Brendan T. Beery
Brendan T. Beery is a professor of law at Western Michigan University Thomas M. Cooley Law School. The author wishes to thank WMU-Cooley Professor Emeritus Daniel R. Ray for his patient and thorough listening and advice.
A new era
Justice Anthony Kennedy has left the Supreme Court, gifting his swing-vote seat to President Donald Trump, who in turn appointed Judge Brett Kavanaugh, ensuring a five-vote right-wing majority on the Court that will last for as long as the young and healthy conservatives on the Court can stay healthy and conservative. (One assumes that Justice Clarence Thomas will also leave his seat to a socially conservative courter of Trump’s affections safely this side of the 2020 election.) It’s game, set, match.
So a new day is upon us; the new Court, populated by social conservatives hostile to notions of freewheeling individual autonomy in matters relating to family, marriage, or reproductive and sexual practices,1 will likely grind away at the doctrine that so far has largely protected individual liberty—the doctrine of “substantive due process”2—until there is nothing left but some Judeo-Christian ligaments on an otherwise dried-up bone. Substantive due process, which is of course a contradiction in terms (process, which is procedural, is not substantive3), is among the banes of the conservative existence, with its insistence that the word “liberty” in the Constitution is part of two promises, not one: first, that one’s person or property won’t be mugged or plundered by the government without some kind of notice and the chance to plead one’s case before an impartial arbiter;4 and second (and this is the part that bothers conservatives), that there are certain personal freedoms so fundamental to life in a free country that the government may not (substantively) meddle with those freedoms at all.5 A person under the jurisdiction of a government bent on cutting one’s fallopian tubes, for example, would likely not plead for some procedural nicety like a jury trial as to whether she may be sterilized by the state, but rather for a ruling that the state may not sterilize a human being at all in any society that holds itself out to be free and decent.6
The doctrine of substantive due process breathes life into the Ninth Amendment’s promise that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”7 Since both of the Constitution’s due-process provisions use the word liberty,8 courts have regarded those clauses as the textual homes for the unenumerated (retained) rights whose existence was memorialized in the Ninth Amendment. For a jurist who takes a dogmatic view of how other people should live their lives,9 and sees a robust role for the state in imposing that view,10 little could be more dangerous than this kind of pandora’s box: a constitutional principle with no rigid boundaries, ensuring the freedom and jurisdiction of the individual over a broad swath of citizen life.
Conservatives like the late Justice Antonin Scalia have long derided this doctrine, even putting it in proverbial air quotes, as when Justice Scalia wrote, “Our opinions applying the doctrine known as ‘substantive due process’ hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest.”11 With a durable majority on the Supreme Court installed, the new Court (now in accord with Justice Scalia’s worldview—and his hostility toward the whole business of unenumerated rights) will have no patience for a doctrine it never credited with any sway to begin with.12 Facing this new reality, progressive lawyers must change the way they approach the government-citizen relationship in legal argumentation. The substantive-rights component of the Fifth and Fourteenth Amendments is likely to shrivel up and atrophy, leaving states largely free to steamroll the moral choices of unpopular minorities (or women) unless some new analytical framework emerges that might protect those groups and their choices—a framework more appealing, of course, to the conservative mind.
Progressive issue-framing malpractice
We arrive at a time of great anxiety for progressive legal thinkers (and I should like to count myself among them), but also a time of intriguing possibilities, and potentially a chance to correct a strategic mistake made many decades ago. Progressive jurists have, for now, lost a long ideological war. They lost, in part, by winning the early battles the way they did (think Griswold v. Connecticut13 and its progeny). They won those early battles with a species of argument that was always shrill and grating to the conservative ear: arguments about the autonomy and privacy and dignity of the individual human citizen that should result also, according to progressive judges, in the jurisdiction of every competent individual over his or her own personal choices. In a society where dogmatists along the whole spectrum of religiosity—from “humanitarians” like Mother Theresa to conservative evangelicals like Jerry Falwell—have little use for individualism, this focus on the rights of the individual rather than the proper jurisdiction of government has been, well, injudicious.
This would only be so, of course, if progressive jurists should have wanted to appeal to believers, be those would-be Samaritans who see any individual as a prop in a paradigm where every poor sufferer presents the means to salvation for every caretaker,14 or evangelicals who see every individual as merely a mark for proselytizing and conversion—and ultimately submission to the will of a God who will reward the evangelizer as handsomely as the pliant proselyte. And there has been a tendency on the left to talk past this lot just as surely as there’s been a tendency on the right to demonize every non-adherent as an elitist, effete, granola-noshing, less-than-“real” American. That’s been a mistake on both sides, but especially on the left (at least for purposes of our discussion here), where thought leaders grossly overvalued both the rhetorical force of their arguments and the size of their receptive audience.
Judicially speaking, in the battle of the pagans against the Good-Bookers, the question was always which side would draw the other onto its own battlefield with a deadly legal weapon called framing the issue. I doubt that liberal justices on the Supreme Court even noticed when conservatives pulled them far across a philosophical fault line; those liberals beat their way miles into enemy territory only to turn back on June 28, 2018 (the day after Kennedy’s retirement announcement15) and find themselves cut off from reinforcements after a political earthquake, and on the wrong side of the fissure—the side populated by the former underdogs.
While beating a slow retreat, conservatives had progressives where they wanted them: arguing about contraceptives16 and abortions17 and sodomy18 and “the homosexual agenda.”19 As noble and laudable as the intentions of left-leaning justices might have been (at least as to these hot-button social issues), their reliance on the liberty clauses of the Fifth and Fourteenth Amendments, and the resulting decades of focus on the body parts and bodily functions that make a prudish population cringe, was a grave blunder.
