A Country I Do Not Recognize

by Robert H. Bork

99. Grutter v. Bollinger, 123 S. Ct. 2325 (2003).

  100. 391 U.S. 430 (1968).

  101. Keyes v. School District, 413 U.S. 189 (1973).

  102. For a full discussion see Lino A. Graglia, Disaster by Decree: The Supreme Court Decisions on Race and the Schools (1976).

  103. See Lino A. Graglia, “When Honesty Is ‘Simply . . . Impractical’ for the Supreme Court: How the Constitution Came to Require Busing for School Racial Balance,” 85 Mich. L. Rev. 1193 (1987).

  104. 110 Cong. Rec. 6552 (1964).

  105. 42 U.S.C. sec.202000c (2003), 78 Stat. 246.

  106. 42 U.S.C. secs. 2000c-6(a)(2), 2000c-9 (2003), 78 Stat. 248, 249.

  107. 110 Cong. Rec. 12717 (1964).

  108. 402 U.S. 1 (1971).

  109. “Busing of School Children, Hearings Before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate,” 93d Cong. 2d Sess. [1974], 42–43.

  110. 438 U.S. 265 (1978).

  111. 401 U.S. 424 (1971).

  112. Senators Case and Clark, co-managers of the bill that became Title VII, stated in an authoritative memorandum that Title VII “expressly protects the employer’s right to insist that any prospective applicant, Negro or white, must meet the applicable job qualifications,” 110 Cong. No. 7247 (1964), and in an earlier memorandum, “There is no requirement in Title VII that the employer abandon bona fide qualification tests where . . . members of some groups are able to perform better on those tests than members of other groups.” 110 Cong. Rec. 7213 (1964).

  113. Leon Jaworski, The Right and the Power 279 (1976).

  114. See, e.g., Cooper v. Aaron, 358 U.S. 1 (1958) (“the federal judiciary is supreme in the exposition of the Constitution,” and the Court’s interpretation of the Constitution “is the supreme law of the land”).

  115. Quoted in Jesse H. Choper et al., The American Constitution 1, 8 (9th ed., 2001).

  116. Supra, p. 1.

  117. In carrying out a single federal district judge’s orders, billions of dollars were spent on Kansas City, Missouri’s school system alone. See Missouri v. Jenkins, 515 U.S. 70 (1995). How much would a federal judge have to order spent, one must wonder, before he met resistance—ten billion, one hundred billion?

  118. 116 Cong. Rec. 11, 913 (1970).

  119. U.S. Const. art. III, sec.202.

  120. And the Court has not always permitted it, even though the power has been very rarely used. See United States v. Klein, 80 U.S. 128 (1972).

  121. U.S. Const. art. V.

  122. See, e.g., Charles Fairman, Reconstruction and Reunion: 1864–1888, Part One 7 (1971).

  123. Strauder v. West Virginia, 100 U.S. 303 (1879).

  — 2 —

  The Perverse Paradox of Privacy

  Gary L. McDowell

  It is . . . true that upon no legal principle can an interpretation be supported, which ignores the meaning universally accorded to a word or clause for centuries, and the meaning which must, therefore, have been intended by those who inserted it in the constitution. It is perhaps well to bear this in mind at a time where there is a manifest tendency to regard constitutional prohibitions as a panacea for moral and political evils, to look upon courts of law, as distinguished from legislatures, as the only real protectors of individual rights, and to trust to the courts for remedies for evils resulting entirely from a failure to attend to political duties,—at a time, that is to say, when there is danger of loose and unhistorical constitutional interpretation.

  —Charles E. Shattuck, Harvard Law Review

  The most recent effort of the Supreme Court of the United States to define the judicially created constitutional right to privacy has demonstrated once again why that contrived right poses such a pronounced threat to constitutional self-government. In writing for the majority in Lawrence v. Texas (2003) to overrule a case of only seventeen years’ standing that allowed the states to prohibit homosexual sodomy, Justice Anthony Kennedy insisted that the idea of liberty in the Constitution’s due process clauses is not limited to protecting individuals from “unwarranted governmental intrusions into a dwelling or other private places” but has “transcendent dimensions” of a more moral sort.1 Properly understood, this notion of liberty “presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct,” whether those are mentioned in the Constitution or not.2 Indeed, had those who originally drafted “the Due Process Clauses of the Fifth and Fourteenth Amendments known the components of liberty in its manifold possibilities, they might have been more specific.” But they could not have known since “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” The essence of the Constitution for Justice Kennedy and his ilk is that it falls to “persons in every generation [to] invoke its principles in their own search for greater freedom.”3 Put more simply, there is nothing permanent in the Constitution, no fundamental, unalterable principles; its meaning comes only from the changing moral views of successive generations of justices.

