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?”
Black’s answer is not “to throw up your hands and say that no action is possible,” but “to take the Ninth Amendment as a command to use any rational methods available to the art of law…to discover what it is you are to protect.” Black confesses that deciding both which methods to use and where those methods lead in any given case presents “a pack of troubles.” But, Black emphasizes, “these are the troubles not of the Ninth Amendment alone, but of law itself.”
Black points out, for example, that the common-law tradition embraces the notion of an ever-growing corpus of law; legal questions are resolved in large part by “arguing from the established to the not yet established, weighing similarities and differences.” Our constitutional jurisprudence, Black notes, has made considerable use of this method; judges are willing to ask whether an armband is “speech,” or whether the Double Jeopardy Clause applies when the punishment at issue is not literally the taking of “life or limb.” Black also notes the time-tested practice of giving “due attention to the sound requirements arising out of social or political structures and relations.” Such a process of reason is used in constitutional law, for example, to derive the unenumerated right of interstate travel.
But Black suggests that human rights law calls for another method, one that might be called aspirational. It is a method attuned not simply to keeping legal rules consistent with one another or with social and political institutions, but to approaching “higher goals.” To ascertain which rights the Ninth Amendment protects, Black would consult “the noblest of concepts to which our nation is committed”; and for him “the earliest and best-attested source for such concepts” is, of course, the Declaration of Independence. Accordingly, Black concentrates on the situation that obtained when the Ninth Amendment, drafted in 1789, referred to “rights…retained by the people,” and asks, “What ‘rights’ could ‘the people’ be thought to have had before the enactment of this Amendment” if not the “inalienable” rights that the Declaration just thirteen years earlier had declared belonged to all? For Black, then, the “rights…retained by the people” surely must include the Declaration’s right to the pursuit of happiness.
The third national “commitment” on which Black relies is the Fourteenth Amendment—in particular, the first two clauses. The first, the Citizenship Clause, provides that “all persons born or naturalized in the United States …are citizens of the United States and of the State wherein they reside.” The second, the Privileges or Immunities Clause, instructs that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” These two provisions, as Black reads them, “form a complex whole.”
With respect to the Citizenship Clause, Black emphasizes the remarkable, but often forgotten, effect of this provision in making state citizenship a matter of federal law. Every United States citizen residing within a state is, by force of federal constitutional law, a citizen of that state; the state has nothing to say about the matter. And the federal rights that go with such state citizenship are necessarily governed by national law. As Black points out, were state citizenship not to carry such substantive rights by virtue of the Citizenship Clause, then “the Fourteenth Amendment went to all that trouble just to do a vain thing—conferring a mere titular ‘status’ of state citizenship that created no substantive consequences.”
As to which rights state citizenship confers under the Fourteenth Amendment, Black turns once again to the Declaration of Independence. Relying on an 1823 judicial opinion discussing the Constitution’s other reference, in Article IV (dealing with interstate relations), to “Privileges” and “Immunities” of citizenship,9 Black argues that “‘citizenship’ in a political body within the American system implies that that body must treat you in accordance with the Declaration,” from which he concludes that “the state citizenship subclause of Section 1 of the Fourteenth Amendment carries within itself the command that the States treat their citizens (bindingly made such by the Amendment) in accordance with the privileges and immunities of the Declaration.”
Closely related to this conclusion is Black’s reading of the Fourteenth Amendment’s Privileges or Immunities Clause. He sees that clause as “bridging the state and the national obligation to ‘secure’ human rights.” National citizenship carries certain “privileges” and “immunities,” which the states may not abridge. Black describes the rights thereby protected as part of “an open-ended series” and, once again, asserts that they are “the very ‘rights’ named in the Declaration of Independence.”
Black acknowledges, as he must, that the Slaughter-House Cases of 1873 stand squarely in the way of his reading of the Fourteenth Amendment. In that decision, as we have noted, the Court limited the privileges and immunities protected by the Fourteenth Amendment essentially to a sparse set of rights that were in any event protected before the passage of the amendment by other constitutional provisions. Like others before him, however, Black easily demolishes the reasoning of the 5-4 majority opinion in that case, calling its result “probably the worst holding, in its effect on human rights, ever uttered by the Supreme Court.” Black argues that the Court’s decision not only rendered the Privileges or Immunities Clause largely meaningless. It also stripped the Fourteenth Amendment’s state citizenship provision of much of its force. Under the Slaughter-House Cases, Black laments, the states have the power to define what rights state citizenship carries, and those privileges of citizenship are “changeable or destructible at the will of each State.”