To have any stab at progress in the coming new era, a generation of conservative jurisprudence likely to narrow and dissolve the scope of unenumerated “individual rights” under the Constitution, progressives will have to find a new way of arguing or see their gains collapse under the weight of orthodox Judeo-Christion illiberalism.
It’s not about the individual
When one studies the structure and language of the Constitution, it becomes clear that rights, like those enumerated in the first eight amendments to the U.S. Constitution, are not about the individual people whom they protect. The Constitution is not addressed to us as individuals and seems agnostic as to whether we exercise any of those rights—like speech or religious exercise.20 The audience for the Constitution is the government; the Constitution creates our system of government, empowers it, and also limits its reach and jurisdiction. That is where rights come in: a right is not a license created by the Constitution that should be slopped up by the masses at a common trough; it’s a limit on the power of the government.21 The First Amendment does not say that you should speak; it says (although not in so many words) that if you have something to say on a matter of public concern (a right you had even before the Constitution was drafted, by the way), then the government may not stop you.22 Constitutional rights aren’t there to be exercised; they are there to restrain governmental intrusions into their exercise (or, in the case of positive rights like the right to a jury trial23 or the right to counsel,24 to require the government to interact with its subjects in ways that are not arbitrary and capricious).
On social issues involving the human body and its various uses, the Court derailed itself early on by conceptualizing rights as being about the individual rather than the government. Instead of asking whether the government has jurisdiction over the choice of a citizen to use a condom or contraceptive sponge, for example, liberal justices asked whether there exists in the Constitution a fundamental right inhering in the individual to access and use contraception.25 In taking this tack as to this and many other personal-privacy issues, the Court strayed into a minefield of bogeymen conjured in the fever dreams of the conservative amygdala: abortionists who relish the slaughter of unborn babes; newly empowered minorities flipping the social order upside-down; and marauding homosexuals coming for our children—and the grandchildren we’ll never have if they succeed.
It was utterly unnecessary for the Court to have ignited these various conflagrations, if only it had stuck to the real issue: regardless whether abortion or sodomy or any same-sex arrangement is some kind of individual right, the constitutional question is whether the government is empowered (or even competent) to regulate in these areas. That is a wholly different question—and one that might douse the flames of religious anxiety at the same time it might yield results decidedly more favorable to progressives.
Consider this question: Do I have a constitutional right to shave in the morning? Under any interpretive model, it’s preposterous. The question answers itself, and the answer is no (if we’re going to stay out of left field, anyway). Since the answer to that question is no, it must be that the state may regulate as to my morning shave, which, after all, isn’t a protected right. Right?
Well let’s see what happens when we flip the question: Were governments instituted among men and women to decide whether a person should shave in the morning? Is that something that any government is competent to regulate? Is that something that any government has the authority to regulate? Is that something that requires collective decision-making for the public good?26 Under any interpretive model, this too is preposterous, and again, the question answers itself: the answer is no. Since the answer to that question is no, it must be that the state may not regulate as to my morning shave; after all, the state has no such authority. Right? Right.
Progressives often play the game conservatives want them to play: in my hypothetical shaving case, instead of asking whether the government has the authority to regulate shaving, a left-leaning Court would ask whether shaving is a fundamental constitutional right. By asking the question at all (after being goaded into it by conservatives, of course27), the Court would diminish itself; by answering yes, it would make itself the butt of a joke—a joke that right-wingers might tell to the political center as well as their own base, to much laughter and ridicule in either case.
A new focus
Conservatives, and especially religious conservatives under the sway of the Book of Leviticus, are overtly and dogmatically opposed to reproductive choice or non-reproductive sexual conduct of any kind, and particularly abortion and homosexuality.28 They have rigid beliefs about the structure of the family, male and female roles, and the centrality in one’s personal life of a relationship with a supervising and interceding God.29 There is no way that an audience like that would be receptive, never mind persuaded, by arguments about the human body, sexuality, sexual orientation or identity, or autonomous decisions around family arrangements and lifestyles that center on anything other than a personal relationship with God.
But conservatives tend also to be suspicious of government,30 and that is a suspicion that progressives have failed to exploit with their incessant focus on the jurisdiction of the individual rather than the state. Many conservatives are also originalists, meaning that they tend to defer to whatever philosophical and social norms were prevailing at the time whatever provision of the Constitution we’re applying was drafted (and more specifically what an average and informed reader would have thought the words of the Constitution meant when those words were drafted31).
On both counts (their concern about the proper place of government in an ostensibly free society and their stated devotion to originalism), an appeal to John Locke might be in order. John Locke was a leading political thinker of his time, and there is no doubt as a historical matter that his philosophy undergirds some (but not all) of the words in our basic charter.32 So there can also be no doubt, to any good originalist, that some words of the Constitution were understood by any lettered reader at the time of the Constitution’s inception to mean what John Locke meant by them.33 This is especially so of the word retained in the Ninth Amendment and the word reserved in the Tenth.34
John Locke on the limited jurisdiction of the state
Hot-button social issues usually involve state legislative power;35 it is generally state legislatures that have trespassed into the personal lives of citizens, enjoining the reign of the autonomous soul over its own self.36 State legislatures, when left unbounded by any supervising check, make of themselves a ubiquitous morals police—a veritable Ministry of State Scruples. In the United States, of course, this invariably involves the application of hidebound Judeo-Christian dogmas against both the willing and the unwilling. Jurisdiction over matters such as sex, marriage, family, contraception, and the choice whether to abort a pregnancy drifts from the individual to the master state. So Locke’s writing on the nature of a free society is most helpful where it relates to legislative power: in his Second Treatise on Government, Locke said,
The great end of men’s entering into society being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society, the first and fundamental positive law of all commonwealths is the establishing of the legislative power . . . [for] the preservation of the society and (as far as will consist with the public good) of every person in it.37
One sees here Locke’s emphasis on peace and safety. This emphasis runs through all of Locke’s thinking and teachings: the individual, in a state of nature, is autonomous and sovereign over himself or herself, and does not form a government over himself or herself except to secure peace and prosperity—not to cede dominion over matters that require no collective decision-making or projects that don’t need some communal lift or surge. In other words, governments exist, as Locke said, for the public good—not the individual’s subjugation (or, as theocrats would no doubt have it, “salvation”).
