- dylanposer

May 9, 2009 at 3:26am

I like this post but it should also be noted that - as I see it at least - Baldacci is not enjoying a lot of popularity within his own party.  

- benberger

May 9, 2009 at 11:30am

It is a misconcpetion that judges interpeting equality under law to include gay marriage are being activist and anti democratic. Why is it activist to so read the ambit of equality under law? I would have thought that conventional equality reasoning is well equipped to include gay marraige. And I would turn that argument around: a judge who refused this reading of equality is being activist in distorting precedential analysis to conform to his or her own biases. Surely this is a kind of bad activism. Further, I do not understand activism as something equatable with deciding differently from what the majority might want in any particular case. What the majority or convention might want in any particular case might amount to the denial of protected rights and liberties and it would be no activism to hold against the majority. So holding would come right square within the judging job description. And this too is correct: "... Those of us who favor an active role for courts hardly see them as the only, or the primary, way of pushing liberal goals. We simply argue that progress in a liberal democracy is a complicated enterprise involving multiple players and multiple branches of government--and that, when it is clear history is headed in a certain direction, courts can often play a role in nudging forward other branches, not to mention public opinion.."  Which is to say courts, a third coequal branch of your government, have their role to play in construing and applying the law. There is nothing *overarchingly* anti democratic about that, even if judges are not elected. When judges err in your system they are not being anti democratic as such; they are just being mistaken in any particular instance.

- basman

May 9, 2009 at 2:47pm

Basman, you are exactly correct on all points, in my humble opinion.

- jhildner

May 9, 2009 at 11:30pm

I also agree with Basman, in particular with his point that bad judicial "activism" occurs when a judge distorts the law to conform to his or her own biases.  But I also think it must be recognized that most statutory text, and certainly most constitutional text, leaves ample room for varying interpretation as to how it applies to particular fact-patterns.  Within the range of legitimate interpretation, a judge will, perforce, conciously or unconciously, bring his or her own moral sensibilities to bear.  That is what I think (though I don't know) Obama means when he says that "empathy" is a desireable quality in a judge.  He means that a judge should, within the range of reasonable interpretation, take into consideration the real-life impact that a decision will have on the litigants and those similarly situated.

Of course, people will disagree regarding whether a particular decision falls within the range of reasonable interpretation of a legal text.  That disagreement itself can be driven by one's basic moral beliefs.

Let's take a concrete example:  Roe v. Wade, which people like Orrin Hatch regard as a quintessential example of judicial "activism," i.e., of "making law" rather than interpreting the law.  First of all, I think reasonable people would have to agree that the Roe v. Wade Court engaged in extensive linguistic and conceptual gymnastics in order to locate a right of bodily autonomy, or a right of autonomy in making reproductive decisions, in the Constitution.  We might believe as a normative matter that a right of bodily autonomy ought to exist, or does exist as a matter of natural law, but it is difficult to infer it from the Constitution, even if one believes that constitutional rights should be expansively construed.

But even if we assume that a right of bodily autonomy, or what the Court called a right of "privacy," is protected by the Constitution, that doesn't answer the question of whether the right of privacy extends to the freedom to abort a fetus.  If a judge believes that a fetus is a person or otherwise an entity that has a moral claim to continue living, then he or she might be morally driven to conclude that a right of privacy does not extend to the act of aborting a fetus.  After all, the act of abortion would affect a being other than the actor herself.  

On the other hand, if one is sensitive to the horrible social consequences of requring women to unwillingly carry pregnancies to term or of making them criminals for having abortions, that might lead a judge to conclude that fetuses do not have any moral claim to protection, or that a woman's right of autonomy trumps any moral claim the fetus may have.  

I suppose this is a provocative example to use, but I think if fairly starkly demonstrates how a judge's moral sensibilities can affect how he or she interprets constitutional law.  That is inevitable and does not make a judge's decisions illegitimate.  But it does mean that it is not inappropriate to explore a judicial noiminee's moral stances.

- dhurtado

May 10, 2009 at 11:48am

Basman: totally agree with you on "activism".  And on the question at issue ... please see my reply to Rob Martin's article in the Law Times.  Can't post my link, but if you google my first name and "rob martin" or "gay marriage", you'll get the link directly.  I do think that this is something that should, at its core, be legislated rather than adjudicated, and European countries have got there without having to be prodded by the courts.  Nevertheless, to argue that interpreting equality to include gays involved some sort of activism on the part of judges misses the whole point of adjudication.

- icarusr

May 10, 2009 at 12:31pm

dhurtado:  Yes, I think you are absolutely right, and I think this *is* what Obama is suggesting when he says he wants someone who appreciates the real-world consequences of decisions in an empathetic way.  I'll give you a less controversial example than abortion:  Brown v. Board of Education, in which the Court held that separate but equal is inherently unequal.  Now, that's not true as a matter of linguistics or even conceptual reasoning.  Separate but equal is still equal in a vacuum.  To arrive at the conclusion that separate but equal was inherently unequal *in this context*, you needed to import some sensitive acknowledgement of the reality of the situation.  Brown overturned Plessy v. Ferguson, which held that segregated train cars were just fine.  In Plessy, the Court rejected the argument that segregation placed upon blacks the "stamp of inferiority," finding that, insofar as that was true, it was only because blacks chose to put that construction on it.  Justice Harlan, in his classic dissent, said that nobody would be "so wanting in candor" as to suggest that the purpose of the segregation was to keep whites out of black cars so much as the other way around.  (Of course, the majority exhibited just such a lack of candor.)  Harlan -- and Brown -- acknowledged that separate-but-equal was an incident of de jure racial hierarchy, an example of a legal caste system, which is offensive to constitutional principles of equality before the law at their core.  Seeing that as a matter of constitutional interpretation meant frankly acknowledging what was going on -- who was doing what to whom, and that it was very bad.  Yet it was not unprincipled or, as the recent Times article about Obama's "empathy" requirement suggested in a typical example of legal illiteracy, an example of cheating, of peaking beneath Lady Justice's blindfold.  Indeed, to be "so wanting in candor" as to willfully ignore the reality of the situation may be, depending on the situation, the real example of putting your thumb on the scales.  Sometimes, being too blind leads to a gross violation of legal principle, and opening your eyes can lead you to see the principled path more clearly.  The reluctance to acknowledge the obvious tension between the institution of slavery and the nation's founding ideals was surely an example of blindness, but not the principled, dispassionate sort of blindness that the statue represents.  Rather, it was an example of the crass, corrupt blindness that Harlan blasted in his dissent.

