THE GRISWOLD DIAGRAMS:
TOWARD A UNIFIED THEORY OF
CONSTITUTIONAL RIGHTS
Stephen Kanter*
INTRODUCTION
Four decades after Griswold v. Connecticut,1 the fundamental
controversy regarding the exercise of judicial review by the Supreme
Court in our constitutional system remains the legitimacy of the Court’s
practice of deriving individual rights that are not textually explicit, and
enforcing those rights against majoritarian legislative enactment. Since
1973, when Roe v. Wade2 was decided, much scholarly, judicial and
public attention concerning fundamental rights has naturally focused on
the abortion decisions. Unfortunately, the controversial and often
outcome-oriented nature of the abortion discussion has contributed
more heat than light, and obscured important threshold analytical
questions.
This Article starts from the proposition that a more interesting and
fruitful approach is to take a step back from the abortion issue, and
return to the basic underlying question of what, if any, are the proper
constitutional theories, sources, and analytical methods for the
derivation of individual rights by the Court in situations where the
textual paternity of the claimed rights is unclear. The objective is to
develop and propose a viable theoretical model as a critical first
component of a workable and comprehensive set of analytical tools for
the Court to use in assessing claims for fundamental individual rights.
The Article begins with a careful look at various analytical
approaches for finding fundamental rights from the different opinions in
Griswold,3 and then evaluates several other approaches that have been
* Professor of Law (Dean 1986-1994), Lewis and Clark Law School, Portland, Oregon; S.B.
1968, Massachusetts Institute of Technology; J.D. 1971, Yale Law School. I would like to thank
my students, Nathan Carter and Blerina Kotori, for their helpful research assistance.
1 381 U.S. 479 (1965) (holding unconstitutional Connecticut statutes criminalizing the use of
contraceptives).
2 410 U.S. 113 (1973) (holding unconstitutional Texas criminal anti-abortion statutes).
3 Justice Douglas delivered the opinion of the Court, for himself, Chief Justice Warren and
Justices Brennan, Clark and Goldberg. Griswold, 381 U.S. at 479-86. Justice Goldberg, joined by
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suggested elsewhere. The theoretical validity of each analytical
framework is considered separate from the quality of the application of
that framework by its proponents. This abstraction, and a companion
diagrammatic representation of each framework,4 serves to focus
attention on the merits or demerits of the general frameworks
themselves. After extracting what is valid from these approaches, the
Article constructs and proposes a new composite theoretical model for
the courts to use in fundamental rights cases.
The ultimate utility of the proposed model depends in part on two
significant problems of implementation. These are: (1) the problem of
identifying the proper sources of law and methods of interpretation that
courts should use in applying the model and finding particular rights;
and (2) the appropriate judicial mechanisms of enforcement—including
sensible prudential and structural limitations on such enforcement—for
those fundamental rights that legitimately are developed by courts from
appropriate source materials. These thorny implementation issues are
addressed gingerly here, and only to the extent that they help to explain
the proposed model. The primary goal is to engender debate and
refinement of the proposed model. I am hopeful that the outcome of
this debate will be a workable consensus for a model that is usable by
the courts. Once this is accomplished, there will need to be a serious
and more detailed exploration of sources, methods and institutional
considerations in individual cases. The further devil (and hopefully the
spare angel) is, as always, in these details.
Part I of this Article discusses the Griswold majority opinion. Part
I.A uses the language of penumbras relied upon by Justice Douglas, and
demonstrates that there is legitimacy and vitality to this theory, even
though it was rather vaguely and poorly explained in Griswold. Part I.B
presents a more workable set of alternative models for the majority’s
implied rights theory. These models contribute naturally and directly
toward development of a satisfactory comprehensive approach for
judicial use in finding fundamental rights.
Part II considers two concurring opinions in Griswold. Part II.A
develops a model for the proper interpretation of the Ninth Amendment
from Justice Goldberg’s opinion, and explains the role of this
interpretation in my proposed composite model at the end of the Article.
Part II.B looks closely at Justice Harlan’s views, and critically analyzes
the underlying doctrine of substantive due process upon which he relied.
the Chief Justice and Justice Brennan, issued a concurring opinion. Id. at 486-99. Justices Harlan
and White concurred only in the Court’s judgment, and each issued a separate concurring
opinion. Id. at 499-502 and 502-07, respectively. Justice Black filed a dissenting opinion, joined
by Justice Stewart, and Justice Stewart filed a dissenting opinion, with the favor of joining
returned by Justice Black. Id. at 507-27 and 527-31, respectively.
4 See infra Diagrams 1-10.
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Part III focuses on the most serious criticisms of the Griswold
fundamental rights approaches. Careful attention is given to the
dissenting opinions of Justices Stewart and Black, the scholarly work of
Raoul Berger and Judge Robert Bork, and the more recent critical
comments and opinions of some justices who were not on the Supreme
Court when Griswold was decided. These views are entitled to respect,
and the model proposed at the end of the Article takes account of them
and attempts to address their legitimate concerns.
Part IV addresses several of the most promising approaches that
were not considered at all by any of the justices in Griswold. Partly for
this reason, both proponents and opponents of judicially enforceable
fundamental rights have given much less attention to these approaches
than they deserve. Part IV.A justifies a robust role for a revived
Fourteenth Amendment Privileges or Immunities Clause as one of
several overarching principles in the proposed model. Part IV.B
similarly discusses the additional interrelated animating principles of
Liberty, Equality and the Pursuit of Happiness.
Part V draws on the partial models presented and analyzed in Parts
I through IV, and constructs and proposes a new comprehensive
theoretical composite model for the courts to use in looking for and
finding fundamental individual rights that are not textually explicit.
Finally, the Article concludes with a call for other scholars and the
courts to consider and debate the proposed model, suggest any
refinements, and then accept it for use, both by the courts in deciding
individual rights cases and by scholars in critically evaluating the
courts’ work.
I. THE GRISWOLD MAJORITY OPINION:
ENVISIONING FUNDAMENTAL RIGHTS
Whenever a court sets about the task of finding and enforcing an
individual right, one of its primary concerns is to identify textual
sources within the Constitution which might support the right. For a
variety of reasons discussed later, the Griswold majority opinion
confined its search to the provisions of the Bill of Rights and their
implications. Although artificially limited in this regard, the opinion
begins the process of developing a useful theory of implied rights, as
discussed in Part I.A below. The theory is then re-conceptualized,
generalized and made more functional in Part I.B.
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Justice Douglas, Penumbras, and a Theory of Implied Rights
In identifying a source for fundamental rights, Justice Douglas’s
majority opinion in Griswold sketched5 a super-penumbral rights
approach that can be productively diagrammed as a plate of “sunny-side
up eggs.”6 Before discarding this approach as an obvious piece of
extra-constitutional sleight of hand, it is worth exploring its
underpinnings more carefully.
The central idea is that each textually explicit core right also has a
protective shell, and a set of corollary or derivative rights. The Court
describes these necessarily implied or peripheral rights as penumbras;
that is, each core right casts a shadow or has a “penumbra” that contains
the implied rights. This is a well-established approach to constitutional
text, and hardly a novel or inadmissible proposition conjured out of the
æther by Justice Douglas.7
5 Griswold, 381 U.S. at 479-86. Justice Douglas has been justifiably subject to criticism for
the “sketchy” and “incomplete” quality of his Griswold opinion. See, e.g., Richard A. Posner,
Legal Reasoning From the Top Down and from the Bottom Up: The Question of Unenumerated
Constitutional Rights, 59 U. CHI. L. REV. 433, 445 (1992) (stating that Douglas wrote the opinion
in “his usual slipshod way”); Glenn Harlan Reynolds, Sex, Lies and Jurisprudence: Robert Bork,
Griswold and the Philosophy of Original Understanding, 24 GA. L. REV. 1045, 1062 (1990)
(stating that “the opinion in Griswold bears the unmistakable mark of Justice Douglas’
enthusiasm, and that the Court’s reasoning might have been stated more clearly”); Pierre Schlag,
The Aesthetics of American Law, 115 HARV. L. REV. 1047, 1111 (2002) (stating that “Justice
Douglas’s opinion for the Court reads more like an amateur exercise in metaphysical poetry than
law”); Laurence H. Tribe, In Memoriam: William J. Brennan, Jr., 111 HARV. L. REV. 41, 45
(1997) (calling Douglas’ opinion “unsatisfyingly sketchy”). Such criticism, however, does not a
fortiori condemn the analytical framework proposed as a theoretical matter, or show that it was
misapplied in the instant case. This is perhaps particularly so in a legal culture based on a
common law methodological approach, which by its nature disclaims completeness or scientific
perfection in its legal system. Better craft is nonetheless certainly to be strived for, both to
improve the reliability and quality of result and to maintain the legitimacy and the equally
important perception of legitimacy vital to the Court’s role in our Constitutional democracy.
6 See infra Diagram 3.
7 See, e.g., Missouri v. Holland, 252 U.S. 416, 433-34 (1920) (addressing the issue of
whether a treaty is “forbidden by some invisible radiation from the general terms of the Tenth
Amendment”); Helvering v. Davis, 301 U.S. 619, 640 (1937) (holding that there is “a penumbra
in which discretion is at large” in determining the limits of the Congressional spending power);
McCulloch v. Maryland, 17 U.S. 316, 407 (1819) (holding that the Constitution “requires that
only its great outlines should be marked, its important objects designated, and the minor
ingredients which compose these objects be deduced from the nature of the objects themselves”).