Locke also wrote,
Though the legislative, whether placed in one or more, whether it be always in being or only by intervals, though it be the supreme power in every commonwealth, yet, first, it is not, nor can possibly be, absolutely arbitrary over the lives and fortunes of the people. For it being but the joint power of every member of the society given up to that person or assembly which is legislator, it can be no more than those persons had in a state of Nature before they entered into society, and gave it up to the community. For nobody can transfer to another more power than he has in himself, and nobody has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having, in the state of Nature, no arbitrary power over the life, liberty, or possession of another, but only so much as the law of Nature gave him for the preservation of himself and the rest of mankind, this is all he doth, or can give up to the commonwealth, and by it to the legislative power, so that the legislative can have no more than this. Their power in the utmost bounds of it is limited to the public good of the society.38
Right. The state may not possess power that must necessarily have been ceded to it by its subjects, the people, if that power did not belong to any person to begin with. In a state of nature, I might have the right to defend myself, secure my property, and enjoy my life peacefully and without nuisance or bother put upon me by others, but I have no jurisdiction of your property or your peaceful enjoyment of your own life and your own personal affairs. So although I may cede to the government the authority to defend me from others, secure my property rights, and protect me from unwanted intrusions, I cannot have ceded to the government—and neither can you have ceded to it—any authority or jurisdiction over the peaceful and private lives of fellow citizens.
As I mentioned above, there is no need for collective governance, for example, as to whether I shave in the morning. Since no person in a state of nature had any power over my decision in that regard, no person can have given that power to the government. As Professor Michael W. McConnell noted in his article about John Locke and his influence on our Constitution, “During the Bill of Rights debates, reference was made to the right to wear a hat and to go to bed when one pleases.”39 The framers of the Bill of Rights understood that a sphere of life exists about which there is no public concern implicated—with regard to which no government, no legislature, has any business. In other words, they understood John Locke.
We enter into the social compact—that is to say, submit to the authority of government—not so that it may limit our freedom, but so that it might help us to preserve it. Locke explained,
If man in the state of Nature be so free as has been said, if he be absolute lord of his own person and possessions, equal to the greatest and subject to nobody, why will he part with his freedom, this empire, and subject himself to the dominion and control of any other power? To which it is obvious to answer, that though in the state of Nature he hath such a right, yet the enjoyment of it is very uncertain and constantly exposed to the invasion of others; for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very insecure. This makes him willing to quit this condition which, however free, is full of fears and continual dangers; and it is not without reason that he seeks out and is willing to join in society with others who are already united, or have a mind to unite for the mutual preservation of their lives, liberties and estates, which I call by the general name—property.40
So we do not, merely by existing in society and availing ourselves of its protections, thereby expose ourselves to the arbitrary whims of the majority—and certainly not those arbitrary whims born of dubious mythologies and superstitions. Rather, we join together under one government, Locke said, “only with an intention in every one the better to preserve himself, his liberty and property (for no rational creature can be supposed to change his condition with an intention to be worse) . . ..”41 That is why “the power of the society or legislative constituted by them can never be supposed to extend farther than the common good . . ..”42
To repeat, then: the state, through its legislative power, may generally only regulate as to the public good, which would seem only to include those matters that either require common decision-making or require a collective undertaking. As to collective decision-making, no person should, for example, be a judge in his or her own case43 against another in matters involving contracts or property or civil wrongs; we must have common rules for resolving such disputes, and we must appoint neutral magistrates to resolve them, not in the name of the magistrates, but in the name of us all. As to projects that require a collective undertaking, we should not, for example, be expected to individually pave the parts of the roadway abutting our own properties or individually fight off an invading army. We join together to do things like build infrastructure and fight against common enemies.
If governments had the authority to do more than this—more than to require our submission to rules that exist to preserve property and peace and liberty; and require our participation in common projects like public highways and the provision of public services and benefits—then we would have quitted our dominion over our own affairs with, as Locke put it, “an intention to [make our own condition] worse.” What rational creature would enter into such a compact?
This thinking marked much of the dialogue in the United States around the adoption of the Constitution, and especially the Bill of Rights. A famous Constitution-era commentator who wrote as “Brutus” put it this way:
The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order, that what remained should be preserved: how great a proportion of natural freedom is necessary to be yielded by individuals, when they submit to government, I shall not now enquire. So much, however, must be given up, as will be sufficient to enable those, to whom the administration of the government is committed, to establish laws for the promoting [sic] the happiness of the community, and to carry those laws into effect. But it is not necessary, for this purpose, that individuals should relinquish all their natural rights. Some are of such a nature that they cannot be surrendered. Of this kind are the rights of conscience, the right of enjoying and defending life, etc. Others are not necessary to be resigned, in order to attain the end for which government is instituted, these therefore ought not to be given up. To surrender them, would counteract the very end of government, to wit, the common good. From these observations it appears, that in forming a government on its true principles, the foundation should be laid in the manner I before stated, by expressly reserving to the people such of their essential natural rights, as are not necessary to be parted with.44
A Thought Experiment
Let’s apply this Lockean principle with an illustration. Suppose that Smith is one day talking to his neighbor Jones over the hedge line. In the course of the conversation, which comes to include some Donald-Trump-and-Billy-Bush style “locker-room talk,”45 Smith, who regales Jones with titillating descriptions of the rhythm method for contraceptive-free birth control, discovers that Jones and Jones’s wife sometime engage in what we’ll just call non-procreative sexual practices. Suppose also that Smith adheres to the sexual mores bequeathed to civilization from the least literate part of the planet in a jumbled collection of erratic writs some 2,000 years ago.46
Who would disagree that Smith’s superstitions and hang-ups are his business and his alone? And who would disagree that the same goes for Jones—that his sexual predilections are his business and his alone? One assumes—and hopes—that if one were to ask even a social conservative, How much power do you have, as a neighbor, over the sexual practices of Jones?, the answer would come easily: none. I might think Jones a sinner or a wretch, but surely neither I nor Smith nor any other single citizen has jurisdiction over Jones’s sexual practices, at least insofar as they involve a consensual adult arrangement.
