Revising my Rawls Paper: Abstract and Outline

Hello, readers--

I have decided to expand and improve my paper on substantive due process and John Rawls' "public reason".  This will mainly be a summer project, as my time these days is limited by graduate school classes.  However, I have written an abstract and outline, which I hope will govern my revision efforts.  I would certainly appreciate any and all comments!

(the abstract is way too long, I know)

Abstract:

            This paper seeks to expand and to test the philosophical foundations for substantive due process (SDP).  It offers a tripartite structure for thinking about the doctrine: the incorporation doctrine, the Scalia-Rehnquist historical framework, and the personal autonomy or privacy framework.  To test these structures, I draw on John Rawls’ “public reason” theory as described in his Political Liberalism and revisited in a later essay, “The Idea of Public Reason Revisited”.  I add my own categories, depth (historical) and breadth (universality) for assessing the strength of the public reason invoked.   After offering a critique of Rawls’ Supreme Court as the exemplar of public reason, I reach the conclusion that the doctrine can support SDP in its first two iterations.  The third, the personal autonomy cases represented by such as Roe, Casey, Lawrence, and Griswold, public reason cannot support, as such an approach represents judicial opinion rather than constitutional interpretation, and does not represent a deep and broad public consensus.

            I offer then a critique of efforts to substantiate the latter category of cases, especially approaches offered by Professors Michael Dorf and Laurence Tribe.  I argue that Tribe and Dorf are forced to appeal to doctrines inferred from the Constitution as though they were co-equal with the text itself.  Therefore, they contend that the Court’s privacy or autonomy doctrines stand on an equal footing with necessary, tightly cabined expansions and applications of such as the 1^st, 4^th, and 5^th Amendments from which they draw their justification.  Arguing that the Court’s opinions seldom attain constitutional status (by again invoking public reason and the role of the Court), I argue that privacy is not a constitutional right, but merely shorthand for a collection of opinions and doctrines surrounding certain substantive guarantees of the Bill of Rights.

Tentative Outline:

1^st Section: Problems

--Identify the problems with substantive due process (why its legitimacy is questionable)

--Identify the scope of SDP (why we can’t probably just do away with all of it) This is the reason to find some external basis: can’t live with it, can’t live without it

--“X, BUT YET, Y”: use Amber’s method

2^nd Section: Public Reason—definition, necessity, structure

--The Definition of Public Reason and the SC’s role (exemplar)

--Why Rawls?  Why Public Reason (not personal or unique to Rawls)

--Why, indeed: the Necessity of Public Reason (Ackerman)

--Tripartite Structure

3^rd Section: Put it to the Test

--Palko/Incorporation Test

--Scalia-Rehnquist Test

--Privacy Test

4^th Section: Objection!

--summarize: Tribe and Dorf: 9^th Amendment, Due Process; Poe Doctrine

--illegitimacy of building doctrine on doctrine (KEY POINT--EXPLAIN)

--Untethered to the Constitution? reiterating the need for public reason

--Tribe: Geodesic Method (Invisible Const.)—certain expansions are unavoidable

--privacy/autonomy not a right in its own right

--RETURN TO RAWLS: THIS REPRESENTS JUDICIAL INNOVATION, NOT PUBLIC REASON: a judge’s opinion cannot overrule or be a substitute for the law (doctrine as opinion)

--shorthand for a set of similarly-themed expansions on a few Amendments in the bill of rights

Reflections on Law as Literature, and Other Remarks

 

        This entry picks up more or less where the last one left off: with an assessment of the book On Reading the Constitution by Michael Dorf and Laurence Tribe.  In this book, Dorf and Tribe argue how one should and should not read the Constitution (as you might guess).  Among the methods one should not use are Disintegration, in which a reader treats every clause, sentence, and article in isolation, apart from the textual, historical, and theoretical context in which it lies, and Hyper-Integration, a method marked by a reader's insistence that the whole Constitution can be explained with one comprehensive theory, and then proceeds to shoehorn uncomfortably any part of the document unexplained by the unified theory. 
        In the last entry, I argued that the use of the 9th Amendment as a source of fundamental rights gives judges a blank check of constitutional legislative power.  I argued further that it is better to understand the 9th Amendment as a tool of civic education, an instrument outside of the hands of the unelected judiciary, whose unique power to discern fundamental rights on behalf of the people is never explained by either Dorf or Tribe.  I argued that the people ourselves are best able to define what else we want our Constitution to protect beside those enumerated.
        Of course, we would not always do what's best.  But then, neither do judges.
        Here I'll pick up with some further thoughts, as I continued to read their book.  Dorf and Tribe build on Ronald Dworkin’s claim that the use of precedent in interpretation is like a chain novel, where several authors write discrete segments of a book.  One picks up where the other left off, using what’s already been said to inform their later choices.