For more history of the judicial usage of “penumbra” before Griswold, see, e.g., Henry T. Greely,
A Footnote to “Penumbra” in Griswold v. Connecticut, 6 CONST. COMMENT. 251, 252-60
(1989); Burr Henly, “Penumbra”: The Roots of a Legal Metaphor, 15 HASTINGS CONST. L.Q.
81, 83-92 (1987). In 1934, Karl Llewellyn argued for the forthright recognition of the penumbral
qualities of the Constitution. See K.N. Llewellyn, The Constitution as an Institution, 34 COLUM.
L. REV. 1, 26-28 (1934) (urging that the Constitution be seen as a “fundamental framework” and
a “working . . . institution” whose “edges” are “penumbra-like[,]” while critiquing a more
orthodox strict textual or original intent model as “unworkable, and heavy with the fragrance of a
charnel-house”). The idea that laws have cores and penumbras was also the subject of a debate
between Professors Hart and Fuller, which began years before Griswold was decided. Compare
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Justice Douglas, referring to the concrete clauses of the First
Amendment,8 cited a number of proper examples of what I will call the
Basic Core/Penumbra Model in operation.9
Penumbral First
Amendment rights include a right of association, and privacy of
constitutionally valid association;10 parental control and choice—within
limits—over their children’s education;11 academic freedom, especially
in the university setting;12 freedom of inquiry and thought;13 the right to
H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 607
(1958) (arguing that a law has a “core,” in which interpretation of its meaning is relatively settled
and there is no need for discretion, and a “penumbra” in which it is not) with Lon L. Fuller,
Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L. Rev. 610, 670 (1958)
(arguing instead that a law has a “structural integrity” which allows a judge great discretion
within its limits but does not permit him to go beyond those limits).
8 “Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S.
CONST. amend. I .
9 See infra Diagram 1.
10 Griswold, 381 U.S. at 482-83. (“The association of people is not mentioned in the
Constitution nor in the Bill of Rights. . . . Yet the First Amendment has been construed to include
[this right].”) The predicate assertion is not strictly true. The First Amendment does expressly
protect the “right of the people peaceably to assemble, and to petition the Government” but these
rights are narrower and qualitatively distinct from the nonetheless related penumbral right of
association. Justice Douglas would have done better to mention the rights of assembly and
petition as part of the core of the First Amendment giving rise to the broader penumbral right of
association. See Healy v. James, 408 U.S. 169, 181 (1972) (noting that “the freedom of
association . . . has long been held to be implicit in the freedoms of speech, assembly, and
petition”). Later cases clarify and refine the penumbral associational rights. See, e.g., Roberts v.
United States Jaycees, 468 U.S. 609 (1984) (refusing to exempt the all-male Jaycees from a state
law banning sex discrimination for public accommodations). Justice Brennan, writing for the
Court, discussed two forms of protected association: the right to make “choices to enter into and
maintain certain intimate human relationships . . . as a fundamental element of personal liberty[,]”
Id. at 617-18; and “[t]he right to associate for expressive purposes[.]” Id. at 623.
11 Griswold, 381 U.S. at 482 (relying on Pierce v. Society of Sisters, 268 U.S. 510 (1925) and
Meyer v. Nebraska, 262 U.S. 390 (1923)). Although Justice Douglas recast the original basis of
these decisions from Fourteenth Amendment liberty and substantive due process to the First
Amendment, he was surely correct that with the First Amendment now firmly incorporated
against the States, and with modern developments in substantive First Amendment jurisprudence,
the rights in question would be protected as penumbral rights under the First Amendment.
12 Griswold, 381 U.S. at 482 (citing inter alia Sweezy v. New Hampshire, 354 U.S. 234
(1957) (setting aside a contempt conviction for Sweezy’s refusal to answer questions at a State
legislative hearing about a lecture he delivered at the University of New Hampshire)). Justice
Frankfurter, concurring, asserted that “for society’s good,” academic freedom “must be left as
unfettered as possible” and can only be subordinated by the State “for reasons that are exigent and
obviously compelling.” Id. at 262. See generally LILLIAN HELLMAN, SCOUNDREL TIME (1976)
for a literary account of the McCarthy era, blacklisting, and the assertion of First Amendment
immunity from answering the questions of the House Committee on Un-American Activities.
The concept of academic freedom gained further support in later cases. See, e.g., Keyishian v.
Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589 (1967) (striking down a
requirement for university employees to sign a certificate declaring they were not Communists on
threat of dismissal). Justice Brennan’s majority opinion held that academic freedom is “a special
concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over
the classroom.” Id. at 603; Papish v. Bd. of Curators of the Univ. of Missouri, 410 U.S. 667
(1973) (holding state university’s expulsion of a graduate student, for distributing a political
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distribute, receive and read information;14 and freedom of belief.15 One
can now confidently add to this list of penumbral First Amendment
rights, inter alia, freedom of conscience,16 certain forms of symbolic
cartoon depicting policemen raping the Statue of Liberty, violated the student’s First Amendment
rights; “the mere dissemination of ideas—no matter how offensive to good taste—on a state
university cammpus [sic] may not be shut off in the name alone of ‘conventions of decency.’” Id.
at 670.); see also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (“Academic
freedom, though not a specifically enumerated constitutional right, long has been viewed as a
special concern of the First Amendment.”).
13 Griswold, 381 U.S. at 482. Justice Douglas appears to rely on Wieman v. Updegraff, 344
U.S. 183 (1952) for this proposition; see also Wooley v. Maynard, 430 U.S. 705, 714 (1977)
(“We begin with the proposition that the right of freedom of thought [is] protected by the First
Amendment”); and Schneiderman v. United States, 320 U.S. 118, 137 (1943) (“The consitutional
fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come.
Instead . . . the First Amendment [guarantees] freedom of thought.”).
14 Griswold, 381 U.S. at 482 (relying on Martin v. Struthers, 319 U.S. 141 (1943) (upholding
the right of a Jehovah’s Witness to distribute leaflets door to door)). A line of cases interpreting
and expanding these rights has followed. See, e.g., Lamont v. Postmaster Gen., 381 U.S. 301,
306-307 (1965) (finding unconstitutional the requirement that a recipient of communist political
propaganda sent through the mails from a foreign country submit a request to the Post Office in
order to receive the material); Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853,
867 (1982):
[T]he right to receive information and ideas . . . is an inherent corollary of the
rights . . . that are explicitly guaranteed by the Constitution, in two senses. First, the
right to receive ideas follows ineluctably from the sender’s First Amendment right to
send them . . . More importantly, the right to receive ideas is a necessary predicate to
the recipient’s meaningful exercise of his own rights of speech, press, and political
freedom.
See, e.g., McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (striking down Ohio’s
election law prohibiting distribution of anonymous political leaflets).
15 Griswold, 381 U.S. at 483 (relying on W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624
(1943) (overruling Minnersville v. Gobitis, 310 U.S. 586 (1940), and striking down the
compulsory flag salute policy of the Board of Education)). Justice Jackson’s oft-quoted statement
in his Barnette majority opinion is that if “there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to confess by word or act their
faith therein.” Barnette, 319 U.S. at 642. This American ideal is in stark contrast to human
experience throughout much of history which is replete with examples of forced conversions,
coerced confessions and imposed renunciation of beliefs. Fleeing from religious and political
persecution of this sort was one of the major motives for coming to America, and establishing the
principles of the Declaration of Independence and the Constitution.
16 See, e.g., Gilbert v. Minnesota, 254 U.S. 325, 335-36 (1920) (Brandeis, J., dissenting)
(objecting that as upheld by the majority “the statute invades the privacy and freedom of the
home. Father and mother may not follow the promptings . . . of conscience or of conviction, and
teach son or daughter the doctrine of pacifism.”) (emphasis added); Welsh v. United States, 398
U.S. 333, 340 (1970) (holding that the statute, which allowed conscientious exemption from the
draft on “religious” views, must also allow exemption based on deeply held secular moral
convictions). Justice Harlan, in his concurrence, insisted that a distinction between religious
beliefs and deeply held personal conscience beliefs violated the Free Exercise and Establishment
Clauses: “[T]he conscience of religion may not be preferred simply because organized religious
groups in general are more visible than the individual who practices morals and ethics on his
own.” Id. at 360 n.12; Abood v. Detroit Bd. of Ed., 431 U.S. 209, 234-35 (1977) (“[f]or at the
heart of the First Amendment is the notion that . . . in a free society one’s beliefs should be
shaped by his mind and his conscience rather than coerced by the State”). Cf. Washington v.
Glucksberg, 521 U.S. 702, 727 (1997) (Rehnquist, C.J.) (“liberty necessarily includes freedom of
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expression,17 and the right not to speak or to be involuntarily associated
with ideas not held as one’s own.18 The modern Court’s partial
protection of commercial speech,19 non-malicious libel of public
figures,20 and emotionally distressing parody21 are also properly viewed
conscience”).
