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Pursuing the Pursuit of Happiness

Most of us have long taken for granted the promise of our Constitution that certain core liberties—including the freedoms of speech, press, and religion—cannot be abridged by the states or by the federal government without extraordinary justification. A point easily forgotten is that it was not always so—that, for nearly the first eighty years of our Constitution’s history, the Bill of Rights protected these vital liberties only from interference by the federal government. The degree to which the states were obliged to respect the civil liberties of their own residents was largely a matter for the states themselves to decide.1 One need only recall the history of slavery to recognize how hollow is a guarantee of liberty that binds only half the government.

Enacted in the wake of the Civil War, the Fourteenth Amendment radically changed this basic pattern, imposing strong, federally enforceable limits on the actions of states and their subdivisions. The Fourteenth Amendment decreed that states may neither deprive persons of life, liberty, or property without due process of law nor deny persons the equal protection of the laws. Relying primarily on the first of these prohibitions—the Due Process Clause—the Supreme Court has for decades read the Fourteenth Amendment’s restrictions on the states as “incorporating” many of the guarantees the Bill of Rights secured against the federal government in 1791. Thus today it is understood that states, not just the federal government, are indirectly bound by the First Amendment’s command that “Congress shall make no law…abridging the freedom of speech.”

As Justice Cardozo explained in 1937, the Supreme Court’s practice of reading the Fourteenth Amendment to incorporate certain protections derived from the Bill of Rights “had its source in the belief that neither liberty nor justice would exist if [those rights] were sacrificed.”2 As applied to some rights—those “found to be implicit in the concept of ordered liberty,”3 as Cardozo put it—the Fourteenth Amendment’s mandate that no state may deprive any person of liberty without due process of law has been construed to mean that certain deprivations of those rights are forbidden, whatever “process” might be employed in bringing about those deprivations. Some have found this to be an unnatural reading of the amendment’s words, which seem to suggest that government may deprive persons of any imaginable sort of liberty, provided it uses appropriate legal process. But the Court has adhered to this reading. The result is that the Due Process Clause of the Fourteenth Amendment has become the chief protector of “substantive liberties”—such as the freedoms of speech, press, and religion—against adverse action by the states.

The doctrine that the Due Process Clause protects substantive liberties has acquired a peculiar name in legal circles: “substantive due process.” Burdened with a label that is itself an oxymoron, the concept has been an easy target for ridicule. Professor John Hart Ely has compared “substantive due process” to “green pastel redness.” 4 And someone reading the entire text of the Fourteenth Amendment for the first time might wonder why the Court ever resorted to the seemingly inapplicable Due Process Clause to protect substantive civil liberties. After all, a separate clause in the same amendment—the Privileges or Immunities Clause—provides that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” As Justice Hugo Black long insisted, it is not at all difficult to read that phrase to mean that the states may not infringe upon the liberties listed in the Bill of Rights (and, although not according to Justice Black, perhaps some other liberties as well).

Unfortunately, shortly after the Fourteenth Amendment was adopted, the Supreme Court rendered a now infamous ruling in the Slaughter-House Cases of 1873 that, combined with several later rulings, essentially interpreted the privileges or immunities of US citizens to mean little beyond the right to mail a letter to one’s congressman, thereby all but foreclosing reliance on that clause for any meaningful protection of rights.5 Litigants and the courts, if they wanted to argue that states must respect the Bill of Rights, were subsequently forced to rely solely on the ill-adapted Due Process Clause. Although there is considerable consensus among constitutional thinkers that the Supreme Court made a scandalously wrong decision in the Slaughter-House Cases, the Court has continued to rely on the Due Process Clause to do much of the work that many believe the Privileges or Immunities Clause was designed to do, and would have done better.