I'm not sure it's necessary to say that denying gays the right to marry and instead conferring civil unions (if your state does that) is not as bad as slavery.  But the analogy holds in other ways.  This is a case where our principles of equality -- as they have already been interpreted over the years by the Court -- pretty decisively point in favor of requiring gay marriage -- and equal rights for gays generally -- as a constitutional matter.  It seems clear to me that the reasoning against it is the real legal distortion, and the reasoning for it is as clear as a bell, and several state courts, including some more conservative judges, agree with me.  It may well be that to get there on the federal level, we need to inject some of Harlan's candor.  For example, it will not do to conceptualize homosexuality as merely a deviant behavior and gay people as perverts.  It may be necessary to acknowledge that being gay -- regardless of the extent to which it is genetically determined -- is a facet of identity that, like heterosexuality, is not a matter of realistic choice for millions.  It may be necessary to acknowledge the history of discrimination against gays.  It may be necessary to acknowledge that being gay has no relationship to one's ability to be a productive member of society.  It may be necessary to acknowledge that anti-gay-marriage and anti-gay-equality sentiment is infected with the sort of prejudice that are counter to constitutional values.  So, while the decision I would prefer on gay rights is *not* activist in the sense that it ignores principle in favor of a preferred result, that hated "empathy" may well help us see the principled conclusion more clearly.

Another example:  Justice Powell was the swing vote in Bowers v. Hardwick, since overturned, which held that laws criminalizing sodomy were constitutional.  Powell later said that he viewed his decision in Bowers as wrong.  Some have speculated whether that sentiment was at all helped along by the realization, unknown to Powell at the time of the decision, that one of his clerks with whom he worked closely was gay.  Did empathy strike again?

A final example, and it is about abortion.  I'm not going to get into the arguments for and against unenumerated rights as a general matter in a very detailed way.  There are historical, textual, practical and even originalist arguments in their favor.  See, for example, the ninth amendment, and the view that our law reflected and imported concepts of natural law.  Consider also the efficacy of a guaranty of due process before the law prior to taking away one's liberty that permitted any legal imposition on the individual (other than those specifically enumerated) so long as a process was observed.  Consider also that the concept of substantive due process is a *very* old one -- it goes back to some of the earliest Supreme Court cases -- and that privacy jurisprudence -- that bit of our law that keeps the government out of the bedroom and says that you can raise your kid how you please, for example -- is well developed and mostly uncontroversial.  Consider that undoing all that law and adopting the stricter view on unenumerated rights would result in the absurdity that *states*, as opposed to the federal government, may freely violate the Bill of Rights.  Consider finally that a guaranty of liberty as an inalienable right is a bedrock founding principle of this country and that *any* concept of liberty may be violated in ways other than those listed explicitly in the Constitution.  So, I bristle just a little bit at the conventional wisdom that Roe and cases like it, such as the birth control case Griswold v. Connecticut, are indisputably examples of judicial activism requiring legal and linguistic "gymnastics" and that intelligent people should see them as basically a sham or mistake that should be adhered to, if at all, only out of deference to the stability of the law or other more pragmatic considerations.  Some of those opinions are not as good as they could have been, though Roe is vastly underrated I think as a matter of legal reasoning.  Regardless, it's more complicated I think than the conventional wisdom allows.

That said, I think you're pretty much right about the calculations involved and where "empathy" can come into play in abortion jurisprudence.  If the task is to balance the liberty interest of the woman against the state's interest in protecting fetuses or embryos -- and I think that *is* the task, however philosophically fraught -- then certainly an appreciation of the magnitude of the woman's liberty interest is good to have.  Acknowledgement of the nature of the imposition of the law on the individual is important when evaluating any law for its correspondence to our concept of liberty.  The other side of the balance, meanwhile, is more of a matter for the armchair, though it's more controversial.  I won't get into it except to suggest that the view that fetuses and embryos are actually people as a general matter has *never* found acceptance in our laws or even the more primitive laws from Merrie Olde Englande from which we liberally borrowed.  Abortion was never punished as murder, even when it was illegal.  Food for thought, I think.

- jhildner

May 10, 2009 at 2:09pm

...First of all, I think reasonable people would have to agree that the Roe v. Wade Court engaged in extensive linguistic and conceptual gymnastics in order to locate a right of bodily autonomy, or a right of autonomy in making reproductive decisions, in the Constitution.  We might believe as a normative matter that a right of bodily autonomy ought to exist, or does exist as a matter of natural law, but it is difficult to infer it from the Constitution, even if one believes that constitutional rights should be expansively construed...

Something I wrote once somewhere else to someone else in another context:

"...No liberal democracy can act arbitrarily or capriciously towards its citizens—a tyranny can and arguably legally on a purely positivist account of what law is. If the state’s rational treatment of its citizens is one of its constituents—in the nature of a liberal democracy so to speak, partially constitutive of it—then it follows that that is—at least conceptually— preceded by man’s inherent, inalienable rights as he contracts socially with his fellow (soon to be) citizens and the liberal democratic state in giving birth to it.

So these state-defining rights flow from man’s inalienable individual rights and often get formal expression in states’ constitutional rights documents. That is the American theory in any event. And that theory is one way of understanding why enumerated rights, at least in American and Canadian constitutional law, do not preclude the constitutional status of un-enumerated fundamental rights. Such rights, in these two countries, according to the case law, await recognition and declaration by the court. Clearly, capricious or arbitrary’ restrictions are beyond the legitimate exercise of state power.

While wanting to avoid arguing over semantics, are there in common (sense) usage material differences between “the right to be let alone” and privacy? The latter does seem more narrow and specific than the former, and the American cases, after emanations and penumbras, speak about a constitutionally protected zone of privacy. But if there is something more narrow and focused and specific about “privacy” compared to the right to be left alone, it seems hard to separate it from the more general idea. On a plain dictionary definition of “privacy”, one of its meanings is “The state of being free from unsanctioned intrusion: a person’s right to privacy.”

