The Fundamentals of Fundamental Rights

With Justice Kennedy’s retirement from the Supreme Court, there is a lot of discussion of the future of constitutional jurisprudence — in particular the future of abortion rights in the United States. So, this is a good time to review why and how, exactly, fundamental rights are protected under our Constitution.

It’s not a straightforward story. It’s the story of a surprisingly ambiguous Bill of Rights, the polarized politics of Reconstruction, a Supreme Court that cared more about protecting the rights of corporations than of people, and jurisprudential knots the Court has tied itself up in to correct those earlier errors. It’s a story of how lawyers and judges adhere to a collective fiction about how we interpret our Constitution and, to some degree, a story about the absurdity of constitutional interpretation as a whole.

Whatever your view of the scope of the civil liberties provided by the Constitution, it’s worth understanding what the current state of American constitutional jurisprudence is, and the tortured path by which we got here.

The Bill of Rights and the Fourteenth Amendment

We are all familiar with the Bill of Rights — the first ten amendments to the U.S. Constitution, ratified in 1791.

As we learn in grade school, in writing the Constitution, the founding fathers were trying to chart a middle course between the tyrannical central government of the United Kingdom and the impotent central government under the Articles of Confederation. The Constitution created a stronger central government than the Articles did, and the Bill of Rights was added protected the people and the states from that government.

In this historical context, the Bill of Rights is entirely unconcerned with the behavior of the states. The First Amendment starts off, for example, “Congress shall make no law respecting an establishment of religion.” It says nothing about state governments — which were free to establish state religions or forbid other religions as they pleased.

The rest of the Amendments are more ambiguous; they don’t specify that the restrictions are on the federal government alone. Nonetheless, the Supreme Court clarified in 1833 that nothing in the Bill of Rights applied to the states; states could pass whatever laws they pleased. The Constitution was not intended to enshrine any set of “fundamental rights”; the purpose was merely to limit the power of the federal government.

By 1865, after seven decades of sectional conflict and ultimately four years of war over the issue of slavery, it was clear that the Constitution needed to protect people from state tyranny as well as federal tyranny. The result was the Thirteenth, Fourteenth, and Fifteenth Amendments.

In many respects, the key clause to the endeavor of protecting people from state tyranny was Section 1, clause 2 of the Fourteenth Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This clause contains three separate restrictions:

• The Privileges or Immunities Clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
• The Due Process Clause: “No State shall … deprive any person of life, liberty, or property, without due process of law.”
• The Equal Protection Clause: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”

Each of these clauses has an important context and important effect, but the most important one to this discussion is the first clause. Per the text, U.S. citizens have certain rights (“privileges or immunities” — i.e., rights to do certain things, and rights to be free of certain government constraints), and states are forbidden from violating those rights.

What are those privileges and immunities? It’s not clear. But a natural place to look for these rights would be the Bill of Rights, right?

But in 1873, only five years after the Fourteenth Amendment was ratified, the Supreme Court decided the Slaughter-House Cases, which severely limited the reach of the Privileges or Immunities Clause. In its ruling, the Supreme Court used some dubious linguistic tricks to say that the phrase “privileges or immunities of citizens of the United States” only meant a limited set of particular rights that existed by virtue of there being a federal government, such as the right to travel between states or the right to run for federal office.

The Supreme Court, in the words of Professor Akhil Amar, “strangled the privileges or immunities clause in its crib.” It would take 60 years after the Civil War — until 1925 — for the Supreme Court to start striking down state laws as violating what we recognize as civil liberties.

And the only way it got there was through one of our Constitution’s biggest fictions.

The “Due Process” Workaround

Going back to the original Bill of Rights, the Fifth Amendment stated that the federal government could not deprive a person “of life, liberty, or property, without due process of law.”

In context, this clause immediately follows the right to grand jury indictment, the right against double-jeopardy, and the right against self-incrimination. “Due process” meant that if the federal government wanted to lock you away and confiscate your home, you had to be properly arrested, properly indicted, properly tried before a jury of your peers, and properly convicted.

When the 14th Amendment was drafted, it copied this phrase word-for-word, but said that the prohibition applied to state governments. So, state governments, too, had to give every person a fair trial. Clear enough. Right?