The debate over substantive due process continues unabated. But this is less because of cases in which courts have construed the Due Process Clause to protect liberties specifically listed in the Bill of Rights than because of instances in which courts have read the clause to protect so-called “unenumerated rights”—rights not expressly listed anywhere in the Constitution yet deemed constitutionally protected from government infringement. Since the mid-1920s, the Supreme Court has recognized a small number of such rights, some famously controversial—contraception, abortion—others less so—rights to marry, to send one’s children to nonpublic schools, to teach and to learn foreign languages, to live with family members of one’s choice.

But litigants’ attempts to gain recognition for other unenumerated rights over the past quarter-century have been unsuccessful. The Court has said, for instance, that the Due Process Clause does not protect a right of adults to engage in consensual homosexual sodomy even when they do so at home.6 Most recently, the Court declined to recognize a right of the terminally ill to have the assistance of a physician in ending intractable suffering by hastening death.7

Aware that decisions recognizing unenumerated rights are particularly vulnerable to the charge that they reflect mere personal predilection rather than legal principle, judges tend to resist claims that rights not enumerated in the Constitution or previously acknowledged by the Supreme Court should be accorded protected status under the Due Process Clause. Quite aware of the linguistic awkwardness of what they are doing, most judges are willing to read the Due Process Clause of the Fourteenth Amendment as protecting the substantive rights listed in the Bill of Rights, such as speech and religion. But the lawyer who argues that the Due Process Clause protects some new unenumerated right will get a cool reception from the courts. With respect to unlisted rights, substantive due process seems doubly divorced from the constitutional text.

This is a sad and unnecessary state of affairs, according to Charles L. Black, Jr., Sterling Professor Emeritus at Yale Law School and adjunct professor of law at Columbia Law School. Deservedly one of the most respected US constitutional scholars, Professor Black begins his latest book, A New Birth of Freedom, with the blunt charge that “the foundations of American human-rights law are in bad shape.” Black observes that the particular rights listed in the Bill of Rights “are very plainly insufficient to found a system [of human rights that is] broad and comprehensive enough for a really free people to walk around in.” He then complains that the doctrine of substantive due process, “a desperate answer to a desperate need,” “has been inflated into a patched and leaky tire on which precariously rides the load of some substantive human rights not named in the Constitution.” In his book, Black “attempts the construction of a better system of reason for the grounding of constitutional human rights in this country.”

Black’s case for a better system rests on three national “commitments”: (1) the opening paragraphs of the Declaration of Independence (1776); (2) the Ninth Amendment (1791), which holds that the Constitution’s enumeration of certain rights shall not be construed to deny or disparage other rights retained by the people; and (3) the Fourteenth Amendment (1868), specifically its Citizenship Clause, defining state and national citizenship, and its Privileges or Immunities Clauses saying, as we have noted, that no state shall make or enforce laws that abridge the “privileges or immunities” of US citizens. Black’s “keystone thesis” is that, based on these three sources, we may use standard forms of legal reasoning to arrive at “an open-ended and open-textured series of human rights.”

Black begins with the Declaration’s statement of the “self-evident” “truths” “that all Men are…endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness,” and “that to secure these rights, Governments are instituted among Men.” Black argues that the Declaration has the force of law, pointing to the words of the Declaration’s penultimate sentence, which “demolish one legal authority and set up another,” and which he reads as “constitutive words”—“the root of all political authority among us, of all legitimate exercise of power.” In Black’s view, if the Declaration is law, not simply rhetoric, then the document’s statement that governments are established “to secure…rights” has the force of a command. And because the Declaration’s language “speaks to the duty of governments in general,” Black reads it as obligating the states, not simply the national government, to secure the rights of life, liberty, and the pursuit of happiness.

Black anticipates resistance to his notion of the Declaration as both more than a purely political tract and more even than a document that may once have been law but has since been reduced to politics or poetics. But he makes clear that his view of the Declaration as binding law today is not necessary to the system of human rights he reads the Constitution as supporting. Black’s point is that whether or not the Declaration stands as law in its own right, it is important to understanding the other two foundations of the human rights system he describes: the Ninth and the Fourteenth Amendments.