It’s hard to see real meaningful differences between that definition and the idea of being left alone—using the latter phrase because it was Brandeis’s in his dissent in Olmstead, and which is said to be the jumping off point for modern American  privacy jurisprudence. As opposed to judges who sought to derive a right of privacy from things like the 4th Amendment and other provisions, the better view is that Brandeis was reasoning as follows: the right to be left alone (which seems conceptually indistinguishable from privacy though perhaps broader) is at the very unstated essence of the Constitution. Therefore, to repeat, every time a privacy- related provision of the Constitution gets raised—search and seizure, others—privacy and its claimed violation are necessarily present.

So, again to repeat, the analysis is: privacy is not derivable from other provisions by necessary implication, penumbras, emanations, what have you. It of necessity precedes all those provisions which are simply—or not so simply—instances of it. So one does not infer a zone of privacy; one recognizes that it must necessarily and foundationally be there. Therefore, it is analytically necessary to start with the proposition that what a woman wants to do with her body is her presumptive constitutional right as a matter of her right to privacy.

This line of reasoning seems unassailable. And to further the argument, consider the view that abortion is acceptable to the point until the fetus is viable outside the womb—the functional marking point in the American cases—getting away from the trimester analysis in Roe—when, essentially, the state has a recognized interest--the life of the fetus-- to vindicate. The notion is that until this functional marking point gets reached, the embryo is de minimis. If it would verge on the arbitrary and capricious to forbid a woman one day after sex from, say, destroying conception from 24 hours before, then the state ought not be able to press such a restriction onto her. And it can’t because she can do with her body what she wants: either as an incident of her right to be let alone: or of her privacy; or the security of her person; or her substantive 14th Amendment liberty; or the Blessings of Liberty.

At this point the state has no interest it can rationally point to. And an essence of the court’s constitutional role is to protect individuals' fundamental rights and liberties against their violation by the state. If this line of reasoning is robust to this point, then where does one draw a line? It’s drawn where it’s rationally concluded that that the state has something to talk about—when the fetus gets practical viability, so to speak. It is not for legislatures to as a matter of their own collective morality, to deprive women of their fundamental rights.

After all, a fundamental right is a fundamental right no matter what the legislature and the conventions of the day say—just as the court was right to say in Brown v Board of Education, it is not equality for whites and blacks de jure to need to go to separate schools even if the facilities are tangibly equal. Arguments were made in that case too about states’ rights—ie the right of the democratic state to legislate the will of the people and the complementary right of the states to be free from federal court fiat.

The “other side” always has an argument. The question always is the constitutional status of the contending claims..."

- basman

May 10, 2009 at 5:28pm

Jhildner and Basman, I think we are generally on the same page with regard the appropriate methodology for constitutional interpretation.  Basman, what I hear you saying is that the Roe v. Wade Court did engage in intellectual gymnastics to locate a right of privacy in the Constitution, but that it did not need to do that because the right to be left alone, if you will, was a pre-existing right, a natural right or right that is inherent in a liberal democracy, and the Bill of Rights is merely a non-exhaustive list of the specific instances of the right to be left alone.  In other words, the right to be left alone does not flow from the Bill of Rights; rather, the Bill of Rights flows from the right to be left alone.  

That reasoning appeals to me.  I am philosophically a Millsian libertarian, and I would like to think that the Constitution embodies Millsian libertarianism.  But I'm not sure that it does.  Jhildner points to the 9th amendment as a basis for arguing that the Constitution recognizes or protects unenumerated rights.  The 9th amendment says:  "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  Does "others" refer to natural law, or the "right to be left alone," or the right to be free of capricious and arbitrary government restrictions on one's liberty?  I am sure there is a large volume of scholarly literature that has been written about the meaning of the 9th amendment.  At minimum, the 9th amendment means that there may be rights, retained by "the people" but unenumerated in the Bill of Rights, that the Constitution does not abrogate.  It does not say that the Constitution PROTECTS unenumerated rights.  And even if it did, it does not say what those rights might be.  I would be hard-pressed to conclude that the the 9th amendment empowers courts to invalidate legislation based on the court's own conception of rights that are not otherwise tethered to rights enumerated in the Constitution.  

Basman, you may argue that, setting the 9th amendment aside, there is an inherent right to be "left alone" that courts are empowered to enforce.  But where does that power come from?  It cannot come from the Constitution, because the Constitution arises from the right to be left alone; it is not the genesis of it.  Do courts have the inherent power to enforce the inherent right to be left alone?  Even if we believe that to be true, what is it that would compel the executive and legislative branches to recognize that power, if not the Constitution?  While I may think courts should have that power, I am skeptical that they can have it independent of a constitutional grant.  

But let's assume that the Constitution does protect a right to be left alone.  That doesn't really tell us very much.  A right to be left alone from what?   All criminal laws impinge on the freedom to be left alone.  Is it the right to be free from intrusion into one's home or bedroom?  There are all kinds of activities that we cannot legitimately do within our own home or bedroom, including murder, spousal rape, child abuse or building a bomb.  Perhaps we mean the right of bodily autonomy.  That has some resonance with me, and would mean that we have an inherent right to consume harmful narcotics, to have access to unproven medical treatments, to drive a car without wearing a seatbelt and to ride a motorcycle without wearing a helmut.  I am sure some would argue that those activities are regulable because they have at least an indirect impact on third parties or society at large.  I nevertheless am philosophically disposed to recognizing a right of bodily autonomy in that sense.

Still, that begs the question of whether a right of bodily autonomy extends to aborting a fetus.  I don't think the answer is as easily discerned as the two of you suggest.  The core question is whether a fetus has any moral claim to life, and, if so, how that claim stacks up against a woman's claim to bodily autonomy.  If it is true that abortion has never been punished as murder, it is also true that it has been punished as a criminal act, thus implying that the fetus has some moral status, even if it does not have the same moral status as an adult human.  Moreover, the extent to which the fetus has been regarded as a person in the past does not answer the question of its moral status.  What is it about "viability" that abrogates a woman's right to bodily autononmy?  Or what is the relevant distinction between a 6 month non-viable fetus and a newborn infant that renders the latter subject to full protection against violence, but the former entitled to no protection at all?

- dhurtado

May 11, 2009 at 1:19am

dhurtado:  Good points.  I have some responses, but no time to get into them now.  Please check back tomorrow, if you're so inclined.  Cheers.

