A Country I Do Not Recognize

by Robert H. Bork

  The second case of 1937 that contributed to the creation and expansion of a constitutional right to privacy was Carolene Products Co. v. United States.46 The issue in the case—the power of Congress to prohibit the interstate transportation of filled milk—is of no interest to the debate over rights or privacy. What makes the case significant is the obiter dictum of Justice Harlan Fiske Stone that was embedded in a mere footnote to the opinion. Confirming that the Court was now willing to defer to the Congress on the propriety of economic and business regulation, it was not quite so willing when it came to personal liberties. In particular, he warned, if legislation is found by the Court to suggest a “prejudice against discrete and insular minorities,” then such legislation can expect a “more searching judicial inquiry.”47 This new approach to due process of law as dealing with personal rather than property rights would still have at its core the problem of judicial arbitrariness as the justices sought to measure the “reasonableness” of the law.

  These new doctrinal strands of the Court’s thinking came together with an institutional vengeance in the privacy cases. The issue that became the point of Griswold v. Connecticut had come to the Court before in Poe v. Ullman, but the Court had declined to reach the merits of the case.48 Yet in the dissent of Justice John Marshall Harlan, it was clear that the doctrine of substantive due process was still lurking just around the doctrinal corner. As he insisted, “the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points . . . [but] is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”49 The split among the justices on this question was clearly revealed two years later—and two years before Griswold—in Ferguson v. Skrupa (1963). In that decision for a unanimous Court, Justice Hugo Black wrote that “[t]here was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy.” But that time had passed. “The doctrine . . . that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.”50 Thus was the state of doctrinal confusion when the issues in Poe came back to the Court for resolution in Griswold.

  In Griswold v. Connecticut the Supreme Court ruled that a Connecticut statute making the use of birth control measures by married couples illegal was a violation of “a right of privacy older than the Bill of Rights—older than our political parties, older than our school system.”51 The problem for the Court was that the law obviously violated no particular provision of the Constitution. It perhaps would not have been surprising if Justice William O. Douglas had rested his majority opinion on the discredited but not completely dead idea of substantive due process, such as in Lochner v. New York;52 but he explicitly chose to “decline that invitation.”53 Instead of exhuming a doctrine many thought best left buried (and since he had joined Black’s opinion in Ferguson two years earlier), Douglas held that the Connecticut law had run afoul of “penumbral rights” that were, in his view, “formed by emanations” from “specific guarantees in the Bill of Rights.”54 This sweeping opinion had been forewarned by Douglas in his dissent in Poe. There he had made clear that in his view “‘due process’ as used in the Fourteenth Amendment includes all of the first eight Amendments . . . [but is not] restricted and confined to them.” The idea of “[l]iberty is a conception that sometimes gains content from the emanations of other specific guarantees.”55 By any measure, this was judicial creativity of unequaled boldness.

  Following Griswold, the Court found that those penumbras were capacious enough constitutionally to protect the right of unmarried couples to use birth control and the right to abortion.56 Because of the foundation of the right to privacy and the understanding of judicial power that had allowed the Court to create it,57 there was never any reason to think that in any meaningful way it had reached “the limit of its logic” with the abortion decision, however politically tumultuous that case would prove to be.58 Even more important to the idea of the right to privacy and its expansion than Roe v. Wade and the cases that came in its wake was the decision of the Court upholding Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey. For there the justices made it very clear how truly limitless was the idea of “liberty” and how great was their own self-proclaimed power to shape it as they pleased, regardless of what the representative institutions of the federal and state governments might think.

  The plurality opinion of Justices Kennedy, O’Connor, and Souter in Casey went far beyond merely upholding Roe. It undertook to establish an understanding of judicial power and constitutional interpretation far more radical than what any earlier court had ever suggested. It was not enough merely to embrace as they did the intellectually rickety structure of substantive due process by noting once again that “a literal reading of the [Due Process] Clause might suggest that it governs only procedures by which a State may deprive persons of liberty.” Such a literal reading would miss the essence of modern notions of judicial power. Indeed, “for at least 105 years, at least since Mugler v. Kansas ... the Clause has been understood to contain a substantive component as well.”59 And the “outer limits of that substantive sphere of liberty” were defined by neither “the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment.”60 The fact was, the boundaries of the due process clause were “not susceptible of expression as a simple rule.” That substantive component of “liberty” depended on nothing besides the “reasoned judgment” of the Court itself.61