  Justice Kennedy’s understanding of the changing metaphysical contours of the right of privacy was drawn in large part from obiter dictum in Planned Parenthood of Southeastern Pennsylvania v. Casey.4 In that opinion upholding the abortion decision of Roe v. Wade (1973), written by Kennedy along with Justices David Souter and Sandra Day O’Connor, the Court had insisted that lying at the heart of the idea of liberty provided in the Constitution “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”5 This was something of a crude echo of a similar dictum by Justice Louis Brandeis in his dissent in Olmstead v. United States (1928), in which he had rhapsodically insisted that the framers of the Constitution “undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure, and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.”6 Because of these views, Brandeis insisted, the framers had “conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.”7

  The problem is that this “most comprehensive of rights,” the judicially discovered “transcendent dimensions” of the meaning of liberty, when embraced by the Court as a ground for judgment, is utterly at odds with the very possibility of constitutional self-government. Such understandings can only be the result of what James Madison once termed “constructive ingenuity,”8 an ingenuity that seeks to supplant the textual Constitution with the justices’ “own moral code,” their protests to the contrary notwithstanding.9

  The paradox of the Supreme Court’s constructive ingenuity when it comes to the privacy right is that it is defended in the name of protecting new and often unheard of individual liberties from legitimately elected majorities who have passed “laws representing essentially moral choices.”10 But by so restricting the powers of the governments (and this is almost always a restriction on the powers of the governments of the several states) to make such moral choices part of the law, the Court has greatly limited the most important right of individuals, the right to be self-governing, a right that has its roots in the very moral foundations of American republicanism.

  The essence of self-government is the right of the people to engage in public deliberation over what is right and what is wrong and to decide how those rights and wrongs are translated into what is deemed legal and illegal. In the end the elevation of a judicially created notion of privacy that can be used to trump nearly every conceivable collective moral judgment made by the people undermines constitutionalism in any meaningful sense. The history alone of the development of the right to privacy exposes its illegitimacy as a matter of constitutional law and demonstrates the danger it poses to t
hat most basic of American political values, the rule of law. For the history shows that with the right to privacy the stability and certainty that the rule of law requires is replaced by political uncertainty and judicial arbitrariness.

  A Brief History of a Bad Idea

  Although the right to privacy as a matter of constitutional law is of rather recent vintage,11 the roots of the idea go back much further. Usually, it is understood to have begun with a pioneering law review article, “The Right to Privacy,” by Samuel Warren and Louis Brandeis, which appeared in the Harvard Law Review in 1890.12 In fact, there was a longer history of a developing tradition of a privacy right of which that essay was essentially a part.13 For understanding the current constitutional right of privacy, the most important fact about the argument Warren and Brandeis presented was that it did not advocate expanding the Constitution to protect privacy. It was a more modest effort to create an action in tort law to enable the great and the good to sue for damages when beset by the “continuous ordeal of the camera” or relentless “kodakers” who made the age of yellow journalism all that it could be.14 Their objective was to “set against the newspapers’ jealously guarded first amendment rights a countervailing right on the part of individuals, an explicit ‘right to privacy.’”15

  Warren and Brandeis understood that for such a right to be embraced by “the common law, in its eternal youth,” they would have to establish a principled ground for it. Thus their basic argument was that “[p]olitical, social, and economic changes entail the recognition of new rights ... to meet the demands of society.” In the instant case, those changed times demanded “a general right to privacy for thoughts, emotions, and sensations.” By their common law calculus, the “general object in view [was] to protect the privacy of private life” including the “life, habits, acts, and relations of an individual.”16 The right urged by Warren and Brandeis as a matter of tort law made its way into American law nearly from the beginning, and by the 1960s was widely accepted.17 But it would also prove to be an idea that would lie dormant and be brought to constitutional life in a way that perhaps neither Warren nor Brandeis might have expected.

  Although their argument did not itself contribute to the doctrinal basis of a constitutional right to privacy, Warren and Brandeis were writing at precisely the same moment as were others whose arguments would in time come to support the expansion of the Constitution to include an unwritten right to privacy. The year 1890 was the same year that the Supreme Court inched closer to formally creating the doctrine of substantive due process by which it would invalidate all manner of state laws in the name of economic liberty; for the first time the Court held that a state regulation of railroad rates violated the due process clause of the Fourteenth Amendment. Writing for a divided Court, Justice Samuel Blatchford held that the “reasonableness” of such regulations was “eminently a question for judicial investigation, requiring due process of law for its determination.”18 Perhaps the most striking coincidence was that in the same volume of the Harvard Law Review in which Warren and Brandeis’s article “The “Right to Privacy” appeared, another article undertook to sound a warning about the dangers of judges manipulating the meaning of constitutional language—especially the word “liberty” in the due process clauses—through “loose and unhistorical . . . interpretation.”19

  The creation of substantive due process was a development of an older tradition in which some judges were willing to seek meaning beyond the text of the written Constitution. In the earliest days of the republic, one might see an appeal made now and then to natural law or principles of natural justice.20 Later, the contracts clause of the Constitution provided a way for the Court to find principled meaning in the text that seemed to many to go far beyond the text.21 These early examples stand out in large measure because there were so few judicial forays beyond the text and arguable intention of the Constitution. In a sense, the generation that knew and understood best the natural law theories of the time saw no need to seek in them the grounds of their constitutional decisions.22 They most assuredly did not see the due process clause of the Fifth Amendment as a provision pregnant with higher law principles awaiting judicial invocation. Indeed, they understood that clause and the concept of due process as it had been understood for hundreds of years: “The words due process of law have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature.”23