- jhildner

May 11, 2009 at 2:41am

dhurtado thanks for your thoughtful reply. You have touched on problems with my argument I'm aware of. When some work dust settles I'll try to make a comment or two.

- basman

May 11, 2009 at 9:15am

dhurtado / jhildner / basman -

Fantastic posts - please continue, when you can!

- dhauck

May 11, 2009 at 12:54pm

Getting back to Just's original point, though, which was whether judicial activism has helped or hurt the cause of gay marriage, I don't know that Gov. Baldacci's statement can be taken as proof of the former.  Perhaps some small benefit has accrued from courts keeping this issue in the public eye, but really the governor's attitude changed because society's attitude is changing.  Ten years ago, the majority of Americans saw homosexuality as something that one *does*; today the majority sees it as something that one *is*.  The latter is easy to define as Constitutionally protected, as the governor understands; the former not so much.   I believe jhildner made much the same point.

The real credit for this shift goes not to the judicial bench, but to the director's chair - it is movies and television that have changed public opinion so much in such a short time.  And it is public opinion that is changing the law.  Of course, the same argument that has been made against judicial activism - that of unchecked power in the hands of an unelected few - could easily be applied to movie producers and TV execs.  In this particular case, though - admittedly because I personally happen to like the outcome - I tend to regard it somewhat indulgently.  Wait a second... I watch the same TV and movies as everyone else!  Damn, how did *I* really feel about gay marriage in 1999??

- dhauck

May 11, 2009 at 1:41pm

Dhurtado, with all due recognition that what I know about American constitutional law couldn’t fill a small thimble, what originally prompted what I expressed in my just before post was the following  from Brandeis in Olmstead, which I rightly or wrongly a few years ago took as judicial affirmation of the idea of certain principles underlying and informing your constitution:

“Time and again, this Court in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it.”

And:

“The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. *They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men.* To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment*. And the use, as evidence [p479] in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.”

And this from Boyd on Entick and Carrington as noted by Brandeis:

“ A sufficient answer is found in Boyd v. United States, 116 U.S. 616, 627-630, a case that will be remembered as long as civil liberty lives in the United States. This Court there reviewed the history that lay behind the Fourth and Fifth Amendments. We said with reference to Lord Camden's judgment in Entick v. Carrington, 19 Howell's State Trials 1030:

‘The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case there before the court, with its adventitious circumstances; they apply to all invasions on the part of the Government and its employes of the sanctities of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, [p475] personal liberty and private property, where that right has never been forfeited by his conviction of some public offence -- it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence of a crime or to forfeit his goods is within the condemnation of that judgment. In this regard, the Fourth and Fifth Amendments run almost into each other. [n3] ‘

And from Entick:

“The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment”

Does all this not mean that a person can do anything but that proscribed by law and the state can only do against that liberty what it is authorized to do, which authorization must pass constitutional scrutiny? Mightn’t one argue that comments in Olmstead and like comments which I imagine fill up American cases are judicial recognition of that underlying right in answer to your question “But where does that power come from?  It cannot come from the Constitution, because the Constitution arises from the right to be left alone; it is not the genesis of it.  Do courts have the inherent power to enforce the inherent right to be left alone?  Even if we believe that to be true, what is it that would compel the executive and legislative branches to recognize that power, if not the Constitution”?

Does all this not mean that there is an inherent right to be left alone and that right comes from the very nature of your liberal democracy or from the law of England when the Constitution was ratified?

Does not all this answer your question “A right to be left alone from what”?

I don’t put these questions assertively or even polemically but open mindedly looking for a good answer to them.

I take the points in your last paragraph and don’t mean to engage in argument now about abortion as such save as it might be an example of the above analysis. Clearly what a woman can do with her body is her business—as an aspect her liberty—until the state has an legitimate interest to vindicate as a limit on that liberty embodied here literally by the fetus.

- basman

May 11, 2009 at 4:27pm

Well, I wrote a lengthy response, and it appears to have been mercilessly eaten by the TNR machine, which is damn annoying, especially because I didn't back it up.  I'll see if this posts and perhaps try to summarize.

- jhildner

May 12, 2009 at 11:40am

jh -

Always copy your text into Notepad before you hit Submit.  I learned this the hard way... while arguing with you, as a matter of fact.

- dhauck

May 12, 2009 at 12:33pm

hildy, what dhauck said till actual posting for the same tragic reason.

- basman

May 12, 2009 at 1:32pm

Okay, well, that posted.  Let's try another version of what got eaten:  I did not mean to suggest that the Ninth Amendment is itself a source of rights.  However, it is, along with the Tenth Amendment, a rule about how to interpret the Constitution.  Nine says "Our list of rights is not exhaustive."  Ten says "Our list of powers is."  This reflects the founders' anxiety about federal power and concern with the protection of individual rights.  It also reflects the founders' view of rights not as something that governments or their charters confer or grant or establish but rather as inalienable and natural such that their observance is fundamental to any concept of legitimate government.  Note that the Bill of Rights doesn't purport to create rights.  Rather, it purports to refer to or recognize preexisting rights.  See the First, Second, Fourth, Fifth, and, yes, Ninth Amendments, where the text says things like freedom of speech shall not be abridged, the right to keep and bear arms shall not be infringed, the right to be free from unreasonable searches and seizures shall not be violated, the accused shall "enjoy" his already existing right to a speedy trial, and other, unenumerated rights are "retained" by the people.  Meanwhile, the protection of liberty is set forth in the Declaration of Independence and the Preamble in the Constitution respectively as the justification for revolution and the purpose of the United States government.  It is fashionable today to emphasize the hard-nosed pragmatism of the founders, but we can go too far down that path, such that we neglect the Enlightenment-era ideals and idealism that did indeed animate their project.  So, the idea that there are natural rights, and that the Bill of Rights is a partial list, would not have seemed strange to the founders. They wrote as much in the two founding documents and elsewhere.

To get a little more specific, our unenumerated rights jurisprudence relies on the two due process clauses which say that neither the federal government (the Fifth Amendment) nor the states (the 14th) may deprive anyone of their life, liberty, or property without due process of law.  This phrase, borrowed from the Magna Carta, guarantees the rule of law.  The Magna Carta used the phrase "the law of the land."  It basically says, "Government may not take away your liberty except according to law."  At a minimum, this means that deprivations of liberty must be in accordance with what the positive law says.  So, if the law says "Green-eyed people shall go to prison," there is no warrant, based upon this law anyway, to lock up blue-eyed people due to their eye color.  There is a consensus as well that this provision requires fundamentally fair *procedures* before depriving someone of their liberty.  Thus, one who is accused of having green eyes must have an opportunity to demonstrate before an impartial judge that, in fact, his eyes are blue.

