Part 1 | Part 2 | Part 3 [to be posted]
In part 1, I traced the evolution of “substantive due process” jurisprudence under which the Supreme Court protected a variety of unenumerated rights, both economic and personal, through the Due Process Clause of the Fifth and Fourteenth Amendments.
Many of the unenumerated rights that had been protected by the much-maligned Lochner-era Court began to fall by the wayside in the face of shifting cultural beliefs about the necessity of greater government intervention, especially in the economic realm. The Great Depression made it much harder, in the eyes of the public and the intellectuals, to defend the liberty of contract associated with the Lochner case. Put most simply, the burden of proof of constitutionality underwent a significant change from what libertarian legal scholar Randy Barnett calls a “presumption of liberty” to a presumption of constitutionality.
Until the New Deal era, the burden of proof lay on the state to demonstrate that a challenged law was within the defined powers of the legislature and did not violate the presumed, and broadly read, liberties of the people, including rights not explicitly enumerated in the Constitution. Since then, the presumption is that laws passed by the democratic process (assuming “due process of law”) are constitutional unless the challengers can demonstrate that such a law violates the rights enumerated in the Constitution or those that have been established by the Court to be “fundamental” even if not enumerated. The result has been the gradual extension of state power and erosion of liberties, except in those areas that are explicitly enumerated (such as the Bill of Rights) or that the Court has chosen to define as fundamental (e.g., privacy).
The key to this reversal of the constitutional burden of proof is found in United States v. Carolene Products Company (1938). In several decisions earlier in the decade, the Court had begun to undo the Lochner approach of putting the burden of proof on the state to show that legislation was “necessary and proper,” was explicitly authorized by the Constitution, and did not override accepted unenumerated rights. By West Coast Hotel Co. v. Parrish (1937), the reversal was largely complete, with the Court appearing to defer totally to the democratic process to a degree that the notion of judicial review itself might be rendered superfluous. In Carolene Products, the Court pulled back from that precipice and began to define the terms under which it would proceed for a number of decades.
The relevant passage is the famous “Footnote Four.” In the text of Justice Harlan Fiske Stone’s majority decision the Court argued that the legal restrictions on the market for the milk substitute at the center of the case should be presumed to be constitutional “unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” Stone then qualified that presumption of constitutionality in the first part of Footnote Four:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.
As long as the legislature could construct an argument that the legislation in question was reasonably perceived to be able to solve some problem (and that it did not violate one of the enumerated fundamental rights noted in Footnote Four), then it would pass the test of constitutionality. That gave, if not carte blanche, at the very least a wide latitude to the legislature and substantially weakened the grounds from which the Court could overrule legislation.
The Footnote Four approach stood for more than 20 years until it was attenuated somewhat in Griswold v. Connecticut (1965), which dealt with a state law making the sale of contraceptives illegal, for both the parties to the exchange and anyone who assisted in the exchange. The law was challenged and the Court agreed that it was unconstitutional. What was important about the case was the way in which it reached that conclusion. Justice William O. Douglas had to find a way to avoid going back to Lochner-type arguments, yet still find protection for activities that were not explicitly enumerated as rights in the Bill of Rights or otherwise fit the criteria laid out in Footnote Four. The Court concluded that the law violated the “right to privacy,” which, of course, is found nowhere in the text of the Constitution. Interesting to note, the Court did so by relying on the decisions in Meyer and Pierce (discussed in part 1) as precedent for such an unenumerated right.
The problem, therefore, was how to ground that right constitutionally without going back to the Fourteenth Amendment, which would both violate the procedure laid out in Footnote Four and open the door to the unenumerated economic rights of the Lochner era that were overturned during the New Deal. Douglas’s solution was to find the right to privacy in the “penumbras, formed by emanations” of the various rights protected in the Bill of Rights. By the logic of Footnote Four, it was not a right deserving of presumptive protection and the high burden of proof on the state that would accompany it. Nonetheless, the Court had established the right to privacy, and 27 years later in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court would solidify it by referring to a “realm of personal liberty which the government may not enter.” It again referred to a number of cases, including Meyer and Pierce, to substantiate that view.
Barnett argues that Casey “exemplifies the current approach to constitutional rights.” In this approach, which he calls “Footnote Four-Plus,” it is the Court that decides which unenumerated rights in the Constitution are worthy of being declared “fundamental rights” and getting the higher level of protection demarcated in Footnote Four. Generally, the liberties associated with noneconomic activities have received the protection of being “fundamental,” while economic ones have not.
The Footnote Four-Plus approach has allowed the Court to pick and choose among liberties guided, presumably, by any particular set of justices’ sense of which rights are deserving of such protection at the particular time in question. Although this approach is better than the original Footnote Four jurisprudence, which did not recognize unenumerated rights at all, scholars such as Barnett argue it suffers mightily from the appearance of capriciousness.
That perception of capriciousness may well lie at the center of debates over “judicial activism,” in the sense that courts that define those liberties associated with liberalism or conservatism as fundamental cause the other group to charge “judicial activism.” When the Court defines the liberties a group likes as fundamental, then the Court is just perceived to be doing its job in preventing legislative overreach. With Footnote Four and the stigma of the Lochner era having pushed the Court down a path where it has to protect noneconomic unenumerated rights in a way rightly seen as capricious, it is no surprise that the Supreme Court has become a lightning rod in the culture wars, especially when the approach taken in Griswold became the foundation for Roe v. Wade and the rest of the Court’s abortion jurisprudence.
In part 3, I will suggest a way out of this dilemma.
This article was originally published in the December 2014 edition of Future of Freedom.