17 See, e.g., Tinker v. Des Moines Ind. Cmty. Sch. Dist., 393 U.S. 503 (1969) (upholding the
right of a junior high school student to wear a black arm band to school to protest the Vietnam
war); Cohen v. California, 403 U.S. 15 (1971) (reversing Cohen’s disturbing the peace conviction
for wearing a jacket in a courthouse hallway with the words “Fuck the Draft” on the jacket);
Spence v. Washington, 418 U.S. 405 (1974) (reversing Spence’s conviction for hanging a flag he
owned out of his apartment window with a peace symbol taped to it to protest the invasion of
Cambodia and the killings at Kent State University); Texas v. Johnson, 491 U.S. 397, 397 (1989)
(holding that flag burning as a means of protest is “expressive conduct” entitled to protection);
United States v. Eichman, 496 U.S. 310 (1990) (reaffirming Texas v. Johnson and striking the
Flag Protection Act passed by Congress in response to the Court’s decision in Johnson); and
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (nude dancing as protected symbolic
expression); see also the controversy surrounding the proposed march of the Nazis in Skokie,
Illinois, where the courts upheld the right to march and wear symbols including the Nazi swastika
in Nat’l Socialist Party v. Skokie, 432 U.S. 43 (1977); Collin v. Smith, 578 F.2d 1197 (7th Cir.
1978), stay denied, 436 U.S. 953 (1978); Cf. Clark v. Cmty. for Creative Non-Violence, 468 U.S.
288, 293 (1984) (rejecting an attack on a Park Service regulation prohibiting overnight camping
in certain parks, though assuming arguendo, but not deciding, that sleeping in public parks as a
demonstration to call attention to the plight of the homeless “is expressive conduct protected to
some extent by the First Amendment”).
18 See Wooley v. Maynard, 430 U.S. 705 (1977) (affirming the right of objectors to cover
New Hampshire’s motto “Live Free or Die” on their auto license plates). Chief Justice Burger’s
majority opinion held that the First Amendment “includes both the right to speak freely and the
right to refrain from speaking at all.” Id. at 714 (emphasis added). That the right not to speak is
truly penumbral and not just an example of a possible general rule that each affirmative right
necessarily includes its flip side or negative as part of its core is demonstrated by the fact that not
all of the rights in the Bill of Rights have been interpreted to include their flip sides. Compare,
e.g., Faretta v. California, 422 U.S. 806 (1975) (the Sixth Amendment right to counsel also
includes a right to self representation without counsel) with Singer v. United States, 380 U.S. 24
(1965) (the jury trial right does not give defendant an unfettered right to waive jury and demand
to be tried by a judge). Justice Scalia makes a similar point in arguing that a right to eat ought not
to require recognition of a “constitutional right to starve oneself to death.” Planned Parenthood of
Se. Pa. v. Casey, 505 U.S. 833, 981 n.1 (Scalia, J., dissenting). Justice Scalia is probably correct
that there is no such general right, but under certain circumstances there may be a strong claim for
a composite or hybrid right. Consider, for example, the reported death of a chronically ill woman
in Portland, Oregon who chose to end her life by refusing to eat or drink. Don Colburn, End
Comes for Patient Who Fasted, THE OREGONIAN, July 29, 2005, at D01. See infra notes 65-80
and accompanying text for further discussion of composite or hybrid rights. For the penumbral
right not to be associated with individuals espousing unwanted ideas, see, e.g., Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995); Boy Scouts of
America v. Dale, 530 U.S. 640 (2000).
19 See, e.g., Central Hudson Gas v. Pub. Service Comm’n of N.Y., 447 U.S. 557 (1980)
(applying mid-level protection for non-misleading commercial speech concerning lawful
activities or products); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (holding
unconstitutional a statute prohibiting price advertising by liquor retailers except at the point of
sale).
20 See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 283 (1964) (holding that proof of
actual malice is required to sustain a libel action “brought by public officials against critics of
their official conduct”); Curtis Publ’g Co. v. Butts, 388 U.S. 130, 165 (1967) (Warren, C.J.,
concurring) (extending the New York Times standard of proof to apply to “public figures” as well
as “public officials” in order to “afford the necessary insulation for the fundamental interests
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as further examples of implied or penumbral speech rights, in view of
the prior categorical rejection of these forms of expression.22
Justice Douglas employed analogous, non-constitutional,
core/penumbra reasoning to justify third party standing for the
defendant appellants,23 allowing them to assert the putative rights of
married couples to be free from government investigation and
prosecution for use of contraceptives during private marital sexual
relations. The Justice supported this analysis by indicating: “The rights
of husband and wife, pressed here, are likely to be diluted or adversely
affected unless those rights are considered in a suit involving those who
have this kind of confidential relation to them.”24
This rationale, and its penumbral conclusion that Griswold and
Buxton could assert the claimed rights of their married clients/patients,25
went unchallenged, and we therefore can assume that it was properly
accepted by all members of the Court. Similarly, unless one adopts a
dangerous and unjustifiably narrow view of the Court’s responsibility to
interpret and enforce the Bill of Rights, the Court acts responsibly and
legitimately when it finds penumbral rights that flow naturally from one
of the textually explicit core rights, especially where the enforcement of
the penumbral right serves to protect the core right from dilution or
adverse effect.26
which the First Amendment was designed to protect”).
21 See Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988) (holding public figures and
officials may not recover for intentional infliction of emotional distress caused by parody without
a showing of “a false statement of fact which was made with ‘actual malice[.]’” Chief Justice
Rehnquist wrote that “such a standard is necessary to give adequate ‘breathing space’ to the
freedoms protected by the First Amendment.”) Id.
22 See the earlier traditional view of Valentine v. Chrestensen, 316 U.S. 52, 54 (1942)
(holding that the First Amendment does not protect “purely commercial advertising”); see also
Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942) (“There are certain well-defined and
narrowly limited classes of speech, the prevention and punishment of which has never been
thought to raise any Constitutional problem. These include the lewd and obscene, the profane,
the libelous, and the insulting or ‘fighting’ words[.]”). Subsequently developed penumbral
speech rights have sharply narrowed these categorical exceptions. See supra notes 17-21.
23 Estelle T. Griswold, Executive Director of the Planned Parenthood League of Connecticut,
and C. Lee Buxton, Medical Director for the New Haven Clinic.
24 Griswold v. Connecticut, 381 U.S. 479, 481 (1965).
25 That conclusion is also supported by the fact that Griswold and Buxton were subjected to
criminal prosecution, conviction and fines, and that their convictions were for aiding and abetting
their clients/patients prohibited “use” of contraceptives. Griswold, 381 U.S. at 480. “Certainly
the accessory should have standing to assert that the offense which he is charged with assisting is
not, or cannot constitutionally be a crime.” Id. at 481. But this general proposition alone is not
always sufficient. For example, one may be guilty of manslaughter for aiding and abetting a
suicide even if suicide itself is no longer a crime.
26 The majority opinion is sprinkled liberally with language indicating that Justice Douglas
was indeed relying on this unassailable rationale for the first order core-penumbra theory.
“Without those peripheral rights the specific rights would be less secure.” Griswold, 381 U.S. at
482-83. “Association in that context is a form of expression of opinion; and while it is not
expressly included in the First Amendment its existence is necessary in making the express
guarantees fully meaningful.” Id. at 483. “[S]pecific guarantees in the Bill of Rights have
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Justice Douglas suggested a similar model for other provisions of
the Bill of Rights,27 particularly the Third28 and Fourth29 Amendments
and the portion of the Fifth Amendment protecting the accused from
being “compelled in any criminal case to be a witness against
himself[.]”30 Unfortunately, the opinion did not even give brief
citations regarding penumbral rights for these amendments, as was done
with respect to the First Amendment, nor did it demonstrate care in
defining the contours of the penumbral rights associated with each
textual clause of the Bill of Rights. Nonetheless, there are good
examples of penumbral rights for the other amendments.
For example, Katz v. United States31 extended the procedural
protections of the Fourth Amendment to government electronic
interception of private telephone conversations from a public phone
booth, although the government made no physical search of the
defendant’s person, house, papers or effects, the only items expressly
protected by the core text of the Fourth Amendment. Justice Stewart,
writing for the Court, asserted that “the Fourth Amendment protects
penumbras, formed by emanations from those guarantees that help give them life and substance.”
Id. at 484.
27 Id.
28 “No Soldier shall, in time of peace be quartered in any house, without the consent of the
Owner, nor in time of war, but in a manner to be prescribed by law.” U.S. CONST. amend. III.
29 “The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. CONST. amend. IV.
30 U.S. CONST. amend. V.
31 389 U.S. 347 (1967).
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Justice Harlan’s influential concurrence
people, not places.”32
recalibrated the Fourth Amendment protection to match an individual’s
penumbral “reasonable expectation of privacy.”33
Miranda v. Arizona34 attached a penumbral protection to the Fifth
Amendment’s Self-Incrimination Clause. Chief Justice Warren, writing
for the Court, held that a suspect must be advised of his right to have
counsel present during custodial interrogation, even if the suspect has
not been formally charged with a crime; this right is “indispensable to
the protection of Fifth Amendment privilege” because “[t]he
circumstances surrounding in-custody interrogation can operate very
quickly to overbear the will of one merely made aware of his privilege
[not to incriminate himself] by his interrogators.”35 Since the textual
Sixth Amendment right to counsel does not attach until a suspect is
formally charged,36 it is clear that the Miranda right to counsel is
completely penumbral to the core Fifth Amendment right of silence.
In an entirely different context, the Supreme Court found that a
penumbral notion of equality, beyond the core procedural fairness due
process requirement of the Fifth Amendment, limited the federal
government. Brown v. Board of Education,37 of course, held that statemandated segregated schools are “inherently unequal” and violate the
Fourteenth Amendment Equal Protection Clause. In Bolling v.