Now suppose that Smith talks to another neighbor, Murphy, and finds that Murphy too is put off by the story of Jones and Jones’s wife and their happy frolicking. Now that Smith has been joined by Murphy in his objections, do the two of them together have jurisdiction to control the Joneses’ sex life? Of course not. If neither Smith nor Murphy himself has power over the Joneses’ sex life, then what is their power when the two are joined?
What about when a third neighbor also is put off? And a fourth and fifth, and then a tenth and then a twentieth? If the whole block finds Jones’s sexual practices with his wife distasteful, have the morals police swelled in number such that now they have jurisdiction over Jones’s sex life? Of course not. If no single one of Jones’s neighbors individually has any power over Jones’s personal life, then their joint opprobrium is of no more moment than Smith’s alone, or any combination of neighbors one might conjure. Those who argue that the neighbors magically acquire jurisdiction over Jones’s private sex life once they number 50 percent plus one of the body politic are left holding an empty sack, and this is Locke’s point: the government only has that power which the people (a collection of persons) may give it, and they may not give what they do not have. It makes no difference that 50 percent plus one of the body politic condemns poor Jones; there is no power in their legislature to bind him up if no person within the body politic had that power to give the legislature to begin with. It’s a funny thing about zero: no matter how many times you add it to itself, you still get zero. So in a community of 100, even when 51 people decide on the sexual practices they’d prefer for Jones and his wife, they still have no jurisdiction—zero—to impose their will.
It is a strange proposition indeed that something that is not the business of anyone is nonetheless the business of everyone.
Jones’s sex life is not a public project and does not call out for collective decision-making. It is not a matter of public concern, and it has nothing to do with the public good. No government, therefore, has authority over it, at least in any commonwealth that holds out any pretense of being a society of free citizens.
The Ninth and the Tenth Amendments
So the people who drafted the Bill of Rights were well versed in Lockean political theory, and they used Locke’s language in debating whether a Bill of Rights should be drafted—and then in drafting it.47
Some of the framers feared that drafting a “Bill of Rights” and appending it to the Constitution in the form of a list bore serious risks. There is a Latin axiom that governs the construction of lists in legal documents: expressio unius est exclusio alterius.48 That means, in plain language, that if it’s not on the list, it’s not on the list. This concept was familiar to Alexander Hamilton, who thought a list unnecessary and unwise for this very reason,49 and James Madison, who warned that we would wade into perilous territory with such a list,50 as the oppressors of the future would point to it as exhaustive while extinguishing any right not listed.
With this in mind, the drafters of the Bill of Rights (the first Congress51) included the Ninth Amendment, ostensibly to foreclose this mischief: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”52 Notice the word retained. This has John Locke written all over it: the government only has the power ceded to it by the people; all the remainder—a huge chunk of jurisdiction over the lives and affairs of the people—must be presumed to have been retained, for there would have been no reason for any rational person to give up more than might be necessary for the public good. The Ninth Amendment explicitly neuters the expresssio unius rule and instructs that it not be applied in interpreting the Bill of Rights. There is a sphere of life where no government may tread, and a right need not be enumerated in the Constitution for the government to lack any jurisdiction over it. Indeed, it would be a fool’s errand to list every component of a citizen’s daily life where the government has no jurisdiction; we needn’t indulge lofty musings about which “rights” are “deeply rooted in our history and traditions”53 or “implicit in the concept of ordered liberty”54 when it’s clear enough that no government at any level may decide what side of the bed one sleeps on or whether one snuggles with a cat at night or whether one takes one’s coffee black.
As to the U.S. Congress, those matters over which it has authority are, like the rights in the first eight amendments, enumerated. Congress’s powers are listed in Article I, Section 8 of the Constitution. But as to Congress’s enumerated powers, the expressio unius rule does apply,55 because there is nothing like the Ninth Amendment that follows the list of congressional powers to say that expressio unius does not apply. So Congress’s jurisdiction is limited in multiple ways: by the existence of enumerated powers away from which is mustn’t stray; by the enumeration of rights in the first eight amendments; and by the Ninth Amendment, which tells Congress to stay away from whatever parts of citizen life have no bearing on the public good, and which are therefore none of Congress’s business.
The news is no better for meddling states under the thumb of busy-body legislators bent on wielding state power not for the public good but to conform citizens’ private choices to those moral and sexual and lifestyle and family-structure strictures favored by the majority. First of all, courts have held that the Bill of Rights, even though it seems on its face only to apply to the federal government (“Congress shall make no law . . .”56) applies to states, too (through the Fourteenth Amendment, which explicitly targets states and requires that they behave toward citizens in a way that is fundamentally fair—which, say courts, includes adhering to the Bill of Rights, with a few unremarkable exceptions57). So the Ninth Amendment is as relevant in determining the scope of state power as it is in determining the scope of federal power.