  It is more than slightly ironic that the doctrine that came to be a primary vehicle for the Supreme Court of the United States to invalidate state laws with which the justices disagreed would have its first appearance in a state court; it is perhaps even more ironic that the doctrine appeared in the same state in which Alexander Hamilton had explained the limits of due process of law so clearly, and that the doctrine was created to stem the tide of judicial reliance on “theories alleged to be found in natural reason and inalienable rights.”24 But that was the situation in 1856, in Wynehamer v. New York, when a court for the first time held that legislation could be invalidated if its substantive provisions conflicted with what was demanded by the “due process of law.” The state law in question that sought to prohibit liquor was too arbitrary and unreasonable to stand; but it would fall not because it was “contrary to natural equity or justice” or violated “any fanciful theory of higher law or first principles of natural rights outside the constitution.”25 It was invalid, the court ruled, because such laws violated the clear text of the state constitution; they were against what was demanded by due process of law.

  At the federal level, the first flirtation by the Supreme Court with the idea of substantive due process came the year after Wynehamer in the case of Dred Scott v. Sandford.26 In Chief Justice Roger Taney’s view, “the rights of property are united with the rights of the person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and [sic] property, without due process of law.” Such an act of Congress that deprived Mr. Sandford of his property simply because he had taken his slave into a particular territory “could hardly be dignified with the name of due process of law.”27 With the end of the Civil War and the adoption of the Fourteenth Amendment, this nascent notion would find a new and expansive constitutional field.

  At first, the Supreme Court resisted the temptation to infuse the due process clause of the Fourteenth Amendment with any substantive content. When they were first asked to do so, they declined, noting that the regulation of slaughterhouses in New Orleans did not constitute the sort of “deprivation of property within the meaning of that provision.”28 In a series of cases from 1873 to 1890, the Court continued to deny that any doctrine of substantive due process could be derived from the Constitution.29 But there were ominous stirrings. As the personnel of the Court was changing, there was an emerging willingness on the part of some justices to see more in the due process clause.30

  Just how far those new inclinations extended was made clear in Chicago, Milwaukee, and St. Paul Railway Co. v. Minnesota when the Court for the first time invalidated the rates set by a state regulatory commission as a deprivation of property without due process of law.31 Then four years later the Court asserted its power to declare the enactments of state legislatures invalid because of the due process clause;32 in another four years they actually did so.33 By 1896, Justice Rufus Peckham made clear how secure the revolution in the due process of law had become. “The liberty mentioned in the [Fourteenth] Amendment means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties.”34

  The doctrine of substantive due process came into full flower in 1905 with Lochner v. New York.35 The standard for constitutional adjudication under the due process clause was now whether the law in question was “a fair, reasonable, and app
ropriate exercise of the police power of the state, or [. . .] an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty.”36 The protection of economic liberties under the rubric of “liberty of contract” under the due process clause was finally abandoned only in 1937 in West Coast Hotel v. Parrish.37 Between Lochner and West Coast Hotel, the Court used the doctrine of substantive due process to invalidate laws that ranged from providing minimum wages for women to prohibiting the teaching of foreign languages to denying parents the right to send their children to parochial schools.38 Along the way, seemingly just for good measure, the Court also announced that the Fourteenth Amendment could be used to apply the First Amendment to the states.39 In each case, the Court had openly engaged in the “loose and unhistorical . . . interpretation” that was seen to be such a danger when the justices had first begun their construction of the idea that due process of law was not merely a procedural concern but had a substantive core that allowed judges to invalidate legislation.40 Although the Court in West Coast Hotel declined to invalidate a state law under the doctrine of substantive due process, it also pointedly refused to annihilate the doctrine itself, leaving it to return another day.41

  In many ways 1937 would prove fundamentally important for the foundation of a right to privacy whose establishment was nearly thirty years in the future. In two decisions that year the Supreme Court established new doctrines that eventually served to allow the judicial creativity of Griswold v. Connecticut (1965). The first was Palko v. Connecticut in which Justice Benjamin Cardozo addressed the question whether the due process clause of the Fourteenth Amendment incorporated the Bill of Rights and made those provisions applicable to the states.42 In Cardozo’s view, all the provisions of the Bill of Rights were not created equal. Only those that were “of the very essence of a scheme of ordered liberty” should be applied to the states through the due process clause.43 The test, said Cardozo, was whether the rights in question were those “implicit in the concept of ordered liberty” and “so rooted in the traditions and conscience of our people as to be ranked fundamental.”44 As a general matter, those more procedural rights (such as the protection against double jeopardy, the issue in the case at hand) were not equal to such rights as “freedom of thought and speech”—rights Cardozo insisted formed “the matrix, the indispensable condition of nearly every other form of freedom.”45 The two main contributions of Palko were, first, the idea that all rights are not equal, that there is a hierarchy; and second, that it is up to the justices to determine which rights are fundamental and apply to the states and which ones are not. The old substantive due process standard of “reasonableness” was left alive and well.