Sharpe,38 the Supreme Court was confronted with the question of
whether segregation in the federally run schools of Washington, D.C.
was also unconstitutional. The Sharpe Court acknowledged that there
was no equal protection clause limiting the federal government in the
Fifth Amendment, but asserted that “the concepts of equal protection
and due process . . . are not mutually exclusive” and “discrimination
may be so unjustifiable as to be violative of due process.”39 Essentially,
the Court concluded that a penumbral equality notion was necessary to
avoid an “unthinkable” result, and to protect the core fundamental
fairness at the heart of due process.40
The Court’s regulatory takings cases provide further examples of
penumbral rights for another clause of the Fifth Amendment: “nor shall
private property be taken for public use, without just compensation.”41
32
33
34
35
36
37
38
39
40
Id. at 351.
Id. at 360.
384 U.S. 436 (1966).
Id. at 469.
See, e.g., Kirby v. Illinois, 406 U.S. 682 (1972); Texas v. Cobb, 532 U.S. 132 (2001).
347 U.S. 483, 495 (1954).
347 U.S. 497 (1954).
Id. at 499.
Id. at 500. Federal race-based affirmative action programs are subject to modified strict
scrutiny equality analysis also as a matter of Fifth Amendment due process. See Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
41 U.S. CONST. amend. V.
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The core textual right limits the government’s eminent domain power,
that is the power to seize the property and take legal title away from the
private owner, and requires compensation. Less complete government
interference with private property that constitutes a deprivation is
subject to due process safeguards, but not necessarily to compensation.
That is, all takings are deprivations, but not all deprivations are takings.
The Court has found penumbral compensable takings even where there
is no exercise of eminent domain under a general ad hoc case-by-case
test,42 and under several categorical per se rules.43
The right to effective appointed counsel at the public’s expense for
indigent defendants in felony and most misdemeanor cases is an
example of a penumbral Sixth Amendment right.44 That this right is
truly penumbral is shown by the fact that some misdemeanor defendants
are not entitled to appointed counsel, despite the textual coverage of
core Sixth Amendment rights in “all criminal prosecutions.”45
Finally, the many special heightened procedural protections at
capital sentencing hearings are penumbral rights required by the
Supreme Court, relying upon the Eighth Amendment, to reduce the risk
of erroneous cruel and unusual death sentences that would violate the
core Eighth Amendment right.46
Once one accepts the Basic Core/Penumbra Model,47 an
incremental, yet important expansion to a second order theory follows
as a matter of logic. Suppose that an asserted right cannot be found in
the core or penumbra of any one of the Bill of Rights, but that the
asserted right can be meaningfully constructed from a number of pieces
(like the pieces of a jigsaw puzzle) and that each one of those pieces can
42 See, e.g., Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922) (holding that the coal company
could not be prohibited from removing their subsurface coal without compensation, though it
might harm another party’s house. Justice Holmes stated the rule: “[W]hile property may be
regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”) Id. at
415; Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978); Lingle v. Chevron, 544
U.S. 528 (2005).
43 See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 421 (1982) (any
government imposed “permanent physical occupation” of private property is a per se taking, even
if it is “minor”); Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (holding a government
regulation preventing an owner from building on his beach front property to be a per se taking,
where his proposed building did not constitute a nuisance and where the regulation effectively
denied him “all economically beneficial uses” of his land).
44 See Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25
(1972); Strickland v. Washington, 466 U.S. 668 (1984).
45 U.S. CONST. amend. VI; see Scott v. Illinois, 440 U.S. 367 (1979) (holding that there is no
Sixth Amendment right to counsel in a misdemeanor case where the judge promises the defendant
in advance that she will not go to jail even if convicted).
46 U.S. CONST. amend. VIII. See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976); Gardner v.
Florida, 430 U.S. 349, 357 (1977); Presnell v. Georgia, 439 U.S. 14, 16 (1978); Eddings v.
Oklahoma, 455 U.S. 104, 118 (1982) (O’Connor, J., concurring); Ake v. Oklahoma, 470 U.S. 68,
87 (1985) (Burger, C.J., concurring).
47 See supra Diagram 1.
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be found in the core or penumbra of one of the clauses of the Bill of
Rights. Then the asserted right is legitimate and presumptively entitled
to judicial protection.48 This second order core/penumbra analytical
approach will be referred to as the Sum of the Parts Model, and it can be
graphically represented as follows:
The difficulty with the majority opinion in Griswold under either
the Basic or the Sum of the Parts core/penumbra framework arises from
the fact that the majority did not claim, and it is not clear that a
convincing claim could have been made, that the fundamental right
asserted was contained within the boundaries of the cores and
penumbras of the cited provisions of the Bill of Rights.49 This leads to
either the rejection of the majority approach or a requirement for the
justification of a third order Super-Penumbral Model.50 Such an
approach in effect, that the individual cores and penumbras taken
together have their own larger penumbra, depends upon the
unremarkable notion (relied on for the second order Sum of the Parts
Model) that the different rights provisions of the Constitution should be
read together, and the related notion that when this is done, the Whole
48 The Court can be most confident of this approach when most or all of the pieces of the
claimed right are found in the cores of express rights; conversely the Court should be somewhat
more careful or cautious as more of the pieces are found in penumbras, particularly if they are
found near the outer edges of the penumbras. See infra notes 155-156, 214 and accompanying
text for further discussion of these points.
49 Perhaps this is what Justice Black meant when he said that his disagreement with Justice
Douglas’ majority opinion “is a narrow one.” Griswold v. Connecticut, 381 U.S. 479, 511
(1965).
50 See infra Diagram 3.
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(i.e. the total area of constitutionally protected rights) exceeds the Sum
of the Parts.
This method of interpreting legal texts, or other texts for that
matter, is widely applied in a variety of cases. For example, it is used as
a rule of construction for contracts, where the provisions are interpreted
to create broader obligations when read as a whole than they do when
read in isolation.51 The method is also a standard canon of statutory
construction applied by courts to give the fullest possible meaning to the
legislature’s statutory purposes.52
There is even more reason to view a constitution as a unified whole
and to try to give effect to as many of its policies and values as possible.
Chief Justice Marshall stated as much in McCulloch v. Maryland, when
he explained that the question of whether Congress had the power to
incorporate a bank was “to depend on a fair construction of the whole
instrument . . . . [W]e must never forget that it is a constitution we are
expounding.”53 Marshall went on to state that the Bank’s claim,
although there was “no express provision for the case,” was “sustained
on a principle which so entirely pervades the constitution . . . as to be
incapable of being separated from it, without rending it into shreds.”54
The Griswold majority suggested that it was indeed relying on a
super-penumbral framework when it stated that the individual
provisions of the “Bill of Rights have penumbras,”55 and that these
create “zones of privacy”56 which, when taken together, include the
specific type of relationship “privacy” claimed in that case.57
Additional evidence that the majority opinion endorsed a super51 See, e.g., Chicago & Nw. Ry. Co. v. Kramme, 59 N.W.2d 204 (1953) (holding that a
contractor who had agreed to indemnify a railway company against liability for injury had to
reimburse the company for an injured person’s expenses even though the company was not
actually liable to that person. The court found that the agreement to indemnify, when viewed as a
whole, was in fact “an absolute promise to assume and pay the necessary and reasonable expense
plaintiff seeks to collect.”). Id. at 206.
52 See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976) (holding that the contribution provisions of
the Federal Election Campaign Act of 1971 were constitutional, but the expenditure provisions
were not. Chief Justice Burger dissented in part, objecting to this piecemeal approach to statutory
construction: “By dissecting the Act bit by bit, and casting off vital parts, the Court fails to
recognize that the whole of this Act is greater than the sum of its parts . . . . [W]hat remains after
today’s holding leaves no more than a shadow of what Congress contemplated.” Id. at 235-6
(Burger, C.J. concurring in part and dissenting in part)) (emphasis added).
53 McCulloch v. Maryland, 17 U.S.316, 406-07 (1819) (emphasis added).
54 Id. at 426. Similarly, Justice Harlan emphasized the special significance of purpose
underlying constitutional text in Poe v. Ullman, 367 U.S. 497, 544 (1961) (“For it is the purposes
of those guarantees and not their text, the reasons for their statement by the Framers and not the
statement itself”). One of the most important expressly stated animating purposes of the
Constitution is to “secure the blessings of liberty to ourselves and our posterity[.]” U.S. CONST.
pmbl.
55 Griswold, 381 U.S. 479, 484 (1965).
56 Id.
57 “The present case, then, concerns a relationship lying within the zone of privacy created by
several fundamental constitutional guarantees.” Id. at 485.
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penumbral approach is included in its statement: “In other words, the
State may not, consistently with the spirit of the First Amendment,
contract the spectrum of available knowledge.”58 This language
followed the Court’s discussion of Pierce and Meyer, and generalized
one level further from the penumbral rights of those two cases
(respectively, parental choice of a child’s education and the right to
study a foreign language or any other subject). The Court inductively
found a meta right, relying on several penumbras associated with core
First Amendment rights, and on the proposition that these penumbras
have their own larger penumbra containing the meta right. That is, the
Whole (larger penumbra) is greater than the sum of the several
penumbras.59
Still stronger support for the validity of a super-penumbral theory
comes from Boyd v. United States.60 Boyd is cited by the Griswold
majority for the proposition that the Fourth and Fifth Amendments
should be read together to more broadly protect the “privacies” of life
than they would if read separately.61 In expounding his superpenumbral interpretation of the Fourth and Fifth Amendments
“[running] almost into each other,” Justice Bradley writing for the Boyd
Court, set a particularly good example.62 He analyzed and worked out
58
59
Id. at 482.