        They point out some problems:

        Judges sometimes overrule precedent (break with the previous author).

        Judges sometimes restrict their decisions/opinions to the facts of the case (like an interlude not bearing at all on the story as a whole).

        Some other problems which occur to me: unlike chain authors, judges can be separated by centuries, and as such, the context and people about which they write will be very different from one another.  As a result, the facts of a distant case may be difficult to reconcile with the facts of a current case, as a coherent storyline should be reconcilable across authors.

         Imagine a two-century jump in the chain authors’ story; it would be a challenge to continue in a coherent way, such that readers would be willing to buy any asserted consistency between the events of a story spanning such disparate time periods (unless it’s a time traveller’s tale)

            Therefore, witness the difficulties in applying a case like McCullough v. Maryland or Gibbons v. Ogden to a present-day Commerce Clause case.  The facts of those cases as compared to any modern Commerce Clause case would necessarily be so different, or at least framed in a very different world, as to make them irreconcilable.  The concepts may yet apply (and would have to be broad enough, or be expanded enough, to make the cases operate by a coherent principle), but the concepts and facts could hardly both be commensurable across centuries.

            Perhaps the analogy between judges and chain authors doesn’t work that well.

            Because authors must create the facts of their cases, or because chain authors must rely on those already provided (unlike judges, who get a new set of facts every time, the chain author must continue to work with the same set), it allows greater consistency in the chain story, and also creates a greater expectation of such consistency from the readers.

Another problem: allowing a chain novel to continue from the premises created by only the author before them, rather than recurring to a fundamental set of written principles with each new author, allows much great straying from the story’s starting point because it allows building on a framework erected around a fundamental principle as though that framework were the fundamental principle itself.

            Therefore, Tribe and Dorf allow a case like Roe v. Wade to proceed from the starting point of a privacy right created by previous cases like Griswold, Eisenstadt, Poe, etc.  They allow the authors of Roe to proceed from the point at which the previous authors stopped, like a chain author should, without reference to the beginning of the story, as a judge should.

            In a novel, authors can’t be referring constantly to the beginning of their story or else the book would move at a snail’s pace and no one would buy it.  It also would interrupt a linear, narrative flow.

            But such reference is ESSENTIAL in constitutional interpretation, because it does not tell a story, but rather provides a stable, predictable framework which can in turn guide the outcomes of many different stories (cases) which come to it seeking resolution.

            In that way, perhaps judges are less chain authors than the litigants, who have written their story to a point where judges and the Constitution provide guidance as to where they must proceed.

            Regardless, without frequent reference back to fundamental principles, and a text that cannot and must not be interpreted infinitely to whatever end, judges gain the ability to take their story in virtually any direction they wish, especially as case law grows more and more voluminous.

            What Tribe and Dorf refer to as the irreducible problem of value choice in interpreting the outcome of a case from precedent, history, text and structure (with which I agree), will become an infinite source of innovation if judges act as chain authors, building on the possibly erroneous or outdated assumptions of their predecessors.  Perhaps indeed judges cannot avoid making value choices; perhaps they must interject some of their own preferences, even in making choices as to method.  But regardless, judges must forever remain tethered to the text itself, and must take great care in interpreting such malleable words as “liberty” in the 14^th Amendment.
           In sum, case law cannot take on co-equal legal status with the Constitution itself.  It must remain a subordinate enterprise open to frequent reevaluation, or endless judicial innovation may well ensue.  I think that this is what happened when Tribe and Dorf discuss Griswold and Roe: they use Griswold to establish a privacy right, and then in turn use that privacy right (and related cases) to justify Roe.  Therefore, they have rested Roe not on the Constitution, but on a theory derived from the Constitution.  That this is an error should be manifest.

            Essentially, the point remains: T+D have yet to come up with a firm, articulable principle that will cabin the creative powers of judges to make value choices.

            If the necessity of such value choices remains in spite of whatever attempts to cabin oneself to originalism or textualism or strict precedent, etc then some rule, some method for restricting the bounds of interpretation is ESSENTIAL because without it, an elastic term like “liberty” and its judicial definition will continue to be stretched.

            This is, in my judgment, the greatest failing of this book: it does not provide an acceptable means or principle by which judicial value judgments in defining the appropriate range of a liberty can be controlled.  It invites readers interested in searching for fundamental liberties and rights to begin from those enumerated in the text, but does not do enough to place boundaries on judicial elaboration.

            I think Tribe and Dorf are comfortable with that.  They seem to be from the tenor of the book, anyway, because they take issue with no cases in which the Court sided with an individual or minority on liberty grounds.  They do little to show what goes too far.