The Court has held, however, that this phrase requires even more -- more than mere conformity with positive law and fair procedures.  It also reaches the *substance* of laws, such that courts are competent to hold unconstitutional a law mandating the imprisonment of green-eyed people as an arbitrary, irrational, and unjust deprivation of liberty.  Scholars and laypeople have difficulty with this.  It helps, however, to understand that the founders had a rather different concept of law from our own.  Today, we tend to think of law in positivist terms.  That is, "law" is what the law says.  Long books have been written explaining why that's true, but HLA Hart's Concept of Law was written well after the Constitution.  The prevailing concept of law at the time of the drafting of these provisions was that the definition of "law" -- especially when talking about law in the grand sense, as in "the law of the land" --  imported a normative component, such that a manifestly unjust law was not in fact a true law and that deprivations of liberty pursuant to such a law were not in fact in accordance with law properly understood but rather a violation of the rule of law.  The phrase "an unjust law is no law at all" was not first uttered by hippie lawyers in the 60s.  It may be an example of verbal gymnastics, but it is a very old and venerable example with which lawyers at the time of the founding would have been familiar and sympathetic to.  The basic insight is that thuggish rule is not saved by its observance of formalities.

But, you ask, even if all that's true, are unelected judges entitled to determine whether a law is an unjust deprivation of liberty?  Yes.  In fact, they have a *duty* to make those determinations -- that's their job and their most important role in our constitutional order.  Let me address the concern you might have that authorizing judges to make these calls allows them an uncomfortable amount of power.  I take it that you are more bothered by privacy jurisprudence than equal protection jurisprudence.  I'm speculating that, if that's true, it's true because there is an equal protection clause and not a privacy clause.  But, make no mistake:  Deciding what "equality" requires is every bit as difficult and allows for just as many opportunities for judicial overreach and other mischief as deciding what "liberty" requires.  (By the way, equal treatment by the federal government is an unenumerated right.  The equal protection clause, by its terms, applies only to states and was held to apply to the federal government by interpreting the Fifth Amendment due process clause to incorporate its requirements.  Otherwise, at the time of Brown, segregated schools would have been prohibited everywhere except the nation's capital.)

If you are worried about judicial discretion, you can rest assured that it is constrained, as a matter of fact, by judges' observance of precedent, the practice of explaining their decisions with hopefully persuasive and consistent arguments, their professional commitment to principled reasoning, the limits of the legal tools they have to work with, the manner in which issues come before a court, their desire not to be impeached and removed, and their concern with institutional legitimacy and avoiding constitutional crises.  These constraints have proved sufficient in my judgment to avoid much in the way of plausibly usurpative "legislating from the bench."  And, if you don't think these constraints are enough, then you've got a problem, because, whether a judge purports to be an originalist or not, these are, in fact, the only constraints on the exercise of his or her power until we make drastic changes to our law and Constitution.

But your objection isn't really about how judges are constrained or not constrained in practice, but how they should understand themselves to be constrained intellectually.  Many have argued for an agreeable-sounding rule that courts should invalidate legislation only if it *clearly* violates the Constitution.  I don't like this suggestion, because very little *clearly* violates the Constitution.  Such a rule would deprive these broad statements of ostensibly very important principle of any teeth.  Teeth to do what?  Why, overrule the elected branches in favor of the individual of course.  That *is* the point, remember.  Individual rights, vague or specific, enumerated or not, are conceived of as counter-majoritarian.  They are meant to protect *individuals* against their elected officials, and judges are the guardians who put that into practice when individuals pop up to complain.  So, I disagree with the view often expressed that if we have a hard question about what equality means or what liberty means or what law means -- and they're always hard questions -- we should leave it up to the people's elected representatives to decide the matter.  This basically gives up on judicial review and the enforcement of rights.  That's giving up too much.

On abortion, if one concedes that the balance isn't between, on the one hand, protecting the woman's liberty interest, and, on the other hand, the interest of the state in preventing and regulating infanticide, then I think that's a big concession on the anti-Roe side and throws the issue right into the Roe framework.  I agree with you that the proposition that embryos and fetuses have never been regarded as people, legally speaking, doesn't mean that they have not been regarded as having "moral status."  Indeed, I think they do have moral status, and that their moral status -- and the state's legitimate interest in it -- increases in proportion to the fetus's resemblance to a person.  That's what Roe says, except that it is more solicitous of the woman's liberty interest -- which was totally ignored before, and not surprisingly given that women's rights generally were frequently not observed.  There are line-drawing problems involved of course, but they are unavoidable if you take the woman's liberty interest seriously.

- jhildner

May 12, 2009 at 2:34pm

From above post:

...To get a little more specific, our unenumerated rights jurisprudence relies on the two due process clauses which say that neither the federal government (the Fifth Amendment) nor the states (the 14th) may deprive anyone of their life, liberty, or property without due process of law.  This phrase, borrowed from the Magna Carta, guarantees the rule of law.  The Magna Carta used the phrase "the law of the land."  It basically says, "Government may not take away your liberty except according to law."  At a minimum, this means that deprivations of liberty must be in accordance with what the positive law says....

Question:

Doesn't this say better and more specifically what I was trying to say?

If not, why not?

- basman

May 12, 2009 at 9:48pm

This is somewhat of an odd discussion for me because, when involved in these kinds of discussions in law school, I always advocated an expansive construction of constitutional rights, and I still do.  Having said that, I think the Constitution does (and the Founders did) contemplate limits on the judicial power vis-a-vis the other branches of government.  In fact, the Constitution does not expressly confer upon the Court the power to invalidate legislative enactments.  Justice John Marshall held in Marbury v. Madison (1803) that the power to invalidate legislation is inherent in the Court's authority to interpret the Constitution.  If the source of the judicial power to invalidiate legislation is the Court's authority to interpret the Constitution, then it follows that the Court does not have the power to invalidate legislation independent of its authority to interpret the Constitution.