Maybe not. Even before the Civil War, the Due Process Clause had started to take on a life of its own. In the infamous 1857 Dred Scott v. Sandford case (which said, among other things, that African-Americans were not citizens), Chief Justice Taney struck down the Missouri Compromise, which prohibited slavery in northern territories. The Court ruled that a slave could not become free simply because the slaveowner brought “his property” into a free territory. Chief Justice Taney’s reasoning is far from clear, but in his decision he wrote that to allow slaves to become free in this way “could hardly be dignified with the name of due process of law.”

This is conceptually confusing, and in some ways is just completely off-the-wall. True, slaveowners were having their “property” taken away without a court proceeding, but slaves weren’t being arbitrarily seized by the government. A validly enacted Act of Congress had set forth the rule that slavery was forbidden in northern territories; bringing slaves to northern territory would make them free. Certainly, if there was a dispute of some sort over the facts of a particular case — for example, whether the slaves had actually crossed the border into free territory — the slaveowner would be entitled to his day in court. But Taney went further, implying that the Due Process Clause placed substantive limits on what laws Congress could pass. In other words, if Congress passed a law that had the result of confiscating somebody’s property, some rotten feature of the law — though it’s unclear what — could taint the whole process , so that nothing that resulted from the law could be considered “due process.”

Despite the vague conceptual underpinnings of this idea, by the turn of the century, a majority on the Supreme Court had picked up Chief Justice Taney’s idea of “substantive” due process and run with it. And because there was a Due Process clause in both the Fifth and Fourteenth Amendments, any due process protections the Court “found” (or created) applied against both federal and state laws.

But the radically conservative Court of that era picked an odd venue in which to apply the expansion of civil “liberties.” In 1897, the Supreme Court struck down a Louisiana law that fined anybody who bought insurance from an unlicensed company, saying that this unconstitutionally deprived people of their “liberty” to contract (Allgeyer v. Louisiana). In 1905, the Court struck down a New York law that limited bakers’ workweeks to 60 hours (Lochner v. New York), again based on a violation of the bakers’ freedom to contract for whatever hours they wanted. This latter case lends its name to the so-called “Lochner era,” in which the Court repeatedly struck down laws that violated the supposed “freedom of contract.”

So, to recap, by the early 1900s, the Supreme Court had ruled (1) that the 14th Amendment did not protect traditional civil liberties, such as were found in the Bill of Rights, and (2) that worker-protection and consumer-protection laws were the true violation of civil rights. A good reminder for those who view the Supreme Court through rose-colored glasses.

In the middle of the Lochner era, however, the Supreme Court finally revisited the issue it had apparently foreclosed in 1873: whether the protections of the Bill of Rights applied to state laws as well as federal ones. By now, Lochner and its progeny were embedded in the law, and it was the law of the land was that the Due Process Clause protected certain substantive, “fundamental” liberties. And if the Due Process Clause protected the freedom of contract — which was found nowhere in the Constitution (more on this later!) — didn’t it also, a fortiori, protect the clearly enumerated rights of freedom of speech, or freedom of religion, or freedom of assembly?

And the answer was Yes. Sure enough, case by case, right by right, the Supreme Court started ruling that state laws could effectively violate the Bill of Rights, via the Fourteenth Amendment’s Due Process Clause. Freedom of speech came in 1925, freedom of the press in 1931, freedom of assembly in 1937, freedom of religion in 1940, and so on. (Again, note that it was not until 1940 that the Supreme Court said that states had to respect freedom of religion!)

During this process, the Court consistently maintained — over the vociferous objection of Justice Hugo Black — that simply being listed in the Bill of Rights was not sufficient to make a right “fundamental” enough to raise “due process” concerns; each right had to be evaluated individually. Indeed, to this day, people have no right to a grand jury indictment in state felony proceedings, as they do in federal felony proceedings (under the 5th Amendment). They also have no right to a jury in state civil cases, as they do in federal civil cases (7th Amendment). And until 2010, the Second Amendment had never been applied to state laws (which is a story in and of itself).

But, as the Lochner era shows, Supreme Court precedent also held that being listed in the Bill of Rights was not necessary for a right to be considered fundamental. So, by the mid–20th Century, the Supreme Court had created a world in which (1) there was some set of “fundamental rights” in the Constitution; (2) being enumerated in the Bill of Rights was neither necessary nor sufficient for identification of those rights; and (3) those rights were protected only because any law abridging them was a violation of “due process of law.”