            They offer impressive insights, but seem to lead to a rapidly expanding zone of judicial power without a robust means of stopping or limiting it.

            And especially, in that vein, the book does not articulate much of a reason for which judges should be entrusted with such expansive powers.

            If such choices as to the proper definition of rights and liberties cannot be avoided, and the result is tidal shifts in the range of legislative power vis a vis judicial power, then should this not be an argument for taking more interpretive power out of judges’ hands?  Should this not sound an alarm that our judges really can do almost whatever they want to do with our supreme law?

Which rights can really count as constitutional must rely on something more then T+D’s analysis in chapter 3 where they make the claim that there is no qualitative difference in the extent of judicial innovation between a judge defining that three years to wait violates an accused’s right to a speedy trial, and a judge’s definition of the term “liberty” to include an abortion right.

            This clearly cannot be true; it is reductive to say the least.

            Law, perhaps by judicial pronouncement, must be able to articulate a difference between setting a reasonable limit to what constitutes “speedy” with regard to a trial, and judicial definition of the term “liberty”.

            The words “speedy” and “liberty” are OBVIOUSLY qualitatively different in how far they can be interpreted, and which levels and sorts of activity can be contained within them.

            “Liberty” can refer to a naturally endowed freedom to do LITERALLY ANYTHING by the presumption that a human is allowed to do whatever he or she is able to do, and not positively prohibited from doing by duly enacted law (or on a natural law understanding, anything a person is able to do minus what is deducible by reason to be prohibited).

            “Speedy”, with regard to a trial, connotes a far less expansive range of activity; it appears to contemplate a defendant’s right as “ASAP” with some small allowance given to administrative and logistic realities.  It admits of far less expansive definition than “liberty”, especially when it refers only to a specific right to trial.  So defined, elaboration on what “speedy” demands can draw much more easily on precedent and historical practice, which offer guidance on what constitutes a “speedy” trial as opposed to what constitutes “liberty”, a term I expect one will find largely to be undifferentiated in its common and legal understandings.

            And as for history and precedent, it’s worth reminding T+D that “due process of law” without which liberty cannot be violated, only took on a substantive component in the 20^th century (with the possible exception, as Tribe lays out in The Invisible Constitution, for Scott v. Sanford where a prototypical version appears as Taney refers to the Takings Clause and Due Process Clause of the 5^th Amendment).  According to an article written by Chapman and McConnell, the defenses of due process in the common law only referred to the proper procedures by which liberty could be deprived; it did not refer to substantive limits on legal process, or specially protected rights and liberties until American judges created that doctrine in the 20^th century.

            In conclusion, I am concerned about the results of judges getting too creative with the Constitution.  I see little reason to suppose that judges are better suited to give the document meaning than all others, and I worry that overly creative elaborations on the Constitution’s explicit text allow unelected judges to impose law to which the people have not given any—even implicit—consent.

Secession

Toward the end of Lawrence Tribe’s book, The Invisible Constitution, he makes a curious claim: that a rule barring state secession was established more on the Civil War battlefields battlefield than the halls of courtrooms, congresses, or constitutional conventions.

I don’t find this persuasive.  Especially in light of recent (admittedly half-hearted) secession petitions making the rounds online since the 2012 presidential elections, it seems opportune to make a constitutional argument against secession—why secession is forbidden legally, not martially.

The Constitution’s text contains no mention of secession, so we will have to confront general themes and principles of the document—parts of what Tribe would call the “invisible constitution”: implicit facets of the written document

A Word for Secession

I’ll begin by using Tribe’s geodesic model: certain provisions of the constitution require tightly bounded expansions, or shields, to protect the full meaning and implications of explicit textual provisions.

For example, here an expansive reading of the 10^th Amendment may even suggest that the states retain sovereignty enough to go their own way should they so choose.  After all, the federal government nowhere empowered to prevent secession; therefore, secession remains to the states as an option should they choose to do so.

It’s worth noting that such an interpretation would require at least a myopic reading of the Necessary and Proper Clause, if not virtually ignoring the concept entirely.  But if any or all of the federal government’s domestic powers are to remain robust, or perhaps even to mean anything at all, the geodesic model (as contemplated by the NPC) must apply to congressional powers as well.

Argument Summary

None of Congress’ domestic powers can be effective if the states are free to leave (and thus to negate federal law) with impunity at any point they choose. 

Also limits federal policymaking if the states have that threat to hold over the government (game theory of policymaking—limited by what the states are willing to accept; neglects true locus of government decision-making and accountability: the people)

            Also, constitutional power-ups like the Necessary and Proper Clause and the Supremacy Clause would amount practically to nothing.  The states’ ultimate trump card would severely cuff federal legislators; they could not implement the full measure of their powers or of their preferred policies for fear of driving even one state to lawful secession.  Each state’s consequent veto power would make the supremacy of federal law exclusively ceremonial, and make the Necessary and Proper Clause an empty letter.