A particular strength of Black’s argument in A New Birth of Freedom is the link he makes between the Privileges or Immunities Clause of the Fourteenth Amendment and its neighbor, the Citizenship Clause. If the Fourteenth Amendment’s guarantee of state citizenship is to have any meaning worth the trouble of a constitutional amendment, that citizenship must carry substantive guarantees. Whereas use of the Due Process Clause to protect substantive rights has been a source of understandable intellectual embarrassment, Black shows that the language and structure of the Citizenship and Privileges or Immunities Clauses, taken together, strongly support federal protection of fundamental human rights.
With respect to unenumerated rights, two primary criticisms have been addressed to the concept of “substantive due process.” First, as we have noted, many critics (including Black in this book) have emphasized the seeming incoherence of relying on a purely procedural provision—the Due Process Clause—for substantive protection of rights and liberties. Second, some critics (but not Black) have found fault in the apparent lack of specific guidelines to define unenumerated rights, and the consequent need to rely on the unfettered intuitions of judges to decide which rights are fundamental and thus entitled to special protection. Black’s reliance on provisions other than the Due Process Clause would render the first type of criticism irrelevant. And Black shows that, under the Ninth Amendment, the second line of criticism is essentially a complaint about the Constitution itself.
To the degree that Black joins in the familiar denunciation of substantive due process as textually untenable, his argument may be somewhat overstated. Before the Fourteenth Amendment, the Constitution’s first Due Process Clause—contained in the Fifth Amendment and applicable to the federal government rather than to the states—had been read as placing at least some substantive limits on federal legislation. In an 1856 case, the Supreme Court had held that due process “is a restraint on the legislative as well as on the executive and judicial powers of the government,”10 and in 1857, in its infamous decision in Dred Scott v. Sandford,11 the Court construed the Fifth Amendment’s due process requirement as limiting Congress’s legislative power to terminate a slaveowner’s relationship with his “property.” Although Dred Scott’s particular conclusion about slavery was rightfully undone by the post- Civil War constitutional amendments, it may be that the Fourteenth Amendment was enacted on the unspoken understanding, reflected by Dred Scott, that the very words “due process of law” imply some substantive limits on what counts as “law.” In 1884, for example, the Supreme Court held that those words exclude “as not due process of law…special, partial and arbitrary exertions of power under the forms of legislation.”12 Today some of us may find it disconcerting to hear more than a requirement of procedural fairness in the phrase “due process of law.” But an earlier age might have focused as much on the words “of law” as on the word “process.”
Such historical arguments, however, are unlikely to convince judges or others to advocate enthusiastically, rather than to accept hesitantly, the use of substantive due process to protect such unenumerated rights as the right to end a pregnancy, or the right to decide how to bring up one’s own children. Too great are the disgrace of the Dred Scott decision and the shame of a later, now-repudiated group of cases holding that “due process” was violated by laws regulating hours of work, wages, and prices.13 Whenever invoked to protect unenumerated rights, substantive due process has, and seems destined to retain, the look and feel of illegitimacy. Charles Black is thus on solid ground in urgently seeking other textual bases for the constitutional protection of human rights. He is convincing when he attacks the Slaughter-House Cases—the main obstacle to relying on the Privileges or Immunities Clause for that purpose. Unlike previous arguments against the Slaughter-House Cases, by writers who often simply look back with regret, as though the decision cannot be changed, Black’s arguments are sharp and forward-looking. His book speaks with the conviction that we need not remain shackled by the grand mistake of that 1873 decision; something can be done.
As for the second kind of criticism—the argument that protecting unenumerated rights gives judges too much discretion to pick and choose which rights to protect—Black’s response is that the Constitution leaves no other option. He makes a spirited and convincing defense of the place of judicial review in our constitutional system. Clearly the courts are empowered to invalidate governmental acts that violate rights protected by the Constitution—at least if those rights are expressly set forth. And, Black argues, the same must be true for unenumerated rights if we are to take seriously the Ninth Amendment’s command that the enumeration of “certain rights” not be “construed to deny or disparage others.” However troubling it may be to some that the courts have the power to identify and enforce such textually unspecified rights, that power is as appropriate with respect to unenumerated rights as it is with respect to those that are spelled out in the Constitution.
One might agree that the Ninth Amendment should have enforceable meaning yet also treat the amendment’s reference to other rights “retained by the people” as pointing to some fixed set of rights, presumably to be exhumed by historical research. But considerably more plausible, given the Ninth Amendment’s origins and context, is Black’s reading of its reference to “rights retained” as including at least the Declaration’s open-ended proclamation of rights—such as the right to the pursuit of happiness, which plainly is not a static concept but one which admits of considerable change over the years.