Then there is the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”58 Right-leaning commentators have a habit of seeing that third comma as a period and omitting the or part that follows that comma—because that comma and the or part that follows are not helpful to people who think that all the power not delegated to Congress, including the power over people’s personal lives and affairs, was reserved to the states.59
First of all, reserved is much like the word retained: it has Locke written all over it. But power is not merely reserved to states. As would be expected in an amendment that has Locke running through it, power is also—and more importantly—reserved to the people. So states occupy a sort of nether-region where Congress has no power and the people have ceded theirs—for, and only for, the public good. Courts call this the police power, which properly has been defined as a general authority to regulate with regard to the health, safety, and general welfare of the populace—in other words, the public good.60 Puritans and right-wing mischief-makers, however, have often snuck the word morals into that equation: police power, they say, is the authority of the state over the health, safety, morals, and general welfare of its people.61 The problem here, of course, is that if a state has jurisdiction over a person’s moral choices, then the or part of t he Tenth A mendment—the part about power reserved to the people—is a dead letter, because there is nothing left to the individual citizen after the state has greedily consumed every bit of the residual jurisdiction not claimed by Congress.
If the Tenth Amendment is to mean what it clearly says about the people and their reserved power, then, again, state legislative power may only extend to the common good. And the drafters of the Constitution seemed singularly concerned that this form of government would indeed exist in the states; Article IV of the Constitution says, “The United States shall guarantee to every State in this Union a Republican Form of Government. . . .”62 Republican, in this context, means representative,63 which in turn means that every state must have a structure of government that reflects the Lockean compact: the people will cede whatever power they must to the state, which will then regulate for the public good.
The text of the Constitution, then, as it would originally have been understood and as it should still be understood today, does not invite or require nonsensical fights about which parts of citizen life implicate such ethereal and profound concerns that they warrant some kind of special rank. As to personal privacy and moral autonomy, the Constitution is concerned only with whether power is reserved to the people, which is to say that it is not the business of any other person, and is therefore necessarily not the business of any government.
And a new frame (a new test)
Courts today play on conservatives’ home court, employing an analysis that avoids Lockean theory and all the freedom and autonomy that might break out in our land were Lockean theory properly applied. Instead, courts quarrel over whether certain rights involving the most private (and one might say embarrassing) parts of citizen life constitute “fundamental rights,” meaning that they are rights protected as liberty interests under the due-process clauses even if they are not enumerated.64 With regard to such rights, “strict scrutiny” applies to any governmental meddling.65 But as to any rights that are not “fundamental,” mere rational-basis review applies: laws torching those rights survive if they bear any rational relationship to any conceivably legitimate interest.66
Oddly enough, conservative justices, even those like Justice Scalia, who routinely maligned the whole idea of unenumerated liberty interests, nonetheless find little trouble declaring the traditional unitary family or traditional opposite-sex marriage to be just such interests.67 They balk, of course, only when whatever private matter is at issue does not comport with their own dogmas and personal (often religious) agendas: when a woman wants to abort a pregnancy, a gay person wants to enjoy a full and pleasurable sex life, or unmarried adults want to use contraceptives. The whole frame is bogus, and Justice Kennedy, of all people, came closest to ending this charade by declaring (implicitly, at least) that a majoritarian moral objection to certain conduct is not, in and of itself, a legitimate state interest as required even on rational-basis review.68 Justice Kennedy’s opinion in Lawrence v Texas invalidating a Texas anti-homosexual-sodomy law might be the closest the Court has come to honoring the plain meaning of the Constitution’s reservation of jurisdiction over citizen-life to the people rather than the state.
It’s a pity the Court wasn’t explicit about that, but in any event, Justice Kennedy, of course, is no longer calling the shots. So advocates in future cases will have to propose a new test in liberty (“individual rights”) cases that has nothing to do with individual rights, because we are dealing now with a Supreme Court that sees the individual as a fallen sinner in need of moral correction. The only hope, then, is to change the frame: to focus the Court on the original meaning of our founding charter and appeal to justices’ stated fealty to the ideas of limited government and the free enjoyment of property and citizen life. Progressive advocates should characterize this approach as conservative—a decidedly narrow take on what parts of citizen life are properly regarded as having been ceded by the people to any supervising secular overlord. It might be too much to expect intellectual consistency from a socially conservative bench, but it’s a safer bet than arguing to this Court about the merits of anal sodomy or fellatio or reproductive choice.
Indeed, after so many years of the fallacious judicial focus on the individual rather than the government, it will be hard to get anyone focused properly on the government rather than the individual. The reader will have noticed my heavy reliance on Professor McConnell’s article about John Locke and the Ninth Amendment throughout this article. But even Professor McConnell, as you will see if you read his very astute article, after he properly elucidated the meaning of the Ninth and Tenth Amendments in light of Lockean theory, then proceeded to get it all wrong with his focus on discrete and narrowly described rights. As he himself explained, rights are just one side of a coin— the other side being governmental power.69 But when he flipped that coin to decide where to focus, it landed rights-side-up, and he went down the rabbit hole chasing that elusive distinction between low-ranking rights and rights that might properly be regarded as fundamental and constitutional in rank.70 There was no need for that tortured exercise; Locke’s focus was on the government, so the focus should be the power of government—the government’s jurisdiction, not the individual’s.
Here is the test as it should be: When a government regulates in an area that is claimed to be a component of citizen life rather than a matter of public concern, a court should ask (1) whether the matter at issue requires collective decision-making, and (2) whether it involves a public project that requires, in all fairness, that anyone who benefits from it should also shoulder some of its cost or inconvenience. If the answer to either question is yes, then any rational law should stand. If the answer to both questions is no, then rigid scrutiny should be applied to smoke out any improper legislative purpose— especially any purpose to choke out the free will of the individual in a smog of majoritarian dogmatism. In analyzing such cases, courts should consider whether the law or policy at issue involves the exercise of arbitrary control over people’s lives where no one person would have had any natural right to meddle by himself.