            Of particular note, I think, is the little-noted Republican Clause in Article IV, on which the only case I know of that dealt with secession (Texas v. White) rested.  The federal government cannot guarantee to every state a republican form of government if such states are free to unshackle themselves from federal control at any moment.

Texas v. White

            The only case I’ve read which dealt with the legal issues surrounding secession, White dealt with loans which Texas had accrued during the Civil War; following the war’s end, (I believe that) Texas claimed that since it had made those loans as an independent nation whose government had since collapsed, the loans were invalidated, and the state bore no continued duty to repay them.

            The Supreme Court ruled otherwise, declaring that Texas could not leave the Union; its supposedly new government had been entirely illegitimate, and as such the true legislature of the state was on the hook for the borrowed cash.  The Court hung its decision on the Republican Clause in Article IV, reasoning that the federal government would be deprived of its duty and power to guarantee each state a republican form of government if secession were legally permissible.

            This is the closest—I believe—that the nation or the Court has come to addressing the theory and legality of state secession.  I agree completely with the Court’s reasoning: without a tacit prohibition on secession, federal power, including the Republican Clause, would amount to almost nothing. 

This is especially true if one notices that Congress has also a duty to exercise certain of its enumerated powers; if not a duty written into the Constitution, then surely there is an expectation that such powers delegated will be responsibly and fruitfully exercised.  If the people, through their ordaining Constitution, gave certain powers to the Congress in the hopes that their nation would therefore become more perfect, then any state interference arising from a threat to dismember the union should not only engender outrage from the people, but legal condemnation on the grounds that such renders the Constitution’s plan moot, and places the states above the people as the nation’s ultimate sovereign.

Enervation of Domestic Powers

Such a principle implicates many of the other domestic powers of Congress.

            For example, the power over interstate commerce: how can Congress regulate interstate commerce if the states are free to bail, and thus to frustrate any such regulations whenever they choose?

            Further, the power over the common defense: a state free to leave at any point could easily become a staging ground for foreign invasion, a concept perhaps largely irrelevant in the modern era, but not when the Constitution was ratified (and possibly relevant again in the future).

            The threat of such departure, as well, would give each state an essential veto power, making Congress timid with the exercise of any of these powers.  Any and all federal domestic powers would amount to very little if the states could express a veto over all such regulations at any time by secession.  Though a blunt instrument, secession would produce a chilling effect on everything Congress does; any and every regulation, expenditure, tax, etc. would have to be passed so as not to offend the people or legislature of a particular state.

            Such chilling effects go well beyond the normal hesitation lawmakers must feel when enacting policy that risks offending their constituents.  I’m all for limiting Congress’ powers more than the present state of affairs evinces, but the power of such a threat goes beyond mere limitation into emasculation, rendering Congress’ powers largely ceremonial or hypothetical.

            The federal government cannot operate on the individual citizens when the states can intervene at any point by seceding.

            If the federal government may not act on the citizens directly, then we have no union; we have a confederacy.

            A confederacy is precisely what we had with the Articles of Confederation.

            The Constitution was erected to fix the problems of confederacy.

            Therefore, we cannot have a confederacy because the Constitution cannot be construed to recreate the very problems it was built to ameliorate.

Foreign Policy and Incomplete Sovereignty

            And on that note, it bears brief mention that the states do not possess the full measure of typical sovereign authority, especially in the realm of foreign relations (e.g. CASES).  As such, to secede would not just be to exercise a reserved domestic power as discussed under the 10^th Amendment above, but also to assume to the state the powers over foreign affairs expressly delegated to Congress.  To exercise the full measure of a sovereign nation’s powers in that manner is usurpation, not merely a necessary option in the residuum of state power.

Secession Procedures, or the Impracticability Thereof

If secession were a viable option, surely there would be in the plan that bound the states together some procedure for departure.  In the absence of such a plan, what would constitute an acceptable method?

As a hypothetical scenario: imagine a federal law so unpopular in a state that its citizens hold a secession vote.  Let us say for now that the law in question is the Affordable Care Act (Obamacare); this seems appropriate in light of the public outcry, and the refusal of several governors to accept federal funds to implement it.  Let us suppose that the state legislature chooses to send a secession bill to the citizens, who pass it narrowly by referendum.

            What would happen to all the people in the state who want to stay?

            How could the federal government guarantee a republican form of government to this new government in the future?