Similarly, in discussing NAACP v. Alabama, 357 U.S. 449 (1958), the Court noted that
“freedom of association was a peripheral” (or penumbral) right and, as a penumbra to that
penumbra, the Court protected the privacy of the association’s membership list against state
compelled disclosure “as entailing the likelihood of a substantial restraint upon the exercise by
petititioner’s members of their right to freedom of association.” Id. at. 483 (quoting NAACP, 357
U.S. at 462).
60 116 U.S. 616 (1886).
61 381 U.S. at 484 and accompanying footnote (quoting Boyd, 116 U.S. at 630, “The
principles [described by Lord Camden in Entick v. Carrington, [1765]19 How. St. Tr. 1029 K.B.
Ct.C.P.] . . . apply to all invasions on the part of the government and its employees of the sanctity
of a man’s home and the privacies of life.” The “invasion” in Boyd was a request that the
defendant, accused of shipping cases of plate glass in violation of the customs laws, produce an
invoice for 29 of the cases. Boyd, 116 U.S. at 618. The particular law to which the defendant
objected held that if “any business book, invoice, or paper belonging to . . . the defendant . . . will
tend to prove any allegation made by the United States,” and the defendant failed to produce such
papers on request, “the allegations . . . shall be taken as confessed, unless his failure or refusal to
produce the same shall be explained to the satisfaction of the court.” Id. at 619-20. The Court
found this “compulsory production,” while it lacked “certain aggravating incidents of actual
search and seizure,” achieved “the substantial object of those acts in forcing from a party
evidence against himself,” and thus fell within the scope of the Fourth and Fifth Amendments.
Id. at 622.
62 Id. at 630. Bradley stated that the “essence” of Lord Camden’s Carrington opinion was
that it described an “indefeasible right of personal security, personal liberty and private property,”
and that in protecting that right, “the fourth and fifth amendments run almost into each other.” Id.
In other words, when the Fourth and Fifth Amendment prohibitions against unreasonable seizures
and self-incriminations are read together, they suggest an “indefeasible right” that is broader than
the text of either amendment might suggest if it was read alone. Later on Bradley provides a
further rationale for such a construction:
[T]he two amendments . . . throw great light on each other. For the ‘unreasonable
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the scope of the interplay between the Fourth and Fifth Amendments
and their combined application to the Boyd facts, carefully utilizing
constitutional text, history, the framers’ experience, precedent, logic and
the values implicit from these sources.63 Decades later, Justice Brandeis
declared that Boyd was “a case that will be remembered as long as civil
liberty lives in the United States . . . which in giving effect to the
principle underlying the Fourth Amendment . . . refused to place an
unduly literal construction upon it.”64
Some of the Supreme Court’s most intriguing individual rights
decisions rely on a composite or hybrid rights approach, similar to
Boyd, where the whole right is more potent than the sum of its
constituent parts.
For example, Stanley v. Georgia65 found
constitutional protection for an adult’s possession of obscene films in
the privacy of his home despite the fact that a majority of the Court
considers obscenity to be categorically excluded from First Amendment
protection,66 and even though the significant privacy of the home does
not create a general sanctuary exempt from law enforcement intrusions
so long as there is compliance with Fourth Amendment procedural
searches and seizures’ condemned in the fourth amendment are almost always made
for the purpose of compelling a man to give evidence against himself, which in
criminal cases is condemned in the fifth amendment; and [this kind of compelled selfincrimination] throws light on the question as to what is an ‘unreasonable search and
seizure’ within the meaning of the fourth amendment.”
Id. at 633.
63 For example, Bradley justified his reliance on Lord Camden’s Carrington opinion by
noting its historical significance as:
on [sic] of the landmarks of English liberty . . . applauded by lovers of liberty in the
colonies as well as in the mother country . . . Can we doubt that when the fourth and
fifth amendments to the constitution of the United States were penned and adopted, the
language of Lord CAMDEN was relied on as expressing the true doctrine on the
subject of searches and seizures, and as furnishing the true criteria of the reasonable
and “unreasonable” character of such seizures?
Id. at 626, 630. The same overarching concept of liberty, Bradley argued, was written into both
the Fourth and Fifth Amendments. Id.
64 Olmstead v. United States, 277 U.S. 438, 474, 476 (1928) (Brandeis, J. dissenting).
Brandeis was only partly correct; while Boyd retains its intellectual appeal as an example of
super-penumbral reasoning, it has lost much of its force as law. See, e.g., Fisher v. United States,
425 U.S. 391, 407 (1976) (holding that a summons directing taxpayers to produce documents
created by their accountants for the accountants’ preparation of their tax returns does not violate
the Fifth Amendment since the documents did not contain the taxpayers’ own compelled
testimonial communications; “Several of Boyd’s express or implicit declarations have not stood
the test of time.”); Andresen v. Maryland, 427 U.S. 463 (1976) (holding that a valid search
warrant for incriminating testimonial papers in petitioner’s law and corporate office per force
does not violate the Fourth Amendment, and does not violate the Fifth Amendment either since
the search does not constitute compulsion on the individual to produce the papers); see also
Robert S. Gerstein, The Demise of Boyd: Self-Incrimination and Private Papers in the Burger
Court, 27 UCLA. L. REV. 343 (1979).
65 394 U.S. 557, 559 (1969).
66 See, e.g., Miller v. California, 413 U.S. 15 (1973).
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requirements.67 Clearly, neither amendment by itself, even when
augmented with its penumbral rights, would have been sufficient.
Stanley prevailed only through the greater composite of the two
provisions and their penumbral concerns. Griswold is quite similar in
that the fundamental right is a combination of the privacies of place, the
home and especially the marital bedroom, together with personal
autonomy and control of one’s own body, intimate marital relations and
procreation.68
A growing number of other cases decided by the Supreme Court
also rely on composite or hybrid rights as the basis for ruling in favor of
the individual and against the constitutionality of a variety of state
policies restricting individual freedom.69 In Yoder, the Court relied
principally on a penumbral aspect of the First Amendment’s Free
Exercise of Religion Clause and upheld the right of Amish parents to
remove their children from school altogether after the eighth grade in
contravention of Wisconsin’s facially neutral compulsory attendance
law. Nonetheless, the Court later justified Yoder and its result as a
67 See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961) (also involving obscene films); Illinois v.
Gates, 462 U.S. 213 (1983).
68 Plyler v. Doe, 457 U.S. 202 (1982) is another important case utilizing a composite or
hybrid rights approach. The majority in Plyler applied heightened mid-level equal protection
scrutiny to overturn the Texas policy of excluding children of undocumented aliens from free
public education. Id. at 239. The Court combined the factors of the children’s involuntary illegal
status with the importance of education to form a quasi-suspect/quasi-fundamental hybrid right,
but notably did not find either that this class of children was suspect or that education was a
fundamental right. Id. at 221. Neither factor alone would have been sufficient for the children to
prevail. Cf. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (holding that publicly
funded K-12 education is not a fundamental right for Due Process of Equal Protection purposes,
and refusing to strike Texas’s local property tax funding system that left different school districts
with greatly disparate per pupil funding).
69 Other cases where composite/hybrid rights were, or may have been, necessary to the
Court’s results include inter alia Wisconsin v. Yoder, 406 U.S. 205 (1972) (combining free
exercise of religion with the right to control the education of one’s children); Cantwell v.
Connecticut, 310 U.S. 296 (1940) (combining freedom of even offensive speech and freedom of
religion); Wooley v. Maynard, 430 U.S. 705 (1977) and West Virginia State Bd. of Educ. v.
Barnette, 319 U.S. 624 (1943) (combining the penumbral right not to speak with freedom of
religion); Meyer v. Nebraska, 262 U.S. 390 (1923) (combining the penumbral rights of the
teacher to teach and the student to learn a modern language, and the parents to control their
children’s education); Loving v. Virginia, 388 U.S. 1 (1967) (combining race equality with the
freedom to marry an eligible partner of one’s choice); Roberts v. Jaycees, 468 U.S. 609 (1984)
(suggesting that a combination of the penumbral rights of expressive association and choosing
individuals for intimate relationships would form a powerful composite right); Lawrence v.
Texas, 539 U.S. 558, 562 (2003) (like Griswold combining protection of dwellings and other
private places with an “autonomy of self that includes . . . certain intimate conduct”); Washington
v. Glucksberg, 521 U.S. 702, 716, 720, 725 (1997) (exploring the combination of the right to
refuse unwanted medical treatment with a potentially emerging penumbral right “to protect
dignity and independence at the end of life”); see also id. at 743. (Stevens, J. concurring in the
Court’s judgments in Glucksberg and Vacco v. Quill, 521 U.S. 793 (1997) (“This freedom
embraces not merely a person’s right to refuse a particular kind of unwanted treatment, but also
her interest in dignity, and in determining the character of the memories that will survive long
after her death.”).