  What was most shocking about the Kennedy, O’Connor, and Souter opinion in Casey was the utter disdain it reflected for the idea of popular government. The Court was not simply intended, as Alexander Hamilton said in The Federalist, to be an “intermediate” institution between the people and their government “in order, among other things, to keep the latter within the limits assigned to their authority.”62 It was something far more. Indeed, the essence of judicial power as presented in Casey was that of an institution “invested with the authority to . . . speak before all others for [the people’s] constitutional ideals.”63 The power of the Court to declare such values—and the people’s willingness to acquiesce in those declarations—was to Kennedy, O’Connor, and Souter what gave legitimacy to the people as “a nation dedicated to the rule of law.”64 It was precisely this view of its own power to “speak before all others” for the constitutional ideals of the people that would in time bring the Court to the point of overruling Bowers v. Hardwick (1986) in order to expand ever further the “outer limits of the substantive sphere of liberty” in Lawrence v. Texas.

  The underlying reason that the Court in Lawrence could so easily overrule Bowers v. Hardwick in order to extend the “outer limits” of privacy to include homosexual sodomy was that Bowers itself rested on the same substantive due process foundation that Griswold and its ancestors and heirs shared. Justice Byron White’s majority opinion upholding the power of the states to prohibit homosexuality as a matter of moral choice, viewing it as “immoral and unacceptable,” did not rest on the fact that the Constitution was silent on such matters, thus leaving them to the states.65 Instead, the state statute was valid because such moral prohibitions had “ancient roots.”66 As in Griswold, so also in Bowers: such rights rest on nothing firmer or more certain than that the Court found them to be “so rooted in the traditions and conscience of our people as to be ranked fundamental.”67 All Justice Kennedy had to do in Lawrence was to show that Justice White’s history in Bowers was, at the very least, “not without doubt.”68 It certainl
y was not enough to sustain the “substantive validity” of the law in question.69 Justice Kennedy’s history, he insisted, displayed “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”70 The “ethical and moral principles” that were deeply enough felt by the people of Texas to pass the law at hand were no match for the justices’ confidence in their “own moral code.”71 Such is the judicial advantage of an unwritten constitution of evolving meaning over a written one with fixed meaning.

  The Political Price of Privacy

  From the beginning of the Court’s infatuation with an implicit right to privacy there had been an older tradition of thinking about courts and constitutions, a tradition that stood in opposition to the likes of Justices Douglas and Kennedy. This tradition found expression in dissent throughout the judicial creation of the right to privacy, beginning in Griswold itself when Justice Black indicted the Court’s resurrection of the doctrine of substantive due process “based on subjective considerations of ‘natural justice’” in order to strike down the Connecticut law as simply unacceptable.72 It is not the duty of the Supreme Court, he insisted, “to keep the Constitution in tune with the times.”73 The framers knew there would be need for change and had provided for it through the formal process of amendment. Although he could agree with Justice Potter Stewart’s characterization of the law as “uncommonly silly,”74 that was not grounds enough for the Court to invalidate it.

  Similarly in Roe v. Wade, Justice White derided what the Court had done in expanding the right to privacy as nothing more than “an exercise of raw judicial power . . . an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”75 And to Justice William Rehnquist, the majority decision was more a matter of “judicial legislation than it [was] of a determination of the intent of the drafters of the Fourteenth Amendment.” It was, Rehnquist said, “closely attuned” to the opinion of Justice Peckham in Lochner v. New York.76

  When it came to the Casey decision upholding Roe, Justice Antonin Scalia considered the claim in the opinion by Kennedy, O’Connor, and Souter that it fell to the Court to speak “before all others” for the fundamental constitutional ideals of the people—to be nothing less than a “Nietzschean vision” that had no place in constitutional law.77 Indeed, the decision went beyond even the old line of substantive due process cases. The result was “a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls ‘reasoned judgment’ . . . which turns out to be nothing but philosophical predilection and moral intuition.”78 To Scalia, the lesson of Casey was simple: “The Imperial Judiciary lives.”79