            Leaving this hypothetical momentarily: without any standardized secession procedure, what if a state legislature voted to secede against the wishes of a majority of the state’s residents? 
            In sum, what would an acceptable secession procedure be?  If the Constitution does not say, then how could it be determined?  Excessive confusion would ensue if each state were responsible for determining its own secession procedures—if a state legislature did vote to secede against its citizens wishes, then how would a newly elected body, sent to mend ties with the Union, go about re-entering?  The normal procedures for admitting new states into the union did not contemplate incorporating (or re-incorporating) sovereign nations.

14^th Amendment

            A brief word on the 14th Amendment: the themes covered here are the same as those relevant to other Congressional powers, but the 14th Amendment, because of its importance in modern American law, deserves singling out among those amendments which grant Congress enforcement powers beyond the powers in Articles I and IV.

           This amendment so radically changed the relationship between the states and the federal government that its enervation spells special trouble for the people as a whole, should a theory of secession so emasculate Congressional power as I predict it would.  See Akhil Amar’s “The Bill of Rights as a Constitution” for further elaboration on this point, but for the moment, trust that the 14^th Amendment’s powers changed the federal government into a sentinel over the states, the defender of the trampled minority.  To exhaust that power by threat of lawful secession would spell the end, essentially, of the 14^th Amendment’s powers.  Imagine if Arkansas had felt itself unbound by federal power, unrestrained by the Constitution, and free to depart at its pleasure after Brown.  There may never have been a Cooper v. Aaron; indeed, there may never have been a Brown at all.  Perhaps there only would have been a feeble federal government too concerned with another Civil War, or at least too concerned with a fractured union, to do anything about segregation.

The Equal Protection Clause’s right to interstate travel also would fall.  This isn’t worth as much discussion as the prior topics, merely worth a mention.  There can be no right to free interstate travel if the states retain the same authority as nation-states any more than there is a right to travel from the U.S. to Spain, or any other independent nation.

The states would likely still accept most federal regulations even should a right to secede be recognized, but the fact that they could leave at any time would deprive many or most federal laws of their practical effectiveness, because it would grant to the states, either to the people or the legislature, a permanent veto power.

A theory of secession is inextricably tied to the antiquated and rejected notion that the states are independent entities bounded together simply by each one’s mutual will and pleasure.  Such an idea ignores the clear postulate that the nation is bounded together, and ultimately accountable, to the people as a whole, not to the states.  The federal government is ordained by the people, accountable to the people, and supreme over the states.  The states have no power to disintegrate a union that they did not create.  Rather, the people molded the states into a new form, bounded together absent their consent as sovereign nations.  The people constituted a new sovereign, whose collective power overrode the fractured, disjointed powers of the states.

            “We the People…do ordain and establish this Constitution for the United States of America.”

            The last five words take on new meaning, then.  Those states, previously independent, are now united into a single new entity through the ordainment and establishment of We the People.

Concessions to Federalism

            A unified country where the national is superior to the parochial does not make the states feeble subdivisions of the federal government, necessarily.  The states could still retain exclusive control over certain areas of law and governance, as they do (or should) thanks to the 10^th Amendment.

            But Congress and the federal government as a whole are granted explicit supremacy in their domains, making them doubtlessly superior to the states.  And the collective character of those powers speaks to the indissolubility of the union.

            As such, the states may not unilaterally leave at their pleasure, because to do so would negate federal powers, ignoring the superiority of nation to state (and for that matter, the superiority of people to state and nation both), and enervating most federal powers and duties.  The articles of confederation failed precisely because the central government could not operate on the individual citizens, and had little practical power over the states.

Conclusion and Summary

The purpose of this essay was to provide some philosophical and legal force to the argument in Tribe’s book, which rests on military force

            It’s a curious claim, that the nation’s unity rests more on the threat of arms and superior martial might than legal or even moral force.  Our nation remains united because the federal government had/has the more powerful army? Hardly a principle befitting a democratic republic with the rule of law.

            The argument that the secession principle was settled on the battlefield—that the Union stands because the South lost—reminds one more of an empire than a nation whose power derives from law duly enacted from the consent of the governed.

Not Your Judges' Amendment

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

            --Our Ninth Amendment

Several weeks ago, I read a two-part article by Cornell Professor Michael Dorf on Justia.com’s constitutional law blog.  Professor Dorf wrote about Roe v. Wade because of its upcoming (at the time) fortieth anniversary, addressing common criticisms of the decision.  I address here his contention that it is no problem that Roe rested on rights nowhere explicitly granted in the Constitution.  The document, Dorf admits, contains no mention of either privacy or abortion. 

I argue instead that the 9^th Amendment should not be left in the judges’ hands because of the bottomless grant of power that that would represent to fashion new rights deemed “fundamental” with little to no yea or nay from the people.  Rather, the 9^th Amendment is better conceived as a reminder for the people, as a tool for civic education.  Better than a source of judicial power, We the People should take it as a reminder, passed down from one generation to the next, that we must protect our rights against overweening federal power.  We are better suited than judges to decide which rights we consider fundamental, anyway.