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“hybrid situation” involving a free exercise claim coupled with a claim
of “the right of parents . . . to direct the education of their children.”70
The Smith Court distinguished Yoder and refused to recognize a
constitutional exemption to Oregon’s generally applicable criminal
peyote prohibition based solely on Smith’s free exercise of religion
claim, unaccompanied by another component right.71 This, together
with the indisputable fact that a state requirement demanding children
be reasonably educated trumps parental refusal based solely on control
over their children’s upbringing, demonstrates that neither Yoder claim
by itself would have been sufficient. The Amish parents prevailed on
the strength of the greater combined or hybrid right, at least as Yoder is
explained in Smith.72
Finally, one of the better examples of a composite/hybrid right that
clearly reflects a Super-Penumbral or Whole is Greater than the Sum of
Its Parts approach is the right to travel. The elements of this right come
from many sources, among them the penumbral Dormant Commerce
Clause,73 the Commerce Clause itself (especially as enforced by
Congress in the 1964 civil rights laws),74 pre-Constitutional
documents,75 structural implications from the Constitution,76 the First
Amendment right to “petition the Government for a redress of
grievances[,]” Equal Protection,77 the Citizenship Clause of the
Fourteenth Amendment78 together with the Privileges and Immunities
Clause of Article IV, § 2, or with the Fourteenth Amendment Privileges
or Immunities Clause.79 Clearly, the strength of the right to travel or
migrate is greatly enhanced by its multi-source composite character, as
70
71
Employment Div., Dep’t. of Human Res. v. Smith, 494 U.S. 872, 881-82 (1990).
Id. at 882 (“The present case does not present such a hybrid situation, but a free exercise
claim unconnected with any communicative activity or parental right.”).
72 One need not necessarily agree with the Smith Court’s refusal to apply strict scrutiny, or
with its result denying members of the Native American Church a constitutional exemption for
their sacramental use of peyote, to appreciate the validity of the Court’s necessary proposition
that the strength of a composite or hybrid right is greater than either of its components, and also
greater than the sum of the two components.
73 Edwards v. California, 314 U.S. 160 (1941).
74 See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung,
379 U.S. 294 (1964).
75 See especially the rights of “ingress and regress to and from” each State guaranteed by
express provision in the Articles of Confederation, Art. IV.
76 See, e.g., United States v. Guest, 383 U.S. 745, 758 (1966) (suggesting that although the
right to travel “finds no explicit mention in the Constitution[,] . . . freedom to travel throughout
the United States . . . [is] a necessary concomitant of the stronger Union the Constitution
created.”); Crandall v. Nevada, 73 U.S. 35 (1868).
77 See, e.g., Shapiro v. Thompson, 394 U.S. 618 (1969); Zobel v. Williams, 457 U.S. 55
(1982).
78 Edwards, 314 U.S. at 181 (Douglas, J., concurring) (“The conclusion that the right of free
movement is a right of national citizenship stands on firm historical ground.”).
79 See Saenz v. Roe, 526 U.S. 489 (1999); cf. United Bldg. & Constr. Trades Council v.
Camden, 465 U.S. 208 (1984).
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evinced by the declaration in Saenz that the right may be even more
powerful than a fundamental right protected by strict scrutiny.80
All of these decisions, especially the ones that have been broadly
accepted, add significant weight to a Whole is Greater than the Sum of
Its Parts or Super-Penumbral Model.
Of course not every composite claim of right will prevail.81 This
may be a proper result when the claim is rejected by a court
conscientiously applying the Super-Penumbral Model, but not finding
the right. The denial of the claim, on the other hand, is quite troubling
when a court neglects to apply the model altogether.
B.
Alternative Views of the Griswold Majority’s Implied Rights
Analytical Framework
Alternative A: Justice Douglas fleetingly suggested another way to
80 Saenz, 526 U.S. at 504 (“Neither mere rationality nor some intermediate standard of review
should be used . . . . The appropriate standard may be more categorical than that articulated in
Shapiro, . . . but it is surely no less strict.”).
81 See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (permitting the search of a
University newspaper office with a valid warrant, and rejecting the composite First Amendment
free press and Fourth Amendment privacy proposal for a subpoena-first requirement absent
suspicion that the newspaper was itself involved in criminal activity). Interestingly, Congress
responded unfavorably to this limited interpretation and legislatively granted conditional
subpoena-first protection for newspaper, publishing and media entities. Privacy Protection Act of
1980, 42 U.S.C. §§ 2000aa, et. seq. (1996); see also Fisher v. United States, 425 U.S. 391, 407
(1976) and Andresen v. Maryland, 427 U.S. 463 (1976) (implicitly rejecting composite Fourth
and Fifth Amendment claims).
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visualize or think about the super-penumbral, or the whole is greater
than the sum of its parts idea. He wrote cryptically, “Various
guarantees create zones of privacy . . . . The Third Amendment in its
prohibition . . . is another facet of that privacy.”82 Any complex system
of ideas, or a three dimensional crystalline object such as a diamond,
has many facets. The diamond, or the whole body of knowledge, or a
complete system of rights, contains all of its own facets, but the
combination of any finite subset of the facets does not equal the whole.
If enough of the right facets are selected and studied carefully, however,
they will suggest a close approximation of the whole, and allow us to
appreciate the greater essence of the whole. Justice Douglas’s
implication in Griswold is that the particular zones of privacy (facets)
together give rise to a still broader or more complete privacy—that is, a
super-penumbral right beyond the sum of the individual penumbral
rights.83 While a Facet Model is a perfectly reasonable approach in
principle, Justice Douglas did not begin to give it a proper justification,
even assuming that he had such a model in mind. A conscientious
effort to use this model would require the careful demarcation of all
relevant known facets (known rights), and the careful construction of
the implied rights structure of the assumed crystalline whole. It would
not be nearly enough to intone general notions of privacy; instead it
would be necessary to define the new right with precision and to show
that it was very likely to be part of the completed crystal structure.
82
83
Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (emphasis added).
See Diagram 4 for a pictorial depiction of the Facet Model; see supra Diagram 3, to
compare the Super-Penumbral or Whole is Greater than the Sum of Its Parts Model.
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Alternative B: There is an even more useful alternative to the
sunny-side-up eggs diagram for the super-penumbral analytical
framework gleaned from the majority opinion in Griswold. Under this
alternative model, the individual clauses of the Bill of Rights are
concrete and specific examples of more comprehensive and general
rights that the Constitution protects. The Court would first use an
inductive process to work from the catalog of specific examples toward
a list of more general rights, with contour and shape, based on
discoverable transcendental values behind the specific constitutional
text. Next, the Court would more deductively apply these meta rights to
the new facts and circumstances of each case, and determine whether
the previously unrecognized, and not textually apparent, but claimed
fundamental right exists. I will refer to this alternative model and its
associated pictorial representation as the Meta Up and Down Model.84
This framework is not as esoteric as it sounds. A more prosaic
example may help illustrate the validity and practicality of this
approach. Suppose a person with no prior knowledge of the subject is
given an apple, a watermelon, a pear, a Valencia orange, a lemon, and a
kiwi, and then she is handed a grape and asked if the grape is “one of
those.”85 At first blush, the person may be inclined to respond
negatively since no grape was included in the six exemplars. If she
successfully resists the temptation to respond so quickly and literally,
the next step will be to consider the characteristics of the six examples
and the grape more closely to determine if there are “enough”
significant similarities and “few enough” or no material dissimilarities.
The wise individual will construct a more general or meta-category with
certain defining characteristics from the six examples given, and then
apply this category and its characteristics to see if the grape is indeed
“one of those.” If the interlocutor had in mind “fruit” as the general
category represented by the six examples, and the respondent correctly
identified the significant characteristics of the examples as those of
fruit, then both would agree that the grape was indeed “one of those.”86
84
85
See infra Diagram 5.
I basically mean “is it a fruit?,” but I have intentionally chosen “one of those” instead, for
its inherent ambiguity and to more closely model the constitutional problem I am discussing. The
grape cannot literally be “one of those” since it is not on the list. But, a navel or mandarin orange
would be “one of those” by a simple first order analogy to the listed orange; a grapefruit would
qualify in a slightly more complex analogy to the orange and the lemon as another citrus; and at a
still greater level of generality and analogy the grape qualifies as a fruit.
Still further levels of generality are possible, e.g. edible plants, plants or all living things,
that would respectively allow a potato, a tree or the family cat to qualify, but it would seem
strange to have given only fruits as examples if the correct category was intended to be that much
more general and different in kind, not just in degree, from the examples.
86 If, as I argue, this theory of rights is correct, it does not follow that there is a talismanic
formula for determining specific rights. In fact, Goedel’s Theorem about complex mathematical
systems is at least evocative in suggesting that in any interesting system of rights the illusory goal
of mechanistically provable rights will always be unreachable. What is required of courts instead,
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This is essentially what I mean by the Meta Up and Down Model.
is the hard, less glamorous work of wrestling conscientiously with imperfect sources and methods
and applying large dollops of patience, experience, humility and judgment.
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Two questions immediately arise about the model proposed in
Diagram 5:
1. Is there any evidence that the Griswold majority had such a
model in mind?
Truthfully, there is only a little, and it is demonstrated as the
opinion moves from the specific concrete examples of the textual rights
clauses cited up to more general “zones of privacy,” and then back
down to apply these zones of privacy to find and endorse the concrete
putative fundamental right claimed under the facts and circumstances of
the case.87 Since my primary aim is not to ascribe credit or blame to
individual opinions or justices for the different analytical models, but to
find plausible models wherever their underpinnings appear, this is not a
serious matter.
2. The second question, of far greater moment, is why would the
framers possibly have chosen this apparently opaque approach to
communicate fundamental rights?