Do I have a constitutional right to wear a hat or decide when to go to bed at night? Of course not. Were those choices nonetheless reserved by the people as outside the reach and competence of the government? Of course. The question is not whether such decisions are important or compelling or foundational, but whether they constitute a public project or require collective decision-making. At the risk of being repetitive (which might be in order), since the Constitution explicitly addresses itself to governments rather than the individual, it is the scope of the government’s jurisdiction that is the issue, not the scope of the individual’s jurisdiction. The individual should not be asked to explain how it is so that he has jurisdiction over shaving or hat-wearing or bedtime when the government so obviously lacks jurisdiction in those areas. If the government is incompetent to regulate in these areas, areas about which no person could or would have ceded authority to society, then what difference does it make whether the “right” at issue is the right to free thought or the right to go to bed? In either case, it’s a “right” against which the state may not trespass—regarding which a person has the “right to be let alone.”71
So this really comes down to an interesting point: when an American says, “It’s none of your business,” he is making a constitutional statement, because if some matter in his life is not any other person’s business, then it can’t be the government’s, either. With regard to any matter where a reasonable citizen would say to a neighbor, “Mind your own business,” the state has no jurisdiction to act, because nothing can be everyone’s business when it’s not anyone’s business. It’s a simple test. It would make this country truly the land of the free; it would avoid messy fights about religion and private matters; and it would honor the original understanding of the words used in our founding charter.
There is room here for changing norms, which will probably make conservatives jittery: what constitutes nobody’s business is certainly something that will evolve with time and culture; that doesn’t change the original meaning of the words; it merely honors their original meaning as they apply to modern life.
What remains to be discussed is the role of the judiciary in all this, and particularly the unelected, lifetime-appointed, can’t-have-their-compensation-reduced judges72 of the federal courts. It is not uncommon for judges and scholars to suggest that courts may not interfere in political processes to police the will of the majority, and that the power ceded to the legislature of any state is a matter of what the majority has decided to cede. Professor McConnell himself summarizes this approach, suggesting a limited role for courts in policing the legislature, and even suggesting that Locke himself saw rebellion as the more appropriate answer to legislative overreach.73
Even if Professor McConnell is right about Locke’s view, it flies in the face of the most famous precedent in all of U.S. jurisprudential history: Marbury v Madison.74 It i s t he q uintessence of j udicial p ower t hat c ourts i nterpret the law; it is for courts, therefore, to discern what is meant by words like retained and reserved and to apply them in any case where they are at issue. (I would note here also that although John Locke is the philosopher whose writing is clearly on point in interpreting the meaning of words like retained and reserved, one ought not rely on Locke to explain every component of constitutional structure—particularly with regard to such matters as judicial review and separation of powers, where the founders incorporated ideas about which Locke’s writings had not much to say or did not carry the day.)
The argument that legislatures should be checked largely by their own self-restraint75 also ignores completely the most critical point in Locke’s theory—the theory adopted by and expressed in the United States Constitution itself: no government may have the power that no person may have given to it. It will not do, therefore, to say that if the people have given the state the power over the most personal, intimate, and even secret lives of fellow citizens, then the state has such power over such matters as these, in its own discretion. That can’t be so when no person, nor the people collectively, had such power to give in their natural state, which was built around liberty and the equal dignity of every man and woman.
If judges may not cabin state power, then there is no limit at all on state power, and the Tenth Amendment’s language about power reserved to the people is a nullity, mere surplusage. And we must stop pretending, if a state must be the only check on itself (in a country where it is axiomatic that an individual may not be a judge in his own case76), that we live in a free society. We live, rather, as the mob will have us live, and there is no choice that an individual may make in his or her own life that is not the business of all.
Progressive legal advocates must anticipate the coming right turn on the Supreme Court and tailor arguments to a new jurisprudence, one that will be decidedly unconcerned with the dignity or autonomy or rights of the individual. Cases representing progressive victories like Roe v Wade77 and Obergefell v Hodges78 (the case requiring that states license same-sex marriages) will be overruled or bent and twisted beyond recognition.
One way to preserve past gains is a shift in focus and issue-framing. If we’re not going to concern ourselves with the liberty of the individual, we might still concern ourselves with the proper role of the government, for if that is not a constitutional issue, then there is no such thing as a constitutional issue.
To that end, advocates should argue that heightened scrutiny applies to any governmental program that purports to regulate citizen life rather than the public good. Special attention should be paid to the question whether the conduct or activity regulated is conduct or activity over which any individual person has jurisdiction as applied to the life of a neighbor. If no individual person would have such jurisdiction, then neither may the state have it, for the state has only what the people may give it.
As to any decision that requires collective decision-making or the participation and submission of all for the public good, states may regulate—and courts should defer to state regulation in these areas.
The result would be a government that exists to protect and assist citizens in the enjoyment of their property, liberty, and lives—not a government that exists to oppress and injure those subjects whose lives and choices fall outside the rigid dogmas of the majority.
- See generally Brenda Cossman, Contesting Conservatisms, Family Feuds and the Privatization of Dependency, 13 Am. U. J. Gender Soc. Pol’y & L. 415 (2005) (explaining the socially conservative approaches to marriage, family, gender roles, and economic policy).
- See generally Moore v. City of East Cleveland, 431 U.S. 494 (1977).
- We wouldn’t need such a silly name for a doctrine if the Supreme Court had not abrogated the more natural home of substantive rights as applied against state legislatures: the Fourteenth Amendment’s Privileges and Immunities Clause. See generally The Slaughter-House Cases, 83 U.S. 36 (1873).
- This is usually called “procedural due process.” See generally Matthews v. Eldridge, 424 U.S. 319 (1976).
