Unenumerated Rights and Legitimate Authority

This began as a response to a comment by Eric Seymour in a post at In the Agora, but I'm moving it up here because the response became so long and delved into the details of constitutional interpretation so deeply that I thought it deserved to be its own post. It is addressed specifically to him, but I do not want anyone to think that I am picking on him specifically. Eric does a good job of presenting what is the most commonly heard conservative argument on "judicial activism" and the limitations on the government and the individual. You may also want to read the whole series of comments at the link above to get some background before reading this, as I make some assumptions about Eric's position based upon earlier statements he made in the exchange between us. I think this is a pretty good representation of the basic disagreement between the conservative and libertarian positions on constitutional interpretation (recognizing that those labels are always incomplete and sometimes incorrect as well), and hence a good opportunity to examine both positions. Eric wrote:

It sounds like you're arguing that by definition there can be no such thing as judicial activism. I wonder, though, if the courts were to shift to an understanding of the 1st amendment more consistent with conservative opinions--if, for example, they started ruling that Ten Commandment displays and nativity scenes on public property, prayers at public school events, etc. were acceptable--whether you might change your tune.

No, my position is not that there can be no such thing as judicial activism by definition. My position is that as the phrase is used, it's never given a coherent definition that is adhered to consistently. And this conversation is an excellent example of that. The closest you have come to defining the phrase is that you seem to think that any time a ruling is based upon an unenumerated right drawn from the application of general principles in the text, as opposed to a specifically enumerated right, that amounts to "judicial activism". But that simply isn't a coherent position for the reasons I stated above.

First, the Constitution demands such reasoning by necessity. And you need to go back to one of the central debates surrounding Constitutional ratification to understand this. The strongest argument against ratifying the Constitution at the time was the lack of a bill of rights. Some of the state conventions in fact refused to ratify it without a promise that a bill of rights would be attached to it. The Federalists responded by arguing that since you cannot possibly list all of the rights an individual has it might be dangerous to list some of them because then all other rights not listed would be viewed as fair game for government intrusion (which appears to be exactly the position you're taking). Hamilton made this argument in Federalist 84. James Madison, who was initially opposed to a Bill of Rights for this very reason but was convinced of the need for one by Jefferson, came up with a way to have a bill of rights without that danger. In presenting his list of amendments to the Congress, he said:

"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 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 fourth resolution was what we now know as the 9th amendment, which specifically rules out the position that any right not listed specifically is within the government's power to regulate as it sees fit. There can be no doubt, then, that there are specific rights not mentioned in the bill of rights that must be protected against government intrusion. Therefore, the argument that any ruling that is not based on a right specifically enumerated is "judicial activism" or "legislating from the bench" simply is not a coherent argument. At the very least, one must offer some criteria by which to determine when the protection of an unenumerated right is legitimate and when it is not legitimate in order to justify such an argument, and that criteria must be specific to the case at hand. The general statement that if it's not listed specifically then the courts are being "activist" in "creating a new right" is prima facie incoherent and contradictory to the history of the text. In this latest reply, however, you seem to be shifting the definition a bit to make it more vague and undefined. You say:

Just like in cases regarding "states' rights," I of course instinctively object more strongly when I disagree with the outcome, but for consistency's sake I must object to any case where a court has overstepped its authority.

I will grant that some amount of what you might call "penumbral reasoning" is necessary, but I personally think that has gotten way out of hand to the point where judges are substituting their personal philosophies for sound Constitutional interpretation. It is a question of degree, then, not of type. But that does not mean that any objections are invalid.

I think we're on to something here, but it needs to be stated much more objectively in order to have any real meaning. As it is, it sounds very much like Justice Stewart's famous statement about pornography, that he could not define it but "I know it when I see it." I do agree with you that it is a question of degree, and clearly there are instances where a ruling seems entirely divorced from the text. But we have to have some criteria for distinguishing between legitimate and illegitimate assertions of authority. And you must keep in mind that the question is not whether an individual has the right to do X; the question is whether government has the legitimate authority to prevent them from doing X. The founding principle of our system is that we are endowed with rights that are inalienable, that those rights exist prior to the formation of a government, and that we create governments for the purpose of protecting those rights that we already have. This means, at a minimum, that the burden of proof is on the government (i.e. the majority) to show that it has a legitimate authority to control a given action rather than on the individual to prove that they have a right to do something.

Once we can agree, as it seems we have, that (at least some) unenumerated rights are real, and agree, as it seems we have, that we must therefore have some criteria for distinguishing between legitimate authority and illegitimate authority, then we can move on to the question of what that criteria should be and compare it to the criteria that the court has used to make that determination in the past and today. And here I will be forced to characterize the standard conservative position, and I will attempt to do so without caricature. A good place to start would be to look at the Lawrence decision, because this is an excellent example of a ruling that upheld an assertion of unenumerated rights that most conservatives labeled "judicial activism." The Lawrence decision was the 2003 ruling that struck down a Texas law that made homosexual sodomy between consenting adults illegal.

Conservative response to this decision was pretty standard and predictable. They argued that this was an example of "judicial activism", where the court "discovered" or "created" a previously non-existent "right to homosexual sodomy" that had never before been found in the text of the Constitution. We've already discussed and dismissed the notion that merely because a right is not specifically mentioned it does not exist, so that by itself doesn't tell us much. We have to go one level deeper, to the question of why conservatives believe that this unenumerated right was not legitimate. And their argument was based essentially on either their conception of the original intent of the Constitution, or the original meaning to those who ratified it, depending on who was making the argument. The argument goes essentially like this: at the time of the ratification of the Constitution, laws against homosexual sodomy were widespread in the states and were part of a very longstanding tradition of such prohibitions in Western law. Neither the founding fathers nor the citizens who ratified the Constitution that they wrote would conceive of the sphere of individual rights that they sought to protect as including a right to homosexual sodomy. Therefore, for a court to "discover" such a right in a document that they wrote and ratified is to substitute their own ideological preferences for the clear meaning of the Constitution when viewed in historical context.