I am not sufficiently a student of the history of the Constitution to intelligently debate what the Founders believed with regard to "natural law" or rights inherent in a liberal democracy, but I would grant you that a right to be free of arbitrary and irrational deprivations of liberty animated the Bill of Rights, and might legitimately inform the interpretation of the Constitution.  But I am not prepared to say that the right to be free of arbitrary and irrational government action is an independent source of judicial authority or of rights that can be enforced by the judiciary.  Moreover, I am not sure how much work a right to be free from arbitrary and irrational deprivations of liberty actually does with regard to supporting an expansive interpretation of the Constitution.  On the one hand, it would not be necessary for the invalidation of the green-eyed-people-go-to-jail law; the Equal Protection Clause is more than up to the task.  On the other hand, it would not be sufficient by itself to invalidate laws that we think the Constitution invalidates or should invalidate.  A law prohibiting Nazi's from demonstrating in a mostly Jewish community is not arbitrary or irrational, but it has been held to violate the First Amendment.  A law banning the possession of handguns is not arbitrary or irrational, but it has been held to violate the Second Amendment.  And, with all due respect, a law restricting abortion would not, ipso facto, be arbitrary or irrational, but may nevertheless be unconstitutional.  

More importantly, however, I do fear that recognizing a judicial prerogative to look outside the Constitution, to look to "natural law," for the power to invalidate legislation would skew the constitutionally prescribed balance of power.  I agree with you that judicial discretion is constrained by the observance of precedent, the practice of explaining decisions, the fact that courts can only decide issues brought before them by litigants, etc.  That is why I do not fear a judicial philosophy that expands constitutional principles to circumstances not contemplated by the Framers, and that is not constrained by "textualism" or "originalism."  And I agree that the constraints on judicial discretion have been sufficient so far.  But keep in mind that the Court has never purported to look outside the Constitution for the power to invalidate legislation.  Even in its arguably most controversial decision, Roe v. Wade, the Court purported to interpret the Constitution, not to apply natural law.  I fear that if the Court were to look overtly to natural law, or even to surreptiously look to natural law while purporting to interpret the Constitution, it may erode its own legitimacy.  And while I might agree in the abstract that "an unjust law is no law at all," to empower courts to invalidate laws that they deem "unjust" would be tantamount to giving courts veto power over legislative enactments on policy grounds.  Should the Court be empowered to invalidate a progressive tax code because it deems the code unjust to the wealthy?  Should it be empowered to invalidate laws that regulate commerce because it regards them ias unjust to one party or the other?

Basman, the "right to be left alone" in the cases you discuss is the right to be free from intrusion in one's home or property.  That right both animates and is embodied in the Fourth and Fifth Amendments.  I do not think one needs to look far from the Fourth and Fifth Amendments themselves to determine its contours.  I don't see it as implying any extra-constitutional rights, or as somehow embodying a Millsian libertarianism.  

The "privacy" at issue in Roe v. Wade was not privacy within the meaning of the Fourth Amendment, i.e., the right to be secure in one's home or property.  Rather, it is a right of bodily autonomy.  I won't debate whether a right of bodily autonomy can legitimately be inferred from the Constitution, but I think there can be a legitimate argument regarding whether the act of abortion even implicates a right of bodily autonomy.  To the extent a fetus is a person or otherwise a being having moral status, then the act of abortion directly affects the interests of a third party.

But it is not my point that Roe was wrongly decided.  My original point is that differing moral compasses can lead to different results within the bounds of legitmate interpretation.  The Court could have drawn the line differently than it did, say at the end of the first trimester, without its decision being constitutionally illegitimate.  The Constitution did not compel the Court to draw the line as it did.  That's why it is legitimate to inquire about a potential judge's moral views.

- dhurtado

May 13, 2009 at 2:22am

Basman, the statement that "Government may not take away your liberty except according to law" does not tell us anything about the source of a court's power to invalidate a legislative enactment.  It merely posits that a government cannot deprive one of liberty unless a positive law authorizes it to do so.  And the original meaning of "due process" was that, even where positive law authorizes a deprivation of liberty, such deprivation may not occur without notice and a fair hearing, etc.  As Jhildner further explains, the Supreme Court later developed a doctrine of "substantive" due process" (as opposed to "procedural" due process), according to which the Court may invalidate laws that deprive one of liberty (or property) without sufficient justification.  That comes near to authorizing the Court to invalidate laws based on its own notions of justice.  To cabin the judicial discretion inherent in the doctrine of substantive due process, the Court has held that the doctrine can be invoked only with regard to deprivations of "fundamental" rights.  Fundamental rights, in turn, are, in additional to enumerated rights, those that have been historically and broadly recognized as fundamental.  

The problem with the doctrine of substantive due process, so defined, is that it is wide open to the predelictions of the jurist, depending on the level of generality at which a purported right is described.  There may not have been a historically recognized right to abort a fetus, but there arguably was a recognized right to make reproductive choices.  There is not a historically recognized right of gays to be married, but there is a historically recognized right of marriage generally.  There may not have been a historically recognized right to engage in sodomy, but there arguably was a historically recognized right to privacy in the bedroom.

- dhurtado

May 13, 2009 at 8:01am

...It merely posits that a government cannot deprive one of liberty unless a positive law authorizes it to do so...

How can one be secure in one's home and person and thoughts and not one's body? Why doesn't liberty in your ninth and 14th  amendment cover the liberty to do with your body what you want? So there the issue would not be those amendments conferring rights so much as recognizing the rights you have can not be taken away except by due process which finally came to include as in Canada the idea of subtsantive due process as well.

I find the notion that liberty does not include what one does with one's body unlkely (even if only by reasoning by analogy).

- basman

May 13, 2009 at 9:32am

correction

I find the notion that liberty does not include what one does with one's body *subject to law* unlkely (even if only by reasoning by analogy).

- basman

May 13, 2009 at 11:00am

Why is the following reasoning so problematic?

...The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation....

- basman

May 13, 2009 at 11:08am

p.s. I know it's received wisdom from left to right to assail this reasoning, but I hardly know why.