The Declaration itself provides few if any clues about what the obviously fuzzy-sounding right to the pursuit of happiness might include—and what it might exclude—and Black provides only a few illustrations. Noting the unenumerated rights the Court has recognized in controversial cases, Black claims that using the right to the pursuit of happiness as “a prime…foundation” “would easily explain most of the cases as to which difficulty has been felt.” He cites as an example the case in which the Court proclaimed a right to make choices concerning family living arrangements, but came within one vote of upholding a city’s power to force a grandmother to evict one of her two grandsons because they were not brothers but cousins.14 Black also insists that his approach exposes the constitutional vice of measures discriminating against racial minorities, women, or homosexuals. But Black is short on details, and the reader is left wondering what a judge should ask in any particular case. Rather than exploring issues recently before the courts, such as whether terminally ill patients have a right to physician assistance in ending their lives, Black illustrates his approach by briefly explaining, for example, that it “would make an open-and-shut case” for “the right to listen to music of your choice.”
Unfortunately, Black’s most extended illustration of where the pursuit-of-happiness approach would lead seems especially vulnerable. He devotes an entire chapter to the problem-filled claim that the Constitution requires Congress “to ensure…a decent livelihood for all,” a claim Black supports by citing the Declaration’s statement that the purpose of government is to “secure” such rights as the pursuit of happiness, which Black defines as the right of a citizen “to be in a situation where that pursuit has some reasonable and continually refreshed chance of moving toward its goal.” But the right to the pursuit of happiness envisioned in the Declaration is most plausibly limited to a right to be left alone by the government in certain circumstances, rather than a right to have government fund or otherwise assist in any given pursuit or project.
Black’s general approach, of course, need not succeed or fail with this one disappointing example, but the example does suggest that his approach does little to simplify the task of determining which fundamental rights the Constitution protects. His essay should be read mainly as a plea for changing the terms of constitutional debate so as to lift a significant burden from those who see the Constitution as vigorously protecting fundamental unenumerated rights. Such friends of constitutionally protected rights, Black argues persuasively, need not feel perpetually defensive; that the Constitution protects unenumerated rights should be accepted as axiomatic.
If we accept that axiom, the standard arguments against broad protection of rights—arguments claiming that judges should not be allowed to “manipulate” such general concepts as “privileges or immunities” or “the pursuit of happiness”—lose much of their force. For it is clear that even far more specific legal concepts, such as freedom of speech or religion or freedom from unreasonable searches and seizures, are also susceptible to judicial “manipulation” through interpretation that is more imaginative than it is convincing. In recognizing rights, our Constitution invariably uses language that requires judicial exposition; any argument that “unenumerated” rights should be treated differently runs afoul of the Ninth Amendment’s command.
At the very least, Charles Black’s return to these basic issues is refreshing. Even those who feel uneasy about the prospect of judges asking what “the pursuit of happiness” requires may agree with Black’s arguments that the Privileges or Immunities Clause should be revived and the Ninth Amendment revitalized to provide a more secure foundation for the protection of human rights—enumerated and unenumerated alike. Black may help to liberate courts and lawyers—who have made little headway in defending human rights since the mid-1970s—from their preoccupations with finding variations on currently accepted doctrines. It should inspire them instead to address the deeper possibilities that are posed by the founding documents of our Republic—possibilities that Black rightly believes have been too long ignored.
September 24, 1998
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. ↩
Palko v. Connecticut, 302 US 319, 326 (1937). ↩
Palko v. Connecticut at p. 325. ↩
John H. Ely, Democracy and Distrust (Harvard University Press, 1980), p. 18. ↩
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.” ↩
Bowers v. Hardwick, 478 US 186 (1986). ↩
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. ↩
See also Laurence H. Tribe and Michael C. Dorf, On Reading the Constitution (Harvard University Press, 1991), p. 57. ↩
Corfield v. Coryell, 6 F.Cas. 546 (C.C.E.D.Pa. 1823) (Washington, J.). ↩
Murray’s Lessee v. Hoboken Land & Improvement Co., 59 US (18 How.) 272, 276 (1856). ↩
60 US (19 How.) 393 (1857). ↩
Hurtado v. California, 110 US 516, 536 (1884). ↩
See, e.g., Lochner v. New York, 198 US 45 (1905). ↩
Moore v. East Cleveland, 431 US 494 (1977). ↩