Dorf writes:

“So, what general language encompasses the right to abortion? The best textual answer would point to the Ninth Amendment…Under the most straightforward reading, that language says that there are unenumerated rights that limit the federal government.”

I don’t see any mention of the federal government in the text (but assuming it does, wouldn’t it also limit judicial power as part of the federal government?).  But that aside, we move on:

“Moreover, a provision of the Fourteenth Amendment tells state governments that they may not ‘make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ which, under a similarly straightforward reading, binds the state governments to respect the same rights, including the unenumerated rights, that limit the federal government.”

Dorf surely knows that the Privileges and Immunities Clause of the 14^th Amendment, though historically probably intended to impose the restrictions of the Bill of Rights against the states, failed to accomplish that end after The Slaughterhouse Cases, in which the Court read this clause very narrowly.  Although I don’t have any problem with advocating a forgotten clause’s renaissance, I think we should be clear that that’s what’s happening when Dorf makes that claim.

He goes on:

“Sticklers have long objected to the doctrine of ‘substantive due process’ that was used in Roe, but their real quarrel is with the Court, rather than the Constitution. The actual text—in the Ninth Amendment and the Privileges or Immunities Clause— provides a sound basis for the recognition of rights that are not expressly mentioned.”

Here is Dorf’s key problem, set up by the previous paragraphs.  He fails to connect the 9^th Amendment and judicial power; he fails to prove that judges ought to be the ones who give shape to those unenumerated rights.  That this amendment recognizes that the people retain rights nowhere explicitly granted in the Constitution is obvious.  That the judiciary is uniquely and exclusively empowered to define and elaborate these rights is not expressed in the Constitution nor argued by Dorf.

And that’s a huge gap, one that an academic should not be excused for neglecting.  In Marbury v. Madison, Justice Marshall committed a similar error: despite his solid reasoning for the proposition that a written Constitution, enacted as supreme law, must be preferred and override any subordinate law enacted pursuant to it, he fails to even address the question as to why judges are uniquely and exclusively suited to pass judgment on such matters.

Still, as Richard Posner noted: “Judges Are Not Law Professors”.  Where a judge has less opportunity and need to structure his or her opinions for optimal logical consistency, a law professor has both the incentive and the requirement to build his or her arguments thus.  Perhaps we can forgive Marshall for this oversight as We the People have had endless opportunities to remove this power from the Court’s hands.  In some sense, perhaps we have collectively consented to add this power into our unwritten Constitution. 

He continues: “Thus, critics of Roe who invoke the Constitution’s supposed silence on abortion must be prepared to jettison much more than abortion rights. The Court found an unenumerated right of married couples to use contraception in 1965 in Griswold v. Connecticut. Must that right also go?”

Yes.

Two points: the law in question in Griswold had not been enforced in ages when it went to the Court.  A few enterprising folks deliberately broke the law to test the law in court, even calling the police beforehand to ensure that they would be on hand to detain the violators.  As such, it’s hardly even a case or controversy in the Article III sense.  Second, married couples are hardly in need of the Court’s protection.  The use of contraceptives is so widespread and common in American culture that it’s hard to imagine any state, city, county, etc. passing a law banning their use, and having anyone take that law seriously at all.  This case and its rule could easily be forgotten and no one would be affected.

“And if the failure of the Constitution to use the word “abortion” means that Roe is wrong, then there would also be no constitutional basis for resisting a law that required a woman to have an abortion. The pro-lifers who denounce Roe cannot be happy with that consequence.”

Another two points: why would such a crazy policy need a constitutional basis for resistance?  Why is the normal political process not defense enough against such a law?  Why must it redound to the federal courts to protect us against all manner of the evils of state legislatures?  Second, it’s hard to imagine any state passing such a law.  I suppose we are less removed from the days of eugenics than any of us would like to admit, but I am willing to gamble that public support for any such law would be so low as to deter any state legislature or legislator who got a wild hair to improve society through genetic manipulation.

And again, even if that were to happen, I don’t see why it’s important or necessary to call the Constitution or the federal judiciary in to the rescue (not that it would necessarily help; famed justice Oliver Wendell Holmes, for example, favored eugenics policies).

I think Dorf and probably other legal academics fall into a familiar trap: to try to make the Constitution into a panacea for all of our social problems.  Many do this by making every good thing under the sun into a fundamental right.  Much as I hate to agree with such as Scalia and Rehnquist, I do believe that they were right when they counseled that the Constitution cannot be all goods to all people; that the Court must not and cannot become a roving social crusader; that judicial duty is not to do all good things to all good people.