There are a number of plausible answers, and it is useful to return
to a slightly modified version of the fruit analogy to explore them.
Instead of a general Socratic interlocutor and respondent, think of the
participants as a parent or teacher and a child in the process of acquiring
language, specific knowledge and models of how the world works. The
parent or teacher, desirous of teaching the child the ability to find and
recognize fruits (presumably also distinguishing between edible and
inedible ones), could of course present the child with a continuous
string of examples of edible fruits, making clear that they were indeed
edible fruits. That is, after presenting the first six examples, the parent
would present the grape, then a cantaloupe, then a banana, and on and
on, each time making clear that the new object was an edible fruit. (In
the constitutional sense, the analogy would be for the framers, while
drafting the Bill of Rights, to have added a potentially lengthy catalogue
of other examples of rights, including the right contended for in
87 See supra text accompanying notes 55-59 for support that the majority does move up
inductively from concrete examples of rights to more general, meta rights, described as aspects of
“zones of privacy[,]” Griswold, 381 U.S. at 484, of “these penumbral rights of ‘privacy and
repose.’” Id. at 485 (quoting Breard v. Alexandria, 341 U.S. 622, 626 (1951)). The majority then
appears to move back down to deduce, albeit cursorily, a concrete right of marital intimacy
privacy: “Marriage is . . . intimate to the degree of being sacred . . . an association for as noble a
purpose as any involved in our prior decisions.” Griswold, 381 U.S. at 486.
The present case, then, concerns a relationship lying within the zone of privacy created
by several fundamental constitutional guarantees. And it concerns a law which, in
forbidding the use of contraceptives rather than regulating their manufacture or sale,
seeks to achieve its goals by means having a maximum destructive impact upon that
relationship.
Id. at 485.
Or, to put it another way, the Meta principle is fruit, induced from the specific examples which
are all fruits; by looking at these examples and petitioner’s claim, we can see that the instant case
also concerns a fruit.
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Griswold, if they had intended such a claim of right to be protected.)
The problem, of course, is that the teacher’s (and arguably the
constitutional framer’s) job would be endless, especially if fruit was
only one of many topics to be covered, and the child would not be well
equipped to recognize a previously unseen and untaught edible fruit for
what it was.88 The child would soon become bored with this
mechanical rote form of learning and either quit, or construct her own
abstract models of fruit or edible fruit. Lacking experience and
guidance, these models would probably be quite imperfect and both
under- and over-inclusive. Another problem with this teaching method
is that the child is limited to the parent/teacher’s knowledge and is not
equipped to adapt to new facts and circumstances.89 The parent will not
know every fruit in the world, and some fruits may not even have been
found or developed yet.90
A contrasting teaching approach would be to dispense with the
concrete examples entirely and provide the child directly with an
abstract model, that is with the generic characteristics of (edible) fruit.
In principle, this would work wonderfully well and allow the child to
come upon a new object and determine whether it was a fruit by
analysis and deduction. But, in practical application, problems also
abound with this approach. A complete abstract model may not be
available, known or understood. Even if such a model exists, and is
understood by the teacher, it may not be easily communicated,
understood or applied by the child. For complex systems of knowledge,
such as a constitutional system of rights, the problems with a purely
abstract definition divorced from practical experience become more
severe. Consider for example, the human genome project, a research
88
Consider Chief Justice Marshall’s analogous comments in McCulloch v. Maryland:
A constitution, to contain an accurate detail of all the subdivisions of which its great
powers will admit, and of all the means by which they may be carried into execution,
would partake of the prolixity of a legal code, and could scarcely be embraced by the
human mind. It would probably never be understood by the public.
17 U.S. 316, 407 (1819).
89 In the societal analog, this would be a fatal constitutional flaw. Among the most essential
elements of constitutional structure is to frame a society capable of creating, adapting to and
embracing constructive change. Static societies are condemned to fail just as are chaotic ones.
90 This is hardly fanciful given the long history of discovery, horticultural cross-breeding and
more recent dramatic advances in bioengineering. The constitutionally analogous position
confronting the framers is self-evident. And it is primarily for this reason that justices and
commentators have properly attributed an organic, adaptable quality to the Constitution, allowing
it to serve for the ages, rather than suffering the limiting—and ultimately fatal—brittleness of
undue precision and completeness. See, e.g., McCulloch:
This . . . constitution [is] intended to endure for ages to come and, consequently, to be
adapted to the various crises of human affairs . . . . It would have been an unwise attempt
to provide, by immutable rules, for exigencies which, if foreseen at all, must have been
seen dimly, and which can be best provided for as they occur.
17 U.S. at 415 (emphasis added).
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effort to fully map the genetic code of human beings.91 A complete
genetic description of a person, or thorough mastery of the biochemical
theory of his DNA, would hardly help one to actually recognize that
person on the street, or even to know that it was the description of a
person and not a child’s or a foreign enemy’s secret code.
Despite the flaws in both purely mechanistic and purely theoretical
teaching methods, many a parent and child have naturally and easily
transferred and absorbed the essential knowledge about fruit without
being able to give a generic definition of fruit, let alone one that is
scientifically accurate. Humans have a most difficult time with pure
abstract theory divorced from experience.92 They seem to function
much better when their learning is active (where they are involved in
creating and testing their own abstract models and applying them) and
when they are moving back and forth between theory and practice. And
so the child, or even the sophisticated adult, or the constitutional
society, may in the end receive usable knowledge (transcendental
constitutional values and methods for their proper application) most
effectively and accurately when that knowledge is communicated first
through a series of concrete historically relevant examples, followed by
more general theoretical principles. Furthermore, an insistence on the
availability of at least some historically rooted concrete examples
reduces the risk of a massive mistake of miscommunication. Jurassic
Park would have us believe that a few tweaks to the abstract genetic
code strings could turn an embryo from current fauna into a dinosaur.93
In other words, a little mistake in the abstract definition, or in its
application, could lead to a big mistake in result. Yet no child having
seen and experienced a few examples, would mistake a tree for a fruit,
or a dinosaur for a man.
91 See Human Genome Project Information website, http://www.ornl.gov/sci/techresources/
Human_Genome/home.shtml.
92 The framers understood this truth, and limited the judicial function to concrete cases or
controversies, U.S. CONST. art. III, § 2, inter alia, prohibiting the courts from issuing purely
theoretical advisory opinions; see Rescue Army v. Mun. Ct. of Los Angeles, 331 U.S. 549, 568
(1947) (“The earliest exemplifications [of the courts being restricted to concrete situations] arose
in the Court’s refusal to render advisory opinions.”); see also OLIVER WENDELL HOLMES, JR.,
THE COMMON LAW 1 (Dover Publications 1991) (wherein Holmes makes arguably his most
famous statement: “It is something to show that the consistency of a system requires a particular
result, but it is not all. The life of the law has not been logic; it has been experience.”); William J.
Brennan, Jr., Reason, Passion, and ‘the Progress of the Law’, 10 CARDOZO L. REV. 3, 10 (1988)
(“[H]uman experience [is] the realm in which law ultimately operates and has meaning” and
“awareness of the range of human experience, is therefore not only an inevitable but a desirable
part of the judicial process”).
93 MICHAEL CRICHTON, JURASSIC PARK (Ballantine Books 1990); see also JARED DIAMOND,
THE THIRD CHIMPANZEE: THE EVOLUTION AND FUTURE OF THE HUMAN ANIMAL 23
(HarperCollins Publishers 1992) (noting that we as humans share 98.4% of our DNA with
chimps, and therefore the visible distinctions between us “must be concentrated in a mere 1.6
percent of our genetic program”).
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All of this suggests that the best approach to defining and
communicating a workable system of fruit or rights would involve a
combination of concrete examples94 and more abstract characteristics or
values,95 with a feedback mechanism between them to allow the child or
the constitutional society to continually refine and develop theory and
check reality.96 The Meta Up and Down Model conforms to this aspect
of human intelligence and therefore has a lot to recommend it, though
its derivation from the Griswold majority opinion is a bit tenuous. To
the extent that the model is based solely on the Griswold majority
opinion, it will prove too limited. The defect is in relying only on the
framers’ concrete examples and eschewing the more abstract, but still
textual, values that we should expect to find in the Constitution if this
model is indeed true to the spirit and design of our constitutionalism.97
These more “conceptual” kinds of provisions (to borrow the language of
Ronald Dworkin),98 like liberty and due process, privileges and
94 Such as the specific provisions of the Bill of Rights. Counterexamples are also useful to
help demark the outer boundaries of protected rights. This is what the Justices have in mind
when they refer to practices, texts and traditions considered and rejected during the founding
period. See Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting) (stating that the
search for unenumerated fundamental rights requires “regard [for] what history teaches are the
traditions from which [this country] developed as well as the traditions from which it broke”).
95 See supra note 88 quoting Chief Justice Marshall in McCulloch v. Maryland. Justice
Marshall continued:
[The constitution’s] nature, therefore, requires, that only its great outlines should be
marked, its important objects designated, and the minor ingredients which compose
those objects be deduced from the nature of the objects themselves. That this idea was
entertained by the framers of the American constitution, is not only to be inferred from
the nature of the instrument, but from the language.
McCulloch v. Maryland, 17 U.S. 316, 407 (1819).