- basman

May 13, 2009 at 11:20am

p.s. I understand that Olmstead was a fourth amendment case about wiretapping, but my sense was this and the other dicta spoke to a broader more comprehensive idea, namely  rom Olmstead and as already quoted, "They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. *They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men"

In my first day of law school we were taught, if I'm remebering this correctly, that the common law developed the criminality of failing to provide necessaries by analogizing--itself one of the essences of legal reasoning--from case law that said not milking a cow was and making it suffer when its udders were full is criminal to saying if its a crime not to let an animal suufer by not attending to its needs, then even more so must it be for humans to negelct the needs of others they are legally comitted to . Something like that!

In my practice I have over the years involved myself and argued in courts high and low issues relating to duplicative litigation: res judicatta, estoppels of multifarious instances, with different tests running rampant depending how the estoppel was characterized. Till finaly I said "screw it, it all amounts to a general principle of duplicative litigation as abuse of process." I trotted out the policy reasons standing against re litigating cases and issues and issue which should have been litigated but were omitted from an action on a determined claim, and found they pretty comprehensively accommodated the fracturing of the principle into any number of rules and instances.

So, I'd tend to think,  if the government cannot without right cannot enter your house, take your goods, cannot proscribe what consenting adults cannot do sexually, cannot arbitrarily restrict your activities and comings and goings, your speech and actions and assembling and mobility and all  things Douglas laundary listed in Griswold and Blackmun summarized in Roe, there must be an underlyng first principle informing this various jurisprudence. And surely it is something along the lines of, as said above not by me, "...the federal government (the Fifth Amendment) nor the states (the 14th) may deprive anyone of their life, liberty, or property without due process of law.  This phrase, borrowed from the Magna Carta, guarantees the rule of law.  The Magna Carta used the phrase "the law of the land."  It basically says, "Government may not take away your liberty except according to law."  At a minimum, this means that deprivations of liberty must be in accordance with what the positive law says." That these first principles of liberty, as I say, don't include--and I like your phrase--bodily autonomy, one's doing with one's body what one likes subject to law, I find astounding to contemplate.

So as the long as the court balances this right of bodily autonomy more weightily than the need to protect the early fetus before its out of the womb viability, or before some other functionally drawn line, I'm, and I'm repeating myself, having a hard time seeing why tyou think the majority in Roe did such "twisting and turning".

I have always thought Roe, of the analysis in it before one gets to the liimits on the right of personal privacy or bodly autonomy, to be rightly and soundly decided.

I don't claim, as I said, any particular technically competent understanding of American consitutional law, though being a Canadian lawyer helps me understand the issues a little better than someone without legal training, I suppose. So I guess I'm looking for a good answer to the question why the reasoning in Roe that I cited above is so faulty or at least so questionable.

- basman

May 13, 2009 at 1:49pm

This may go against me from Roe, "...In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization)..."

But I wonder, without knowing, whether the unclarity Blackmun describes comes from the claim of "unlimited right" . For there is no unlimited right of privacy either and Blackmun winds up talking about what "the right of personal privacy includes..."

I think it's time for me to forever hold my piece in any event.

- basman

May 13, 2009 at 2:23pm

Basman says:  "

I find the notion that liberty does not include what one does with one's body *subject to law* unlkely (even if only by reasoning by analogy)."

Sure, the term "liberty" might include the freedom to do what one wants with his or her own body, but when you add the qualifier "subject to law" it becomes a tautology.  The very question we are trying to answer is how a court determines that a law restricting liberty (as all laws do) is an invalid exercise of state power.  My point is that the methodology should not be that the judge knows an invalid law when she sees it, but that there must be some kind of social compact regarding the kinds of values that are at least presumptively protected from regulation by the state.  In America, I think that compact is the Constitution, nothwithstanding that its stated priniciples are organic rather than static.

I try to take a look at your other posts a little later on.

Thanks

- dhurtado

May 13, 2009 at 2:51pm

I don't think it becomes a tautology and this point goes to why I think Roe is well reasoned.

If the first principle is we can do what we want till the law says we can't, then why is it problematic to reason that abortion is allowed up to a point. The crticism of Roe I'm aware of is not of the subsequent line drawing, it's with the grounding of the threshhold right in privacy and or at least it used to be but no longer the constitutional existence of a right of personal privacy

So our issue is not, or has not been for me, how a court determines whether a law impinging on liberty is an invalid exercise of state power. It has been: in what constitutional principle is the right of abortion grounded?

As to this:..."My point is that the methodology should not be that the judge knows an invalid law when she sees it, but that there must be some kind of social compact regarding the kinds of values that are at least presumptively protected from regulation by the state.  In America, I think that compact is the Constitution, nothwithstanding that its stated priniciples are organic rather than static."..

It's not clear to me that I at any rate was arguing otherwise. But what does it mean for Brandeis to speak of "the principle *behind* the the fourth amendment"?

One question that arises from what you say is whether natural law or natural right claims must perforce inform the constating law of any liberal democracy?.To say that the Constitution with its organic principles is the compact you argue for may be to beg that question for that assumes without argument, I tend to think, a positivist acccount of your Constitution.

- basman

May 13, 2009 at 3:28pm

dhurtado:  I should have figured you were a lawyer.  Sorry if I seemed pedantic in explaining things you already knew....

That said, I'm troubled by your willingness on the one hand to grant at least the possibility that the Constitution implicitly recognizes unenumerated rights but your insistence on the other hand that judges should not enforce them.  Who *will* enforce them?  The very branches of government whose actions are being challenged as unconstitutional infringements of individual liberty?  If that's your proposal, I think you need to explain why that would not be tantamount to a denial of such rights and why that would be okay with you.  Further, I think you need to explain what warrant judges have to ignore the Constitution.

I know that judicial review -- however well settled in the real world -- is a contentious point among some scholars.  However, I do not see it as optional.  The government comes into a court asking it to enforce a given law.  The other side says, wait a minute, you can't enforce that law because it's unconstitutional.  *if* the judge is persuaded that the other side is right, what is he or she supposed to do?  Enforce an unconstitutional law?  Why doesn't that violate the Constitution, the judge's oath to uphold the Constitution, and the supremacy clause of the Constitution?  When you refer to the "court's power to invalidate a legislative enactment," I think you're unduly characterizing judicial review as extraordinary and strange.  To me, the point is that judges are neither required nor permitted to enforce unconstitutional laws.  I do not see why that proposition is extraordinary, and view the alternative -- that they *must* enforce unconstitutional laws -- as far more strange.