Further, to avoid embroiling the Constitution in our mundane political battles, above which it must stand to maintain its broad, deep legitimacy, it is best to restrict our definition of fundamental rights to those on which we, as a nation, can widely agree.  A fractured public, one which cannot seem to agree on the status of abortion as a fundamental right, or even derivative of any fundamental right, shows that such a right is not fundamental in our cultural or legal understanding.  I have argued in a previous entry that substantive due process, or fundamental rights jurisprudence, should not extend to those rights on which there is not a deep and broad consensus in our culture, without which it is nearly impossible to argue that such a right is indeed fundamental.  If not on consensus, it seems to me that there is little remaining place on which to ground that adjective.

But to return to my own view on the 9^th Amendment: I think it’s better to entrust its care to the people rather than the judges, who are in no special position to define a fundamental right, certainly no more than the nation as a whole.  When the Bill of Rights was ratified, it was not understood to be a set of judicial weapons, but rather tools by which the people ensured that they could keep a very close eye on their delegates.

Perhaps the earliest exercise of constitutional review in our history came from the people themselves, not from the judges.  After the Alien and Sedition Acts passed, no court ever ruled on the law despite its clear violation of the 1^st Amendment.  Instead, the people passed their judgment by acquitting accused violators through jury review, and tossing out the Federalists at the next congressional election.

While I’m not exactly an advocate of popular constitutionalism in most cases (because I think it would be a rare thing for the people to speak out with a such a clear, unitary voice in most such matters), I support its use here.  The 9^th Amendment gives the courts a blank check of constitutional power to deem any right they like as fundamental.  In the absence of a principled limit on the exercise of such power, I cannot support its use by the courts.

Post-Script:

            Dorf is at it again in a short book he co-wrote in the early ‘90s with Laurence Tribe, On Reading the Constitution.  They argue in chapters 2 and 3 that the Ninth Amendment is the only interpretive rule in the Constitution, that it forecloses the argument that a right may not be claimed or applied through the Constitution because it isn’t in the text.  Therefore it may serve as a general repository for other “fundamental rights” which the text does not specifically mention.

            Not to mention the many other areas for creation of fundamental rights which Dorf allows.  The Due Process Clause and the Privileges and Immunities Clause, of course, come readily to mind.  It should be clear by now that Dorf (and Tribe?) read ample space for judicial creativity into the Constitution.  What they neglect to include is a method, some principled way to cabin that creativity.

            Dorf here commits the same slipshod reasoning, failing to explain why judges are or should be empowered to fashion new, supposedly fundamental rights from the Constitution’s text.  Especially strange is that this prescription comes immediately after multiple admonitions that no one may legitimately interpret the Constitution by imposing into it his or her own views.  After analyzing some hypotheticals in which Dorf and Tribe argue that a law which intrudes into family life by regulating mealtime behavior would violate a fundamental right to autonomous family conduct, they proceed not to argue for the notion that judges should have power to nullify those laws on theoretical grounds, but only refer to Supreme Court precedent, substantive due process cases from the 1920’s.

            In a book on how to read the Constitution, I did not expect to find the implicit argument: precedent is always legitimate.  I expected these two Ivy League professors to explain to me why a 9^th-Amendment based fundamental-rights reading of the document would be permissible for judges to do and enforce, to explain why dreaming up fundamental rights that we’d like to have in the constitution in a perfect world.

            Family autonomy may well be a fundamental right; it may well be a cornerstone of someone’s natural-law theory of justice and governmental power.  I would be happy to accept such a theory.  But Dorf and Tribe, surprisingly, make no effort to explain why it’s a constitutional right.

            We commit a grave error, in my estimation, when we equate a fundamental right with a constitutional right.

            We commit an even graver error when we hand the power and the duty to discover and enforce those rights to an unelected judiciary whose views need not reflect the people’s own.

Individual Mandate as National Defense?

Akhil Reed Amar is a Yale law professor who has published extensively on the Constitution.  I am a great admirer of his work.

I have read his extensive America’s Constitution: A Biography, the popular For the People: What the Constitution Really Says about Your Rights, and a law review article he wrote entitled “The Bill of Rights as a Constitution.”  I admire his fluid prose, his passion for the subject, and of course his broad knowledge.

But then I watched a Youtube video, a debate with other legal experts on the constitutionality of the Affordable Care Act’s “individual mandate” (or tax or whatever).

Honestly, I was pretty close to shocked.

Here is Akhil Amar, one of the most decorated and prominent living scholars of our Constitution, saying that the individual mandate can be justified on six different grounds: three arguments on the commerce clause, and two on the taxation power.

But his most striking claim was the sixth, national defense.