Black puts heavy emphasis on the statement in the Ninth Amendment that the constitutional listing of certain rights should not be interpreted to “deny” or to “disparage” other rights “retained by the people.” According to Black, the Ninth Amendment applies both to the federal government and to the states. The rule of law it announces, he argues, is that unlisted rights “retained by the people” must “be treated as on an equal footing with rights enumerated.” To Black, this means that if it is legitimate for the rights enumerated in the Bill of Rights as guarantees against the federal government, such as freedom of speech, to serve as the basis for judicial review of state as well as federal legislation, then unenumerated rights must also be seen as valid bases for judicial review of state and federal government action alike. To conclude otherwise, Black says, would be to “disparage” these unenumerated rights, contrary to the Ninth Amendment’s command.8

Black then turns to the central problem posed by the Ninth Amendment: “What do you do when you are solemnly told, by an authority to which you owe fidelity, to protect a generally designated set of things in a certain way, but are…not told what particular things this set comprises?”

  1. 1

    See, e.g., Barron v. Baltimore, 32 US (7 Pet.) 243 (1833), which holds thatthe states are not bound by the Fifth Amendment’s prohibition on taking property without just compensation.

  2. 2

    Palko v. Connecticut, 302 US 319, 326 (1937).

  3. 3

    Palko v. Connecticut at p. 325.

  4. 4

    John H. Ely, Democracy and Distrust (Harvard University Press, 1980), p. 18.

  5. 5

    83 US (16 Wall.) 36 (1873). In the Slaughter-House Cases, the Supreme Court interpreted for the first time the Fourteenth Amendment’s reference to the “privileges or immunities of citizens of the United States,” which the amendment prohibited the states from abridging. Before the Civil War and the Fourteenth Amendment, the prevailing legal view had been that most of the rights that the states had to respect arose from state citizenship, rather than from US citizenship. The Fourteenth Amendment simultaneously recognized the old distinction between state and national citizenship and created a new link between the two by specifically providing in the Citizenship Clause that “[a]ll persons born or naturalized in the United States” would be citizens both of the US and of “the State wherein they reside.”

    Concentrating on the amendment’s distinction between the two forms of citizenship rather than on the newly established link between them, the five Justices in the majority in the Slaughter-House Cases insisted that the only “privileges or immunities” the states were prohibited from abridging were those exceedingly few rights that owed their existence to the US government or its laws. Excluded from this set of rights, the Court said, were those most fundamental rights belonging to the citizens of all free governments, as opposed to those rights peculiar to US citizens and belonging to them solely by virtue of their national citizenship.

    Later cases confirmed that the Privileges or Immunities Clause, once narrowed in this way, offered no protection for most of the basic liberties guaranteed either by the Bill of Rights or otherwise. Notwithstanding the evident purpose of the Fourteenth Amendment to alter fundamentally the relationship between the federal government and the states, and the susceptibility of the amendment’s text to a much broader reading, the Slaughter-House majority chose a narrow reading of the Fourteenth Amendment’s reference to the privileges or immunities of national citizenship. The reason is plain: fearful of fully recognizing the Fourteenth Amendment’s drastic changes in the nation’s system of rights-protection and in the relationship of the states to the federal government, the Reconstruction-era Court was willing, for a time, to leave the definition and protection of nearly all rights in the hands of the separate states.

  6. 6

    Bowers v. Hardwick, 478 US 186 (1986).

  7. 7

    Washington v. Glucksberg, 117 S.Ct. 2258 (1997). I was counsel of record in the companion case to Glucksberg, Vacco v. Quill, 117 S.Ct. 2293 (1997), as well as in Bowers v. Hardwick, supra fn. 6.

  8. 8

    See also Laurence H. Tribe and Michael C. Dorf, On Reading the Constitution (Harvard University Press, 1991), p. 57.

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