Should the Supreme Court of the United States, arguably the most powerful legal tribunal in the history of the world, which for two centuries has overturned important state and federal laws, assume responsibility for identifying and enforcing fundamental rights not specifically mentioned in the Constitution’s text? This issue was the central focus of a recent and wonderful two-day symposium at the University of Nevada at Las Vegas.
A strong skeptic of judicial power, I initially intended to bury the idea of unenumerated constitutional rights in my talk for the conference, but a funny thing happened to me on the way to Las Vegas. I changed my mind, but not for the reasons scholars and judges usually provide for entrusting to unelected, life-tenured judges the difficult task of identifying and enforcing non-textually based fundamental rights.
My second thoughts were not based on relative institutional competence, our Founders’ natural law traditions, or a deep textual/historical analysis of the parts of the Constitution scholars usually point to as justifications for allowing judges to enforce unenumerated rights. Instead, my change of heart that I communicated at the conference was based on the unfortunate reality that the Supreme Court does not decide cases based on text or history anyway so we might as well give the Justices the discretion to discover unenumerated fundamental rights because that is essentially what they do on a regular basis. We just need to be honest about it—all of it. Perhaps if scholars and judges explicitly condoned the Court finding non-textual fundamental rights, we might actually bring some or at least more transparency to the Court’s historic method of constitutional interpretation across the board.
There are well-rehearsed formalist arguments against Supreme Court Justices discovering and then enforcing unenumerated rights which, at first, I found persuasive. The most logical justification for such a power would come from the Ninth Amendment, but the Court has been unwilling to rely on that empty vessel of a provision for any substantive content. There has been renewed interest in the Privileges or Immunities Clause by scholars and a few faux originalists on the Court, but the Justices gutted that provision well over a century ago. It is highly unlikely a majority of Justices will reverse that precedent. Additionally, the text of the Clause applies only to citizens not legal aliens which makes using it as a font for fundamental rights highly problematic. Finally, judges using the Due Process Clauses of the Fifth and Fourteenth Amendments to find substantive rights is difficult textually given that both provisions allow for life, liberty, and property to be deprived by the government subject only to the procedural sounding requirement of “due process of law.”
Of course, these are just formalist arguments and there are non-frivolous formalist responses to each of them, but for someone opposed to non-textual fundamental rights, these legal theories are more than sufficient to suggest the Court should limit itself to those rights actually expressed in the Constitution. Moreover, when the Justices have enforced non-textual rights, such as during the long Lochner era, or with abortion in modern times, the Court’s decisions have led to strong backlashes both legal and political that called into question the wisdom of the Court imposing its own values on the rest of the country in the absence of textual support in the Constitution.
Or so I thought as I prepared for the Vegas conference. But, as mentioned earlier, I have changed my mind and now believe that the Court should create and enforce fundamental rights whether textually based or not. Most of constitutional law is untethered to text and history, and that is unlikely to change. Therefore, my modest but serious proposal is for the legal community, including the Justices, to admit that Supreme Court created constitutional law is composed of judicial invention of rights with little or no connection to text. That being the case, why should the Justices be limited to that text when defining our country’s most important moral commitments? After all, Professor Laurence Tribe argues that we have an “Invisible Constitution,” and Professor Akhil Amar claims we have an “Unwritten Constitution,” so why should we let the absence of text stand in the way of a better Constitution?
In his Foreword to this Law Review’s 2015 edition, University of Chicago Law Professor David Strauss wrote a detailed, lengthy, and persuasive article demonstrating how little the constitutional text matters to the Justices. The examples abound. There is no equal protection clause applicable to the federal government, so the Court made one up out of the Fifth Amendment’s Due Process Clause. The First Amendment says “Congress” but somehow magically applies to the President. There is no “dormant commerce clause” in the Constitution but the Court pretends that there is.
Even where the Court has identified real text, like cases involving freedom of speech, the commerce clause, or the Second Amendment, it is the Court’s own prior precedents and the Justices’ values that do the work, not any serious study or application of text or history. Professor Jud Campbell has demonstrated that almost the entirety of the Court’s convoluted and comprehensive free speech doctrine cannot be justified by reference to either the text or history of the First Amendment. Our formal textual commitment to the “freedom of speech,” as well as most other constitutional aspirations are fleshed out by a method of common law decision-making not text-bound analysis. At most, the text is a jumping off point, although we have numerous constitutional rules, such as the Court’s sovereign and qualified immunity doctrines that have no basis at all in text. Nowhere in the Constitution does the text say or even suggest that the federal government cannot be sued without its consent, yet the Court has held exactly that. The reality is that much of constitutional law is both invisible and unwritten.
The question, therefore, is since text plays only a negligible role in constitutional interpretation, should the Justices simply throw up their hands when asked to identify unenumerated fundamental rights? Given the rest of our common law constitutional law, there is no compelling reason to make the absence of text a barrier the Justices cannot cross.
The Justices have already held that applicants to public universities have a “right” to compete for admissions without race being a factor in the process (unless strict scrutiny is satisfied); public sector union members have a “right” not to be charged mandatory dues if they don’t join the union; the states have the “right” not be “commandeered” by Congress absent a generally applicable law; and people have the “right” to possess a handgun in the home despite constitutional text (and history) strongly suggesting the right to “keep and bear arms” is limited to militia use. Other than the gun example, the Court often talks more about limits on government than rights for the people, but the results are exactly the same. Text simply does not matter to these outcomes so why should its absence limit judicial recognition of rights the Justices deem important and fundamental.
Some will argue that at least we have an equal protection clause, a free speech clause, and a gun clause allowing the Justices to spin off their rules, sub-rules, and sub-sub rules governing speech, affirmative action, and gun control. But that is formalism at its most formal and least persuasive because there are non-frivolous arguments that the Constitution also contains provisions which allow judges to identify unenumerated rights such as the Ninth Amendment. Whether judges should do so cannot be answered through text and history any more than free speech, federalism, or equal protection doctrine is generated by text or history.
Let no one forget that the great opponent of substantive due process, Justice Antonin Scalia, who repeatedly said the doctrine was not justified by constitutional text, also said that he would not follow the crystal clear language in the Eleventh Amendment because that provision is “important not merely for what it said but for what it reflected: a consensus that the doctrine of sovereign immunity, for States as well as for the Federal Government, was part of the understood background against which the Constitution was adopted . . . .” All background, no text, was good enough for even Justice Scalia, an alleged die-hard textualist and substantive due process opponent, to justify sovereign immunity, so why should unenumerated fundamental rights be off-limits given that they can be reflected in and through various constitutional provisions as well as a strong natural rights consensus among the Constitution’s drafters and ratifiers?
In the best of worlds, the Justices would admit that what they have been doing all along is common law, non-textual, judicial creation of rights (and limits), and if the stakes are important enough, there is no reason why they should not do the same for non-textually expressed rights–as long as they do so honestly and transparently, which is why, alas, this post presents merely a modest proposal.