The bottom line is that our constitutional order, from the outset, was not satisfied that a republican form of government alone would be sufficient to protect individual liberty.  (They were right.)  The founders felt compelled to explain that even an elected government could trample individual rights, and that it must not do so.  Initially they were mainly concerned with the federal government, because they had a great deal of faith in states.  After the Civil War, we realized that states could be just as dickish, if not more dickish, than the federal government, and so we made the same point about state government.  If one accepts these basic premises -- that rights exist to protect individuals against government action -- then I see it as an abdication to decline to enforce them.

No, without substantive due process or a similar doctrine, the equal protection clause would not be adequate in the case of the green-eye law if the green-eye law was a federal law.  As I mentioned before, equality before the law when it comes to *federal*, as opposed to state action, is an unenumerated right.  So too are the rights contained in the Bill of Rights when it comes to action by the states.  Equality before the law and most of the rights in the Bill of Rights have been held to be implicit in the Constitution and its guaranty of due process of law, which applies to both the federal government and the states.  To be clear, without unenumerated rights jurisprudence, you would have no ground to complain if the federal government passed a law that discriminated against you on the basis of race, ethnicity, sex, or religion, and you would have no ground to complain if your state violated any of the rights contained in the Bill of Rights.  Would you insist upon these distinctions if you were a judge?  Would you hold, for example, that a state may not segregate schools, but that D.C. may segregate schools, though it would violate an equality right you deem of fundamental importance?

You are worried that "liberty" is too vague, and that judges may just pull out of their robed arses whatever meanings they choose.  You don't answer, however, my point that they undeniably already have that ability in other areas of constitutional law where you have no objection.  You say that every law restricts liberty.  True.  It's also true that every law treats people unequally.  Somehow, we've muddled along with a strong and credible equal protection jurisprudence, though, and the same is true for privacy jurisprudence.

- jhildner

May 13, 2009 at 5:10pm

Jhildner:

I have no problem with your explanations of constitutional jurisprudence.  It helps me to know where you are coming from, and they may be helpful to other readers (non-lawyers) who are trying to follow our ramblings.

I believe I have created a fundamental misunderstanding of my position.  I am in complete agreement that there are unenumerated rights that are implied in the Constitution, and that courts have the authority and the obligation to protect those rights against incursions by the other branches of government.  But I had understood you and/or Basman to be arguing that there may be rights that are neither enumerated nor implied in the Constitution -- perhaps having their basis in natural law -- that courts also are authorized and obligated to enforce.  I am skeptical of the latter proposition, first, because I don't think the Supreme Court has ever purported to invalidate legislation based on extra-constitutional rights, and, second, because I think it would confer too much discretion on the Court.  Yes, the broad language of the Constitution's phrases already reposes much discretion in the Court, and that's why we need Justices who are more than just great legal scholars, but who have the right sensibilities and who will construe the Constitution, within the bounds of legitimate interpretation, in a manner that takes into account its impact on the litigants and similarly situated persons.  But I do not think it follows that the Court's discretion should be completely unbounded.

I don't want to belabor this point any further for now because it may be that I have misconstrued your position.  And, as often happens in these discussions, it may be that we are not very far apart at all as a practical matter.  I have no problem, for example, with the holding that the 14th Amendment incorporates the Bill of Rights as a restraint on state governments, and with the extension of the Equal Protection Clause (in requring strict scrutiny of disciminatory laws) to women, religious minorities and gay persons.  And I want Supreme Court Justices who have "empathy" and who will construe the Bill of Rights broadly to protect the minority against majoritarian tyranny.

- dhurtado

May 13, 2009 at 10:14pm

I -- and I think Basman too -- was suggesting that the observance of rights we deem fundamental -- which the founders viewed as "natural" or "inalienable" -- is required by the Constitution's guarantee of the rule of law even if such rights are not explicitly set forth in the Constitution's non-exhaustive and illustrative list of such rights.  Thus, such fundamental rights are not "extra-Constitutional" but rather implicit in the Constitution's provisions.  The key point, I think, on which we *may* have some disagreement, as Basman points out, is whether the Constitution is to be read with a positivist concept of law or a normative concept of law.  On the former view, as you point out, our substantive due process doctrine is problematic.  As I think John Ely said, "substantive due process" is a contradiction in terms, akin to saying "green pastel redness."  I am arguing that the normative view, which is not textually problematic in Ely's sense, is more true to the founders' understanding of what law means, and is more consistent with the nature of the document, which sets forth broad principles for the explicitly stated purpose of protecting something called "liberty."  Note that this is an originalist, even textualist, argument.  Now, this bit of reasoning is not sufficient in itself to get you to Roe, but it is sufficient, I think, for judges to understand themselves both authorized and required to protect individuals' liberty against assaults, even if such assaults come in the form of legislative enactments, and even if the nature of the assault is not among those explicitly recognized in the document.

In Dred Scott, the Supreme Court's grossest decision of course, Justice Taney made the off-hand remark that an act of Congress whereby one surrenders his property rights (over a slave) merely because that property was brought into a free territory, and committed no other offense, could "hardly be dignified with the name due process of law."  Although this was, of course, a horrible decision, it indicates that what we call substantive due process today was not always viewed as a vexing logical leap, but, rather, as a rather obvious point not requiring much elaboration.  Justice Taney's remark, and Dred Scott's reliance on what we call substantive due process, is often used by opponents of the doctrine to discredit it, but I don't think it does that.  Rather, it points out the difference between then and now, which is that we have been so thoroughly schooled in positivist legal theory that we literally don't understand the normative concept that came so easily to lawyers of past generations.

Well, I think that about does it for me.  Happy to read any response of course; fun talking with you.

- jhildner

May 14, 2009 at 1:37pm

As I said, I fully agree that the Constitution implies rights that are not enumerated, and that such implied rights are entitled to vindication by the courts.  But I am not persuaded that the Constitution implies ALL rights that might be deemed "fundamental" or as part of natural law.  For now, we may have to agree to disagree on that point.  But, at minimum, I think the Court should at least articulate a connection between a right it seeks to vindicate and the Constitution, if only to maintain the perceived legitimacy of the Court.

- dhurtado

May 14, 2009 at 1:54pm

Good stuff all the way around.

Thanks

- basman

May 14, 2009 at 6:04pm

p.s. Roe: good argument, anyone,  for its bad reasoning????????????????????????

- basman

May 14, 2009 at 9:53pm