- See generally Moore, 431 U.S. 494; see also Loving v. Virginia, 388 U.S. 1 (1967) (stating that traditional marriage is a fundamental constitutional right); Eisenstadt v. Baird, 405 U.S. 438 (1972) (holding that adults have a right to use contraceptives); Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990) (recognizing a right to refuse unwanted medical treatment); Troxell v. Granville, 530 U.S. 57 (2000) (recognizing the right of a competent parent to direct the care, custody, and control of his or her child or children).
- See Buck v. Bell, 274 U.S. 200, 207 (1927) (noting “[t]he attack is not upon the procedure, but upon the substantive law. It seems to be contended that in no circumstances could such an order be justified. It certainly is contended that the order cannot be justified upon the existing grounds.”).
- U.S. Const. amend. IX.
- U.S. Const. amend. V; U.S. Const. amend. XIV.
- See Cossman, supra note 1, at 481-86.
- See id.
- Lawrence v. Texas, 539 U.S. 558, 593 (2003) (Scalia, J., dissenting) (emphasis in original).
- See Gregory C. Cook, Footnote 6: Justice Scalia’s Attempt to Impose a Rule of Law on Substantive Due Process, 14 Harv. J.L. & Pub. Pol’y 853 (1991) (noting Justice Scalia’s attempt to limit the doctrine at a time when it seemed impractical to wish for its wholesale abandonment—the author does not address the normative validity of the doctrine but posits that Justice Scalia had found a way to narrow its application.).
As to Judge Kavanaugh’s views on unenumerated rights (and specifically abortion rights), he said the following during a speech to the American Enterprise Institute (discussing the views of Chief Justice William Rehnquist, approvingly):
[Chief Justice] Rehnquist’s dissenting opinion did not suggest that the Constitution protected no rights other than those enumerated in the text of the Bill of Rights. But he stated that under the Court’s precedents, any such unenumerated right had to be rooted in the traditions in conscience of our people. Given the prevalence of abortion regulations both historically and at the time, Rehnquist said he could not reach such a conclusion about abortion. He explained that a law prohibiting an abortion, even where the mother’s life was in jeopardy, would violate the Constitution, but otherwise he stated the states had the power to legislate with regard to this matter.
In later cases, Rehnquist reiterated his view that unenumerated rights could be recognized by the courts only if the asserted right was rooted in the nation’s history and tradition. The 1997 case of Washington vs. Glucksberg involved an asserted right to assisted suicide. For a five-to-four majority this time, Rehnquist wrote the opinion for the Court saying that the rights and liberties protected by the due process clause are those rights that are deeply rooted in the nation’s history and tradition. And he rejected the claim that assisted suicide qualified as such a fundamental right.
Of course, even a first-year law student could tell you that Glucksberg’s approach to unenumerated rights was not consistent with the approach of the abortion cases such as Roe vs. Wade in 1973, as well as the 1992 decision reaffirming Roe, known as Planned Parenthood vs. Casey.
What to make of that? In this context, it’s fair to say that Justice Rehnquist was not successful in convincing a majority of the justices in the context of abortion either on Roe itself or in the later cases such as Casey, in the latter case perhaps because of stare decisis. But he was successful in stemming the general tide of free willing judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition. The Glucksberg case stands to this day as an important precedent, limiting the Court’s role in the realm of social policy and helping to ensure that the Court operates more as a court of law and less as an institution of social policy.
Dylan Matthews, Brett Kavanaugh Likely Gives the Supreme Court the Votes to Overturn Roe. Here’s How They’d Do It., Vox (July 10, 2018, 1:50 PM), https://www.vox.com/ policy-and-politics/2018/7/10/17551644/brett-kavanaugh-roe-wade-abortion-trump.
- 381 U.S. 479 (1964) (holding that contraception for married couple implicated a fundamental unenumerated constitutional right).
- See generally Christopher Hitchens, The Missionary Position: Mother Theresa inTheory and Practice (1995).
- See Ariane de Vogue, Justice Kennedy to Retire from Supreme Court, CNN (June 27, 2018, 5:30 PM), https://www.cnn.com/2018/06/27/politics/anthony-kennedy-retires/ index.html.
- See Griswold, 381 U.S. 479.
- See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992); Whole Woman’s Health v. Hellerstedt, 579 U.S. __ (2016).
- See Bowers v. Hardwick, 478 U.S. 186 (1986); Lawrence v. Texas, 539 U.S. 558 (2003).
- Lawrence, 539 U.S. at 593 (Scalia, J., dissenting).
- See U.S. Const. amend. I.
- See Michael W. McConnell, Natural Rights and the Ninth Amendment: How Does Lockean Legal Theory Assist in Interpretation? (September 10, 2010), 5 N.Y.U. J.L. & Liberty 1, 12 (2010), available at http://www.law.nyu.edu/sites/default/files/ECM_ PRO_065899.pdf.
- See U.S. Const. amend. I.
- See U.S. Const. amend. V.
- See U.S. Const. amend. VI.
- See generally Griswold, 381 U.S. 479; Eisenstadt, 405 U.S. 438.
- I pause here to make this clear straight away: this article is not a libertarian screed and should not be taken as fodder for any libertarian argument involving governmental power. By discussing the public good here and throughout the article, I hope to suggest what should be obvious—that the government surely is competent to regulate in such areas as public education, infrastructure, critical services, access to health care, and public welfare. Libertarians, as I understand them, concern themselves with none of these things, but rather prefer an Ayn-Rand, Darwinian free-for-all that is utterly at odds, in my view, with the public good.
- See Michael H. v. Gerald D., 491 U.S. 110, 127 (1989) (Scalia, J. explaining that “[w]e refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”).
