National Review legal scholar Matthew Franck seems to be getting into the habit of tangling with my favorite legal scholars lately. First it was Jack Balkin, now it’s Roger Pilon, director of the Center for Constitutional Studies at the Cato Institute. I was happy to hear that Randy Barnett had forwarded my post about Balkin and Franck to Pilon, who informed me about his exchange with Franck on the subject of substantive due process. It began with Pilon’s op-ed in the Wall Street Journal (reprinted here) condemning last week’s en banc ruling from the DC circuit overturning a previous ruling that terminally ill patients have a constitutional right to access to experimental drugs not yet approved by the FDA (Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach). Frank responded to that op-ed, leading to a Pilon reply, then a Franck reply, then another Pilon reply, and a final Franck reply. Got all that? Okay, let’s look at the argument.
The argument shows quite clearly the difference between libertarian and conservative judicial theories. Pilon justly praises Judith Rogers for her dissent from that en banc ruling. Rogers points to the long history of the court protecting unenumerated rights and wonders why in the world this one should not be protected. Pilon writes:
Citing the Fifth Amendment’s right to life, the Ninth Amendment’s assurance to the Constitution’s ratifiers that the rights retained by the people far exceed those named in the document, and the Supreme Court’s “fundamental rights” jurisprudence, Judge Rogers argued that the right to life, the right to self-preservation, and the right against interference with those rights — which the FDA is guilty of — are of one piece. They are deeply rooted in common law and the nation’s history and traditions, implicit in the concept of ordered liberty, and thus “fundamental.”
Indeed, it is startling, she noted, that the rights “to marry, to fornicate, to have children, to control the education and upbringing of children, to perform varied sexual acts in private, and to control one’s own body have all been deemed fundamental, but the right to try to save one’s life is left out in the cold despite its textual anchor in the right to life.” Because the rights at issue here are “fundamental,” she concluded, the court must apply, in judicial parlance, “strict scrutiny.” The burden is on the FDA to show why its interference is justified — to show that its regulatory interests are compelling and its means narrowly tailored to serve those interests.
This is fairly standard libertarian constitutional theory, though argued in a slightly different paradigm; It doesn’t strictly follow Randy Barnett’s presumption of liberty and I suspect that is intentional. Rogers is arguing that even without applying that theory, even if one were to apply the court’s usual fundamental right vs mere liberty interest standard, the court still should have protected this right. Surely if the court deems the right to marry, the right to have children or the right to direct one’s children’s education to be fundamental to ordered liberty, they should also find a right to take whatever steps are necessary, without any chance of harm to another person, to save their own life.
It has often been said by libertarian legal scholars that the level of abstraction with which one states the question in a given case will determine the outcome. This can be shown by looking at two infamous cases, Bowers v Hardwick and Lawrence v Texas. In the first case, the Supreme Court upheld a Georgia anti-sodomy law by stating, in its very first sentence:
The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.
That is stating an issue at its most specific. The more specifically you state it, the more likely you are not to find that right named in the Constitution. The Lawrence ruling overturned that decision, in large part because the majority stated the issue on a much more general level. Indeed, Justice Kennedy began his ruling by explicitly rejected that level of abstraction:
The Bowers Court’s initial substantive statement–”The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy … , discloses the Court’s failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.
Kennedy went not one, but two levels of abstraction up. The first level up would have grounded this ruling in a right to privacy, following on Roe and Griswold, but Kennedy went one more level up from that and grounded this ruling instead in a general right to liberty. For libertarian-minded legal scholars, this is a crucial distinction and truly one of the keys to our basic approach to constitutional law. This idea is anathema to conservative jurisprudence.
In the recent DC circuit case, levels of abstraction mattered very much. And as Pilon notes, the majority in that case made the same mistake that the Supreme Court made in Bowers:
In a long footnote, Judge Thomas Griffith, who had dissented in the earlier opinion but wrote now for the majority, recast the right at issue as “the right to access experimental and unproven drugs in an attempt to save one’s life.” Through such “tragic wordplay,” as the dissent put it, the right ceases to be “fundamental,” under Supreme Court precedents, because it is “not deeply rooted in the Nation’s history and traditions.”
So described, the right is not “deeply rooted,” of course, because the very idea of “experimental and unproven drugs” implies a regulatory regime like the FDA, and that is a recent development. Yet as the dissent detailed, for most of our history individuals were free to take whatever drugs they wanted without a doctor’s prescription. It was only in 1951 that Congress created a category of prescription drugs. Then in 1962 it began requiring drug companies to conduct extensive tests to ensure drug “efficacy,” which led to long delays for drug approval and to the deaths of countless patients who would gladly have borne the unknown risks for a chance at life.