Yes, Akhil Amar claimed that the individual mandate could be constitutional if grounded in Congress’ power to ensure the national defense.  A law that has nothing at all to do with foreign policy or military preparedness, nothing to do with the land or naval forces (nor the air forces for that matter), nothing to do with diplomacy or foreign nations, could rest on Congress’ duty and power “to provide for the common defense…of the United States.” (Art. 1 Sec 8 Cl. 1)

How does he manage to make this puzzling move?

He rests his argument on reference to expert testimony that the next terrorist attack in the United States is likely to be biological.  Therefore, as a measure to promote the general health of the population, and thus to mitigate the next likely terrorist attack, the government might coerce/encourage us to purchase health insurance to improve the overall state of national health.

The reasoning here is weak, to say the least.  First, Amar needs to be able to establish a causal link between having insurance and superior health, using statistical evidence to show definitively that people with health insurance are healthier than those without, and that this better health is caused directly by the insurance.  Then, he must show that whatever surely modest increases in health would accrue to the people as a whole would significantly deter or delay a biological attack.  If the former is difficult, the latter is nearly impossible.  Lastly, I propose that he should also have to show that such a measure is necessary to achieve national security; I am willing to grant the expansive definition of the term put forth in McCullough v. Maryland (to mean more “convenient” or “useful” than strictly essential), but I still propose that this argument fails. There still must be considerable evidence that such a biological attack is foreseeable and expected reasonably soon, and that the individual mandate, even if it would considerably enhance herd immunity, would mitigate the attack in such a way as Congress could not otherwise perform.

I propose this strict-scrutiny type of test (compelling interest achieved through a narrowly tailored statute) because of the domestic nature of the foreign-relations clause's execution (which should, I propose, automatically trigger suspicion), and the lack of any principled limits on future exercises.  If Congress may enact this law as necessary and proper to ensure the national defense in the McCullough sense of "necessary", some bound on that power in the future is required. Below, I elaborate on the dangers of this lack of principled limit.

Congress has extensive powers under the Common Defense Clause and other military matters.  Article I Section 8 Clauses 10 and 11 give Congress power to “define and punish piracies and felonies committed on the high seas, and offenses against the law of nations,” (Cl. 10) and to “declare war…and make rules concerning captures on land and water.”  This is of course to say nothing about Clauses 12-16 of this same section, which empower Congress to create a standing army, and navy, to regulate said forces, to call on the state militias when needed, and to organize, arm, and discipline the militia when called forth.  Suffice it to say, Congress' power over national defense is extensive, and nearly exclusive to the states and local governments, only shared with the President.

This law, clearly, does not and cannot fall within the ambit of common defense as the Constitution sets it out.

This claim requires piling “inference upon inference”, each stretching farther than the last, to connect the policy with that particular power.  Congress is of course empowered to enact “all laws which shall be necessary and proper for carrying into execution the foregoing powers,” but for the national defense, such a policy is neither.  It is not necessary as there are clearly many other, more effective measures which Congress and the executive should take: counterterrorism plans, intelligence gathering, alliance-forming, etc. to contain terrorist cells.  And it is not proper because, as stated above, the mandate is likely mostly ineffective toward that end.

As I know that the Court tends to give Congress and the executive a wide berth in matters of military regulation, I am sure that there is little case law on the extent of the Common Defense Clause’s grant of power.  And to the extent that there is such a body of precedent, I am certain that it could not extend to grants of power on domestic policies intended to improve the health of the citizens to parry an attack nowhere visible on the horizon.

So where would this power end?  What would be impermissible for Congress to encourage/coerce citizens to do?  If Congress can compel (Justice Roberts argued that the mandate, as a tax, is less coercive than criminal prosecution; to an extent, I can buy that, but people who pay taxes generally do what they can to avoid them.  The end result would be little different) purchasing insurance through a mandate/tax, what could it not do?  May Congress increase taxes on those whose medical records show a given level of cholesterol?  Or those with a BMI over a certain level?  May Congress compel immunizations by similar means?  Or yearly physicals?  May it do all these things simply because some supposed experts testify that a biological terrorist attack may possibly loom somewhere on the horizon?  Would it make any constitutional difference whether such an attack were anticipated within one year, ten years, or fifty years?  How much would the level of evidence amassed by those experts matter?  Amar offers no answers.  I can see no principle preventing Congress’ power from extending to these areas should the individual mandate pass muster under the Common Defense Clause.

In the end, I was startled to hear Amar make this claim.  Even a novice like me easily deconstructs this argument.  It is beneath the intelligence and expertise of a man whose scholarship has inspired and fueled my interest in constitutional law, history and politics.

Here is the link to the video in question.  The offending segment from Amar begins at about 40:20.

http://www.youtube.com/watch?v=JDwWvGXsPa8