It’s worth emphasizing the absurdity of this. The Constitution contains a mechanism for making sure that states don’t violate people’s rights: the Privileges or Immunities Clause. But with the Supreme Court having pulled the teeth of that clause, all of the civil rights it began enforcing had to somehow be found in the phrase “due process of law.” In other words, there were certain things that state legislators or governors simply couldn’t do — laws they simply could not pass and still call it “due process of law.”

The whole “due process” workaround is a fiction, but a fiction that judges and lawyers accept because to do otherwise would be to up-end 140 years of civil liberties jurisprudence — something that judges are loathe to do. So the fiction lives on.

Unenumerated Rights and the Ninth Amendment

Above, I noted that the Supreme Court has held since the late 19th Century that being in the Bill of Rights was not a necessary condition for a right to be protected under the Due Process Clause. “Substantive due process” protected any “fundamental” right — enumerated in the Constitution or not.

So, how does one recognize a fundamental right? What exactly is protected by the Due Process Clause?

This question is related to the tricky problem of the Ninth Amendment, which famously reads:

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

The first eight amendments list the specific rights that the newly free people in 1791 found most important. The Ninth Amendment was a command not to overlook other rights that may be fundamental to a free people. Indeed, fear that a bill of rights would be taken as exhaustive was the chief ground on which Alexander Hamilton and other Federalists initially opposed the Bill of Rights.

But the Ninth Amendment has basically been ignored as a source of law — mostly because it is too vague to offer any real guidance. If the Bill of Rights is not exhaustive, what other “unenumerated” rights are “retained” by people in America? And are there any decision criteria other than the whims of nine judges?

The first unenumerated right to be widely recognized was Lochner’s liberty of contract. This right was used for years to strike down minimum wage laws, maximum hour laws, and other protections for workers. Thankfully, in 1937, the Supreme Court shut the door on this line of jurisprudence and has not looked back. (Yet. Many observers are worried that the current slate of conservative Justices may start back down that path again.)

During the Lochner era, the Court also began to recognize other novel fundamental rights, such as the right to educate your child in a private school (Pierce v. Society of Sisters, 1925). And even after the death of Lochner, the Court continued to recognize unenumerated rights; Lochner may have an error, but its underlying principle was still valid.

The question of unenumerated rights became particularly problematic starting in 1965, when the Court started down the road of recognizing rights of bodily autonomy. This started with Griswold v. Connecticut (1965), which recognized the right of married couples to use contraception, and which was followed in 1972 by Eisenstadt v. Baird, which extended the right to unmarried couples.

Griswold presented an opportunity for the Court to finally clarify the scope of the Ninth Amendment. Indeed, in his concurrence to the Griswold opinion, Justice Goldberg justified the opinion on Ninth Amendment grounds:

The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.

But Justice Goldberg was joined by only two other justices, so this view of the Ninth Amendment was never adopted by the Court.

The view that was adopted by the Court has been a source of controversy ever since. Instead of finding the right to use contraception within the sphere of one of the Amendments in the Bill of Rights, Justice Douglas, who wrote the majority opinion, found the right…everywhere. And nowhere. Justice Douglas found “penumbras” around the First, Third, Fourth, Fifth, and Ninth Amendments, which created a “zone of privacy” within which the right fell. Even many people who agree with the outcome in Griswold find Justice Douglas’s reasoning less than convincing.

The uncertain grounding of Griswold did not stop the list of unenumerated rights from growing. By 1990, the Court recognized a right to refuse medical treatment (Cruzan v. Missouri). In 2003, it recognized a liberty of consensual sexual conduct (Lawrence v. Texas).

And, of course, in 1973, the Supreme Court decided Roe v. Wade, which recognized the right of a woman to terminate her pregnancy.

Today, in part because of Roe, few areas of constitutional law are as contested and controversial as the idea of unenumerated rights. Progressives believe that the recognition of unenumerated rights is an essential part of what it means to have freedom. Some ultra-conservatives believe that Roe v. Wade’s freedom of bodily autonomy is just as misguided and unjustified as Lochner’s freedom of contract.

Unfortunately for public debate, this is not really a question that the Constitution can answer. Under our current system, questions of fundamental rights are left to nine judges, who lack political accountability, and who are appointed for life to terms that end randomly or strategically.

Minor edits made on Oct. 19, 2018