It's a compelling argument, but I believe it is fundamentally flawed. Let's consider another case with the same arguments being used against, the Loving v. Virginia decision that struck down laws against interracial marriage. Precisely the same argument was made against that ruling, of course. Laws against interracial marriage or "race mixing" had a long tradition in Western law and were present in many of the states at the time of the ratification of the Constitution, just like laws against sodomy. Until 1967, no court had ever "found" a "right to interracial marriage" in the text of the Constitution. Yet is it not clear that laws against interracial marriage, regardless of how long they had been around, were a violation of the rights of liberty and freedom of conscience that the founders so eloquently defended in other instances? Today, only a fiend or a demagogue could seriously argue that anti-miscegenation laws were consistent with the founding principles of this nation. Who among us would argue that laws which forbid a person to marry the person they love merely because they have a different skin color are logically consistent with the principle that we are endowed with inalienable rights, among which are the right to life, liberty and the pursuit of happiness?

Here is another example: blasphemy laws. The laws of many states at the time of the ratification punished people for blasphemy or heresy. If a state attempted to punish blasphemy today, the courts would no doubt overrule such laws. And the very same argument could be used against that ruling, that there was a longstanding tradition and history of anti-blasphemy laws that were present at the time of the founding, so therefore the court is "creating" a "right to blasphemy" that the founders could not possibly have intended at the time. But who would pretend that such laws are consistent with the rights of conscience so eloquently defended by Madison, Jefferson and many others among the founders? No one, I would hope.

So the key question then comes down to this: do we govern by the principles of liberty and freedom of conscience that our founders defended so brilliantly so often, or do we govern by the compromises that they made on those principles for the purpose of viability? Should we be guided by the ideals of freedom set out so boldly in the Declaration, or by their own occasional failure to extend those principles where today they self-evidently should have done so? The founding fathers were eloquent in their statements of principle, but like all men they were still products of their time and they often failed to apply those principles in situations where no reasonable man today would deny they should have applied. So are we to be governed by their failures of application or by their far more accurate declarations of the principles of freedom and liberty?

There is still a deeper level of argument here, and it involves the burden of proof that I mentioned above. The prominent misconception is that the individual must assert a legitimate right to do something, but in reality the burden should be on the government (i.e. the majority) to show that it has a legitimate authority to prohibit them from doing so. On what legitimate basis does the government assert the authority to tell consenting adults what they may do with each other in the privacy of their own home? The courts have dealt with this question by developing a two-tiered system of review depending on how "fundamental" a right is in their estimation. Since the mid 1900s they have distinguished between "fundamental rights" and mere "liberty interests", and have defined a fundamental right as one that is "implicit in the concept of ordered liberty" such that "neither liberty nor justice would exist if they were sacrificed." But as Randy Barnett points out in his brilliant analysis of the Lawrence decision:

The outcome of that analysis depends almost entirely, however, on how specifically you define the right being asserted. The more specifically you define the liberty at issue--for example, a "constitutional right of homosexuals to engage in acts of sodomy" - the more difficult a burden this is to meet and the more easily the rights claim can be ridiculed. Although "liberty" as a general matter is obviously deeply rooted in our history and traditions, the specific liberty to use contraceptives is not. Nor are many other liberties, especially if unknown at the founding. Even liberties that existed at the founding, like the liberty of self-medication, have not to date been deemed "fundamental" by the Court.

Whenever a particular liberty is specified, therefore, it is always subject to the easy rejoinder: "Just where in the Constitution does it say that?" And that rejoinder is offered notwithstanding the plain language of the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

Barnett goes on to note that the Lawrence decision, in a very important development, does not apply the traditional "fundamental right" analysis but instead bases itself on a general right to liberty, whereby the burden is placed where it rightly should go: on the government to justify their attempt to control the actions of the individual:

Although he never acknowledges it, Justice Kennedy is employing here what I have called a "presumption of liberty" that requires the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow "fundamental." In this way, once an action is deemed to be a proper exercise of liberty (as opposed to license), the burden shifts to the government.

And he points out that the only rationale that the state of Texas could offer for such a law was tradition and the legislature's judgement that the action, though it did not harm any other person or deprive any other person of their rights, was "immoral" and therefore should be banned. And as Barnett points out, if we were to consider this justification to be sufficent in and of itself to justify using the coercive power of the state, there are literally no limits to the power of government:

A legislative judgment of "immorality" means simply that a majority of the legislature disapproves of this conduct. But justifying legislation solely on grounds of morality would entirely eliminate judicial review of legislative powers. How could a court ever adjudicate between a legislature's claim that a particular exercise of liberty is "immoral" and a defendant's contrary claim that it is not? In practice, therefore, a doctrine allowing legislation to be justified solely on the basis of morality would recognize an unlimited police power in state legislatures. Unlimited power is the very definition of tyranny.

I think Barnett is exactly correct here, and I believe that his "presumption of liberty" idea is perhaps the most important development in judiical theory in decades. By placing the burden of proof properly on the government to assert a legitimate authority rather than on the individual to assert a given right, we properly return to the principles of the nation's founding while being able to leave behind the compromises and mistaken application of those principles. And we restore the legitimate basis of law that was laid out by Jefferson when he said:

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.

The limits of our liberty are, according to Jefferson, prescribed by the equal rights of others. Those laws which remove the freedom to act in ways that do not deny the rights of others or harm them against their will are laws which violate the rightful liberty that we are endowed with, and which no government may rightfully do away with.