As a legal matter, what Judge Griffith achieved with his linguistic legerdemain was a shift in the burden of proof: No longer would the government need to justify its restrictions; the dying would have to try to overcome those restrictions. But that would be impossible because now the court would no longer strictly scrutinize the government’s rationale. Rather, it would apply a “rational basis” test under which the government would win as long as it had any reason for restricting access. Deference so complete, the dissent noted, amounts to nothing less than “judicial abdication.”
And here is where the argument moves up to a more general argument over the nature of due process. Franck takes the position, as most conservatives do, that any requirement for “due process” is satisfied whenever a legislature passes a law by constitutional means. Libertarians reject this notion and argue that due process is not merely procedural but substantive, that if a law violates the rights of an individual then it is unjust and illegitimate no matter how lawfully it was passed. Jefferson expressed this idea perfectly:
Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.
But Franck argues that as long as a law is duly passed, virtually any law is legitimate:
If this was “substantive due process,” it was a “substantive” guarantee only that legislatures would pass laws that honored the procedural requirements of due process. What Pilon prefers is something that made its first Supreme Court appearance in the Dred Scott case–the assertion that due process limits the range of policy choices a legislature can make, even if it satisfies all of Webster’s requirements of a law of general application, fairly enforced.
Sandefur deftly answered this argument back in 2004:
As one early court put it, such a constitutional provision would be tantamount to saying “You shall not do the wrong, unless you choose to do it.” Mere enactment cannot satisfy the due process clause, therefore, because the due process clause was intended to prevent special laws whereby unpopular minorities were subjected to unfair burdens simply due to their unpopularity: that is, it was written to require that deprivations of life, liberty and property were engaged in for legitimate public reasons, rather than as a mechanism of bullying behavior.
The same problem occurs when we look at the arguments over the 9th amendment. Franck acknowledges that the 9th amendment seeks to protect unenumerated rights, but he argues that the founders never intended for the 9th amendment to be judicially enforceable. Franck writes:
Now to the Ninth Amendment, and Pilon’s fourth just-so story. He claims that if the Ninth Amendment is held to contain (as I say) no judicially enforceable rights, it becomes “mere surplusage.” But this begs the biggest question in constitutional law, namely, how much of the Constitution consists of judicially enforceable principles? Three general answers are available: none of it (i.e., no judicial review at all), all of it (i.e., judicial review becomes judicial supremacy), or some parts and not others. Few hold the first position (perhaps Lino Graglia); Pilon appears to hold the second; I hold the third. If you do not believe the entire Constitution is available for courts to “enforce,” then you have to make an argument for why certain clauses are “in” and others are “out” where judicial review is concerned. But it wouldn’t follow that judicially unenforceable provisions are consequently “surplusage.”
But Pilon is absolutely right. If the Supreme Court cannot strike down laws that impede unenumerated rights, then the 9th amendment might as well be that “ink blot” that Bork claims it is. During the debate over the Bill of Rights, the founders made absolutely clear that the one position that could not be taken was the position that if a right is not specifically enumerated then the government may regulate it as it pleases. The whole argument against having a Bill of Rights was that if you enumerate a list of rights, future governments would take that as evidence that they have the authority to regulate or prohibit any right not explicitly named. Further, Madison announced quite clearly that the entire purpose of the 9th amendment was to prevent that from happening:
“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].
Yet this is precisely the argument made by conservative legal scholars today, that if a right is not explicitly named, the legislature may legitimately regulate it or prohibit it as their pleasure. But by this reading, the 9th amendment becomes superfluous. If the 9th amendment is not judicially enforceable then the 9th amendment might as well read:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people…unless the legislature decides to deny or disparage those rights.
If the 9th amendment is not a limit on what legislatures may do, then it is no limit at all and it might as well not be there at all. Yet the first rule of textual construction is that it must mean something. If all it means is “legislatures may not violate unenumerated rights unless they feel like it” then it means nothing at all. But Madison makes clear that the 9th amendment was written precisely to disprove the notion that unenumerated rights “were intended to be assigned into the hands of the General Government.”
Pilon clearly gets the best of this argument for one simple reason: he’s right and Franck is wrong. Franck’s legal theories on the 9th amendment and substantive due process are clearly contrary to the history and meaning of the Constitution.
Update: My thanks for Roger Pilon for correcting two major errors in this post. It was Judge Judith Rogers who wrote the dissent he praises, not Janet Rogers Brown. And the last sentence was, of course, intended to say that Matthew Franck’s legal theories on the 9th amendment are contrary to the history and meaning of the Constitution. Those corrections have been made above where appropriate.