  In both Casey and Lawrence, Justice Scalia emphasized that what is at stake when the Court is “impatient of democratic change” and undertakes to create new constitutional rights is the right of the people to constitutional self-government.80 If, as Justice Kennedy insisted, “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” then “later generations can repeal those laws.” In Scalia’s view (a view shared by Rehnquist and Clarence Thomas), “it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.”81 One need not agree with the moral choices made by the people of a state about abortion or homosexuality to recognize the innate right of the people under the Constitution to make those choices free from judicial intervention based on a contrived constitutional right. As he would put it elsewhere, “[i]t is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges should decide what that is.”82

  This dissenting tradition from Justice Black to Justice Scalia has roots deep in the constitutional history of the United States, and even beyond.83 One of the earliest and most famous refutations of the idea that judges could recur to fundamental principles or natural law in reaching their decisions came from Justice James Iredell against Justice Samuel Chase’s claim in Calder v. Bull in 1798. “If . . . the legislature . . . shall pass a law within the general scope of their constitutional powers,” he wrote, “the court cannot pronounce it void, merely because it is, in their judgment, contrary to the principles of natural justice.” The reason was plain: “The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the court could properly say, in such an event, would be that the legislature possessed of an equal right of opinion, had passed an act which in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”84

  Similarly, both Chief Justice John Marshall and Justice Joseph Story, despite their rare and insignificant flirtations with a realm of rights beyond the textual Constitution, were committed to the idea of the positive law of the Constitution and its representative institutions. For Marshall, the very idea of a written constitution was “the greatest improvement on political institutions.” It was the embodiment of the people’s “original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness.” Those principles once established in a constitution “are deemed fundamental . . . [and] are designed to be permanent.”85 It was not empty rhetoric when he later exhorted his fellow justices to “never forget that it is a constitution we are expounding.”86 And when the argument was made before the Court that the provisions of the first ten amendments to the Constitution applied to the states, Marshall rejected that claim, noting that “[h]ad the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention . . . in plain and intelligible language.” Without that expressed intention, the Court could not so apply them.87 For Marshall, no matter how alluring might be the principles of natural justice, there was no doubt that “intention is the most sacred rule of interpretation” and that “the great duty of a judge who construes an instrument is to find the intention of its makers.”88

  Justice Story was equally clear on these matters. “The first and fundamental rule in the interpretation of all instruments,” he said in introducing his chapter “Rules of Interpretation” in his Commentaries on the Constitution of the United States, “is to construe them according to the sense of the terms and the intention of the parties.”89 Any judicial departure from the “true import and sense of [the Constitution’s] powers” would be a “usurping of the functions of a legislator, and deserting those of an expounder of the law.”90 In Story’s view, the Constitution was to have “a fixed, uniform, permanent construction. It should be . . . not dependent upon the passions or parties of particular times, but the same yesterday, to-day, and forever.”91 And should a Court undertake to be guided by “the rights . . . arising from natural law and justice,” this undertaking would prove “the most formidable instrument of arbitrary power that could well be devised.”92 Story understood constitutions as “instruments of a practical nature”; when it came to interpreting them, he did not think they were “designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research.” The language was to be “expounded in its plain, obvious, and common sense”; there was no place for “any recondite meaning or extraordinary gloss.”93

  This same understanding constituted the foundation of Justice Benjamin Curtis’s dissent to Chief Justice Taney’s opinion in Dred Scott. Although Taney insisted that his opinion was based on the original meaning and intention of the Constitution “when it came from the hands of its framers and was voted on and adopted by the people of the United States,”94 Justice Curtis thought otherwise. He knew Taney’s effort to be a blatant and intentional misconstruction of the Co
nstitution “upon reasons purely political.”95 In Curtis’s view, “when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”96 Such an interpretation means the demise of “republican government.”97

  It was this question of the legitimate bounds of republican government under a federal constitution that also concerned Justice Oliver Wendell Holmes over the course of the first era of substantive due process, at least when it came to striking down economic legislation. He had grave and nagging doubts about the “vague contours” of the idea of substantive due process as the grounds for invalidating statutes rather than explicit constitutional provisions.98 He saw danger in “the ever increasing scope given to the Fourteenth Amendment in cutting down . . . the constitutional rights of the states.” He could not believe, he said, that “the amendment was intended to give [the Court] carte blanche to embody [the justices’] economic and moral beliefs in its prohibitions.” As things stood, it seemed to Holmes that the sky was the limit to what the Court might choose to do.99