- See Sean Illing, Why Christian Conservatives Supported Trump—and Why They Might Regret it, Vox (Feb. 2, 2018, 7:46 AM), https://www.vox.com/2017/10/4/16346800/ donald-trump-christian-right-conservative-clinton (quoting S tephen M ansfield, t he author of ChoosingDonald Trump).
- See Valerie Tarico, Speaking Evangelese: Tips for Politicians, Huff. Post (Mar. 18, 2010, 5:12 AM), https://www.huffingtonpost.com/valerie-tarico/speaking-evangelese-tips_b_322999.html.
- See Jim Talent, Conservatism and the National Defense, National Review (Nov. 11, 2015 (8:24 PM), https://www.nationalreview.com/corner/fox-business-debate-rand-paul-redefines-conservatism/?target=author&tid=900928 (stating “[c]onservatives believe that human beings—while capable of great things if sufficiently steeped in the values of an enlightened society — are by their nature weak and corruptible. That’s the reason conservatives are suspicious of government; government represents the harnessing of state power to the weaknesses of human nature. For the equal but opposite reason, conservatives also believe that government is necessary as a restraint on the worst tendencies of human beings. Government must therefore exercise a police power, properly checked and balanced to prevent abuse.”).
- See AntoninScalia, Common-Law Courts in Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in AMatter of Interpretation: Federal Courts and the Law 3, 37-38 (Amy Gutmann ed., 1997) (explaining originalists should look for “the original meaning of the text, not what original draftsmen intended”).
- See generally McConnell, supra note 21.
- See id.
- See id. at 11-12.
- See, e.g., State-by-State History of Banning and Legalizing Gay Marriage, 1994-2015, ProCon.org, https://gaymarriage.procon.org/view.resource.php?resourceID=004857 (last updated Feb. 16, 2016); An Overview of Abortion Laws, Guttmacher Institute, https://www.guttmacher.org/state-policy/explore/overview-abortion-laws (last visited July 8, 2018).
- Congress occasionally does too, as when it enacted a ban on the abortion procedure known as dilation and extraction, one assumes, as a regulation of interstate commerce. Since the Supreme Court did not address the constitutional basis for such a congressional act when the case was litigated, we don’t know what basis exists. See Gonzales v. Carhart, 550 U.S. 124 (2007).
- JohnLocke, Second Treatise onGovernment § 134 (1690).
- Id. at § 135.
- McConnell, supra note 21, at 19 (citing 1 Annals of Congress 732 (Joseph Gales ed., 1834) (1789)).
- Locke, supra note 37, at § 123.
- Id. at § 131 (emphases added).
- Id. (emphasis added).
- This idea is widely attributed to Sir Edward Coke. See D.E.C. Yale, Judex in Propria Causa: An Historical Excursus, 33 Cambridge L.J. 80 (1974).
- McConnell, supra note 21, at 11-12 (quoting Brutus, Essay of Brutus II(1787), reprinted in 2 The Complete Anti-Federalist 372–77 (Herbert J. Storing ed., 1981)) (emphasis added).
- See David A. Farenthold, Trump Recorded Having Extremely Lewd Conversation About Women in 2005, Wash. Post (Oct. 8, 2016), https://www.washingtonpost.com/politics/trump-recorded-having-extremely-lewd-conversation-about-women-in-2005/2016/10/07/3b9ce776-8cb4-11e6-bf 8a-3d26847eeed4_story. html?utm_term=.83192d32a907..
- As the late, great Christopher Hitchens put it,
Let’s say that the consensus is that our species, being the higher primates, Homo sapiens, has been on the planet for at least 100,000 years, maybe more. Francis Collins says maybe 100,000. Richard Dawkins thinks maybe a quarter-of-a-million. I’ll take 100,000. In order to be a Christian, you have to believe that for 98,000 years, our species suffered and died, most of its children dying in childbirth, most other people having a life expectancy of about 25 years, dying of their teeth. Famine, struggle, bitterness, war, suffering, misery, all of that for 98,000 years. Heaven watches this with complete indifference. And then 2000 years ago, thinks “That’s enough of that. It’s time to intervene,” and the best way to do this would be by condemning someone to a human sacrifice somewhere in the less literate parts of the Middle East. Don’t let’s appeal to the Chinese, for example, where people can read and study evidence and have a civilization. Let’s go to the desert and have another revelation there. This is nonsense. It can’t be believed by a thinking person.
Homo Sapiens Quotes, goodreads, https://www.goodreads.com/quotes/tag/homo-sapiens (last visited Apr. 29, 2018).
- See McConnell, supra note 21, at 11-12.
- See id. at 10.
- See id. at 7 (citing The Federalist No. 84 (Alexander Hamilton)).
- See id. at 14.
- See Congress Creates the Bill of Rights, Center for Legislative Archives, https:// www.archives.gov/files/legislative/resources/bill-of-rights/CCBR_IIA.pdf (last visited July 11, 2018).
- U.S. Const. amend. IX.
- Lawrence v. Texas, 539 U.S. 558, 593 (2003) (Scalia, J., dissenting).
- See David Strauss, The Supreme Court 2014 Term, Foreword: Does the Constitution Mean What It Says?, 129 Harv. L. Rev. 1, 45-46 (2015).
- U.S. Const. amend. I.
- See, e.g., Gideon v. Wainwright, 372 U.S. 335 (1963).
- U.S. Const. amend. X.
- Indeed, conservatives have argued for the preposterous proposition that both the Ninth and Tenth Amendments have nothing to do with individual rights, but rather reserve power only to the states. See Seth Rokosky, Denied and Disparaged: Applying the “Federalist” Ninth Amendment, 159 U. Pa. L. Rev. 275, 282-83, 286-88 (2010).
- See Police Powers, Legal InformationInstitute, https://www.law.cornell.edu/wex/ police_powers (last visited July 6, 2018).