I have my flak jacket, my helmet, and my concrete bunker. I'm going to need them... because I'm about to be in flagrante delicto of committing the act of controversy.

I am about to make a case for a very selective version of substantive due process.

I'm not talking about the trivial case that only argues for incorporation of some or all of the Bill of Rights to the states. I mean a full-throated argument in favor of so-called "fundamental rights," rights not explicitly enunciated in the Constitution, being used by judges to strike down some laws.

Yep, the same judicial philosophy that was used -- misused, in my opinion -- to bring us the abominations of Dred Scott, Griswold, and Roe, along with many, many others. I hope to show that these were errors of execution, but that the principle is not necessarily wrong per se. And I even argue that selective substantive due process (SSDP) can be used in accordance with the judicial philosophy of "original understanding," which I also support: the idea that what is important is the actual text, read as plainly as possible using the original defintion of the words at the time they were written. Original understanding is not fundamentally inconsistent with SSDP (though it is inconsistent with the way substantive due process is often misused by activist judges).

If this sort of argument turns your crank, read on.

I expect every conservative lawyer who reads this will respond with furious denunciations and counter-arguments; at least I hope so, because I am anxious to test my ideas in the crucible of the marketplace of ideas, an enumerated right of the First Amdendment. Patterico, Xrlq, Clam, Hugh Hewitt, Deacon, Hindrocket, Big Trunk -- I'm pretty sure that every one of them would violently disagree with me and will consider me an idiot, an ignoramus, or both. But I absolutely believe that discussions of judicial philosophy are not the exclusive province of lawyers, nor that lawyers necessarily are better equipped to debate such issues than anyone else. We all live in this society and under the laws it enacts, as interpreted by judges -- who have judicial philosophies; it's as much my business as it is anyone else's. So bring it on.

(If anyone responds to this post in his own blog, please put a link in the comments. I'll try to read as many as I can.)

I'm not a lawyer, I have never been to law school, but I have a significantly greater interest in legal ideas than the typical layman. So rather than start by poring over legal opinions, I start from a historical observation: when the colonists in the late 1700s complained about the tyranny of England, they were not claiming that Parliament had not properly voted on these laws. Nor were they claiming that individual members of Parliament were not properly elected by their constituents. And there was no talk that George III was not the rightful king.

The colonists were flatly asserting that there are fundamental rights that predate the Constitution (which did not of course exist yet), and that government was obliged to protect and recognize those rights, or it was not legitimate. (The most well-known slogan from those days is surely "no taxation without representation," which means governance by the consent of the governed, one of those fundamental rights.)

The architects of the Revolution made this explicit in the Declaration of Independence, as much a foundational document of the United States as the Constitution: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

This is an unequivocal endorsement of the idea of eternal fundamental rights that exist apart from whether any particular nation recognizes them.

Turn to the Constitution. It was written (following the failure of the Confederation) to create a government that would respect these fundamental rights. The Framers did not write federal judicial review into the Constitution; but I would argue it's a natural consequence of it, deriving from the requirements of Article IV, sec. 4 and of Article VI, clause 2. John Marshall was right, at least in essence.

His critics are also right: the courts have carried judicial review way too far. And their primary means of doing so, ever since the dreadful Dred Scott decision in 1857, has been a misapplication of the idea of unwritten fundamental rights that any legitimate government must protect. Today, that idea -- whether used rightly or wrongly -- is typically said to derive from the "due process" clause of the 14th Amendment, which guarantees that "no state shall... deprive any person of life, liberty, or property, without due process of law." They may use other justifications, but it all boils down to the idea that some laws intrinsically violate "due process," even if the correct political process was used to enact them, because they violate one or more fundamental rights.

For example, if a state were to enact a law making self-defense using any kind of weapon illegal in all cases, I believe that would be unconstitutional, even though there is no explicit right to self defense: the 2nd Amendment guarantees only the right to "keep and bear" arms... not to use them; and it has never even been formally incorporated to the states anyway. But the original understanding of that amendment clearly included the right to use the damned things, else why bother protecting the right to bear them? There lies a fundamental right that emanates from the penumbra of the 2nd Amendment that I think even a conservative jurist would be hard-pressed to dispute.

That is the argument on a nutshell: whether "due process of law" is satisfied if the state or the feds properly enact the law via an elected legislature, and if the law is not directly and explicitly forbidden by the Constitution, as those who oppose substantive due process believe... or whether the law's substance must also conform to fundamental rights, even those unnamed in the Constitution, for the law to be constitutional. If I have it wrong, you lawyers, please correct me.

Bork, Scalia, and to a lesser extent Thomas all take the first position. They are all clever men, and they are all honorable men; you won't catch them out in any obvious contradictions. Clearly, this absolutist position is consistent with original understanding. But that does not mean that a different approach would therefore be inconsistent with original understanding.

I believe that it is perfectly legitimate to strike down laws, even if they are not explicitly forbidden by the Constitution, when they violate the original meaning of the text of our other foundational documents -- excepting only when the Constitution or some Treaty explicitly allows that law, overriding the original meaning of the eighteenth century, thus amending not only the Constitution itself but simultaneously our current understanding of legitimacy.

So I believe there are fundamental rights that were explicitly referred to in the text of our foundational documents. And I believe that the Framers explicitly wrote that governments that do not respect those fundamental rights are illegitimate. I believe (as the Constitution states in the 9th Amendment) that some of these rights may not have been explicitly written into the Constitution, either the body or the amendments. Yet I believe that the Court is nevertheless obliged to ensure that those unenumerated rights are respected, even if they have not yet been formally recognized by amendment.

Necessarily, then, I believe that it is sometime the duty of the Court to "find" rights, even when they emanate from the penumbra... so long as it's from the penumbra of the foundational documents, and not from the penumbra of Earl Warren.

I absolutely agree with Scalia that the Constitution is not a "living organism." It's a documentation of a finite series of ideas. And I definitely understand the danger of (unrestricted) substantive due process: that "rights" will endlessly multiply as different judges "find" (create) them ad hoc to flog their personal political beliefs and enshrine them as constitutional law... which of course has already happened many times, alas.

But the solution is not to throw out the very idea and claim that a right is only a right if it has explicitly been written into the Constitution by amendment. There is a point where absurdity really does become a factor: Bork argues in the Tempting of America that the Court could properly have struck down state-enacted racial segregation based upon the 14th Amendment... but not racial segregation enacted by Congress, since the equal-protection clause explicitly refers to states.

While this is factually true, it's manifestly risible that only state laws must apply equally to every person, but that the federal government can enact unequal laws whenever it wants. Virtually every American understands perfectly well today that "equal protection of the laws" is a fundamental requirement of every legitimate government; and it is manifestly absurd to argue that the federal government can blithely violate this fundamental right unless we pass yet another amendment "excorporating" the 14th Amendment to the feds!

The same is true of basic liberty, which was explicitly referenced -- in the sense of a fundamental right that every legitimate government must protect -- in the Declaration many years before the Constitution was written, and was certainly not explicitly proscribed by the later document. Taney's great error in Dred Scott was that, while he correctly understood that there was a fundamental right to property, he willfully ignored the fact that there was an even more fundamental right to liberty: liberty and equality for "all men," including black slaves, which trumped their so-called owners' right to keep their "property."

Here is another basic point. Many of the signers of the Declaration of Independence did not believe that "all men are created equal" applied to black slaves; but the plain meaning of the words "all men," even in 1776, was the same as it is now: it means every person, without exception. That some folks 224 years ago -- or later, in 1857 -- refused to accept the consequences of that meaning does not change the fact that that was, in fact, the meaning of those words, even back then. I believe Bork explicitly agrees with this point.

Thus, Chief Justice Taney misused the concept of unenumerated fundamental rights exactly the same way that the Berger Court did in Roe v. Wade: if the foetus is a person, then the fundamental right to life of that person would trump the liberty right of the mother (I see a very natural heirarchy in that phrase from the Declaration: you have the right to pursue happiness, but only if it does not infringe the right to liberty; and you have a right to liberty, but only if it doesn't infringe the right to life.) However, the Court has no jurisdiction to decide at what point during a pregnancy that occurs.

This is what I mean by selective substantive due-process: before "finding" a right to abortion, the Court must first have clear and unambiguous guidance on when, in the course of a pregnancy, from zygote to birth, the entity becomes, not a "human being," but a legal person. This guidance can come from Congress, from a constitutional amendment, or perhaps from a state legislature; but it cannot come from the Court, because there simply is no clear concensus in society, and the definition is likely to change from time to time.

Yet even in 1857, if pressed, nearly everyone in America would have agreed (reluctantly in some cases) that a black man was a "person;" the plain understanding of that word would certainly include him... while it would not necessarily have included a zygote in 1973. That is the distinction: the Court should illuminate, not manufacture, fundamental understandings. It can find them, but it cannot simply create them.

What is needed for this judicial philosophy to work is a serious effort to identify the broad categories of rights that would have been understood by the Framers of the foundational documents and the citizens for whom they wrote. What rights would they have believed were covered by the phrases they used (such as "liberty" or "habeas corpus"), even if they would not have agreed with the current understanding of the consequences of those rights?

Would the men who wrote the Declaration, the Constitution, and the 1st and 4th Amendment have understood that liberty included a realm of privacy within which no legitimate government should intrude, even if they did not agree on what, exactly, was inside that realm? Would the men who routinely used arms to defend their lives, their property, and their sacred honor and who wrote the 2nd Amendment have believed that liberty and freedom necessarily implied a fundamental right of self defense, even though they never wrote any such thing into the Constitution itself?

When these questions and this list of fundamental rights can be adequately and publicly answered by an individual jurist; when his list clearly derives from the foundational documents and not ex-post facto to justify his politics; when he applies the list consistently; and when his actual decisions make clear sense anent that list; then and only then can he legitimately use substantive due process as a part of his judicial philosophy and still adhere to the necessary requirement of ruling by original understanding, without simply legislating from the bench. This is what I support: SSDP, selective substantive due process.

That is my position today; but it is entirely rebuttable if someone offers an argument that makes sense to me, that comports with the whole point of the Revolution without necessarily leading to absurdist results. I await your slings and arrows.

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» Activism from CommonSenseDesk
Dafydd at Captain's Quarters makes an interesting case for a selective approach to due process. This is a very interesting post. You should read it. [Read More]

Tracked on July 8, 2005 9:52 PM

» Fundamental rights and the Constitution from ThoughtsOnline
Dafydd properly rejects the claim "that a right is only a right if it has explicitly been written into the Constitution by amendment". A "they just forgot to put it in" position does make sense... [Read More]

Tracked on July 8, 2005 11:43 PM

» SDP from damnum absque injuria
Dafydd ab Hugh has joined the Socialist Democrat Party. Or something like that. ... [Read More]

Tracked on July 9, 2005 1:27 PM