96 Stephen Kanter, Dealing With Death: The Constitutionality of Capital Punishment in
Oregon, 16 WILLAMETTE L. REV. 1, 33-34 (1979) [hereinafter Kanter, Dealing With Death]:
Every constitution must be read as a whole. When this is done, the structure of the
constitution and the juxtaposition of different provisions will create a feedback
mechanism that will have the effect of breathing substantive form into individual
provisions that may, by themselves and taken out of context, seem to be formless.
See also infra notes 324 and 356-358 and accompanying text.
97 See John Marshall’s great structural exegesis of the sources and limits of federal and state
power in McCulloch for an invocation of the spirit of the constitution: “Let the end be legitimate,
let it be within the scope of the constitution, and all means . . . which . . . consist with the letter
and spirit of the constitution, are constitutional.” 17 U.S. at 421 (emphasis added).
98 See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 134-36 (Harvard University Press
1977). Dworkin notes that certain clauses of the Constitution appeal to “moral concepts,” or
general ideas and principles, as opposed to “particular conceptions,” or specific examples of how
these principles should be applied. Id.; see also RONALD DWORKIN, LAW’S EMPIRE 71 (Harvard
University Press, 1986) (discussing the difference between “concept” and “conception” as “a
contrast between levels of abstraction at which the interpretation of the practice can be studied”).
Other authors refer to such clauses as “open-textured.” See JOHN HART ELY, DEMOCRACY AND
DISTRUST: A THEORY OF JUDICIAL REVIEW 13 (Harvard University Press 1980) (describing
“open-textured” provisions as those which “seem . . . insistently to call for a reference to sources
beyond the document itself and a ‘framer’s dictionary’”). I prefer Dworkin’s language, as I agree
with him that while these types of constitutional provisions refer to more abstract, general or meta
principles, they are not vague or ambiguous in expressing their concepts and underlying
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immunities, equal protection, cruel and unusual, and unreasonable, do
appear in the Constitution, and I will say more about them and their
relevance to an improved Up and Down Model later.99
II. TWO DIFFERENT CONCURRING VIEWS IN GRISWOLD
The analytical frameworks discussed in the concurring opinions of
Justices Goldberg and Harlan diverge markedly from the majority
opinion and from each other. Each opinion, although subject to its own
limitations, offers something new and useful toward constructing a valid
comprehensive theoretical model for identifying unenumerated
fundamental rights.
A.
The Goldberg Variations:100 A Concurring Opinion
and the Ninth Amendment
Justice Goldberg, concurring in Griswold,101 joined the majority’s
opinion and judgment.102 In addition, he articulated variations from the
majority opinion, relying heavily on the Ninth Amendment103 as an
explicit textual signpost authorizing the Court to search for judicially
enforceable fundamental rights outside the confines of the specific
provisions of the Bill of Rights.104
Contrary to the claims of his critics,105 Justice Goldberg does not
transcendental constitutional values.
99 See infra notes 329 and 355-356 and accompanying text.
100 With apologies to Bach.
101 Griswold v. Connecticut, 381 U.S. 479, 486-99 (1965). Chief Justice Warren and Justice
Brennan joined Justice Goldberg’s concurring opinion.
102 Id. at 486.
103 “The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.” U.S. CONST. amend. IX. Justice Douglas, after his
brief discussion of the creation of zones of privacy by the penumbras of the First, Third, Fourth,
and part of the Fifth Amendments, also quoted the Ninth Amendment in full and cited it, but, in
contrast to Justice Goldberg, said nothing further about it and did not explain in what way, if any,
he was relying on it in his majority opinion. Griswold, 381 U.S. at 484.
104 See infra Diagram 6.
105 See, e.g., Raoul Berger, The Ninth Amendment, 66 CORNELL L. REV. 1, 2 (1981) (claiming
that “Justice Goldberg would transform the ninth amendment into a bottomless well in which the
judiciary can dip for the formation of undreamed of ‘rights’ in their limitless discretion”); see
also Thomas B. McAffee, A Critical Guide to the Ninth Amendment, 69 TEMP. L. REV. 61, 61 n.
7 (1996) (refusing to resolve the question of whether Justice Goldberg viewed the ninth
amendment as an actual “source of fundamental constitutional rights, or merely as a textual
allusion to nontextual rights,” based upon an erroneous assertion that Justice Goldberg’s opinion
is uncertain as to which of these two positions it takes); Burt Neuborne, “The House Was Quiet
and the World Was Calm The Reader Became the Book”: Reading the Bill of Rights as a Poem:
An Essay in Honor of the Fifthieth Anniversary of Brown v. Board of Education, 57 VAND. L.
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contend that the Ninth Amendment is itself a repository of non-textual,
specific rights,106 but rather that it is an important marker telling the
Court that there are rights worthy of judicial protection beyond those
specifically contained in the Bill of Rights.107 In this view, the Ninth
Amendment serves as an “Etc.” clause after the first eight amendments,
proclaiming other rights exist out there somewhere. It is as if the first
eight amendments are house addresses progressing along a street toward
an apparent cul-de-sac. When the driver stops the Court’s car after the
last house, the justices find a prominent sign pointing to meandering
walking paths spreading out from the apparent cul-de-sac, with the
words: “There are more legitimate houses out there. You are authorized
to take the constitutional footpaths through the woods to seek them
out.”
REV. 2007, 2039 n. 101 (2004) (contending that Justice Goldberg’s opinion “is more consistent
with” construing “the Ninth Amendment as a source of substantive rights”).
106 Griswold, 381 U.S. at 492 (“Nor do I mean to state that the Ninth Amendment constitutes
an independent source of rights protected from infringement by either the States or the Federal
Government.”).
107 Justice Goldberg includes at least seven separate statements to this effect in his opinion,
thus emphasizing his viewpoint: “The language and history of the Ninth Amendment reveal that
the Framers of the Constitution believed that there are additional fundamental rights, protected
from governmental infringement, which exist alongside those fundamental rights specifically
mentioned in the first eight constitutional amendments.” Id. at 488; “These statements of
Madison and Story make clear that the Framers did not intend that the first eight amendments be
construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the
people.”
Id. at 490; “[A] judicial construction that this fundamental right is not
protected . . . because it is not mentioned in explicit terms by one of the first eight amendments or
elsewhere in the Constitution would violate the Ninth Amendment[.]” Id. at 491-92 (emphasis
added); “[T]he Ninth Amendment shows a belief of the Constitution’s authors that fundamental
rights exist that are not expressly enumerated[.]” Id. at 492; “The Ninth Amendment simply
shows the intent of the Constitution’s authors that other fundamental personal rights should not be
denied . . . or disparaged in any other way simply because they are not specifically listed in the
first eight constitutional amendments.” Id. at 492; “[T]he Ninth Amendment, in indicating that
not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in
showing the existence of other fundamental personal rights[.]” Id. at 493; “[T]he Ninth
Amendment expressly recognizes [that] there are fundamental personal rights . . . which are
protected from abridgment by the Government though not specifically mentioned in the
Constitution.” Id. at 496.
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This interpretation of the Ninth Amendment is rather modest and
does not offer a talismanic or mechanistic solution to any specifically
asserted right or actual case. Yet it plays an important textual role in
undergirding theories, inter alia, of Super-Penumbral, Up and Down,
fundamental, unenumerated, open-textured, natural, or organic rights.
And it frees our constitutional jurisprudence from the competing, overly
constrained, strict textualist and strict originalist theories of rights.108
Furthermore, the use of the word “construed” in the Ninth
Amendment supports a central institutional role for the courts in finding
108 Strict textualists maintain that the court should rely only on the letter of the constitutional
text when adjudicating constitutional claims. (In the popular vernacular, strict textualists and
strict originalists are cousins to strict constructionists). As with any theory of interpretation, there
are gradations of approach among adherents as to how rigidly the theory should be applied. On
the current Supreme Court, Justices Scalia and Thomas champion a moderately strict version of
textualism and originalism. They frequently reject claims of right that they do not perceive to be
adequately grounded (or hardwired) in the text. See, e.g., Cruzan v. Director, Mo. Dep’t of
Health, 497 U.S. 261, 300 (1990) (Scalia, J., concurring) (rejecting a right-to-die claim because
“the Constitution has nothing to say about the subject”); Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833, 980 (1992) (Scalia, J., dissenting) (rejecting a woman’s right to an abortion
because “the Constitution says absolutely nothing about it”); ANTONIN SCALIA, A MATTER OF
INTERPRETATION: FEDERAL COURTS AND THE LAW (Amy Gutmann ed., 1997); Nancie G.
Marzulla, The Textualism of Clarence Thomas: Anchoring the Supreme Court’s Property Rights
Jurisprudence to the Constitution, 10 AM. U. J. GENDER SOC. POL’Y & L. 351 (2002) (discussing
Justice Thomas’ fidelity to the text of the Constitution); see also Caleb Nelson, What is
Textualism?, 91 VA. L. REV. 347, 348 (2005); John F. Manning, Textualism and Legislative
Intent, 91 VA. L. REV. 419 (2005). See generally Symposium: Textualism and the Constitution,
66 GEO. WASH. L. REV. 1081, 1081-1394 (1998) (containing defenses and critiques of textualism
in relation to a variety of constitutional issues by a number of leading constitutional theorists);
Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204 (1980),
offers a particularly effective critique of strict originalism and strict textualism, but Professor
Brest goes too far in calling for true non-originalism in some cases. Id. at 204-05, and 224-38.
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and enforcing these additional rights.109 In fact, that amendment’s text,
to wit “shall not be construed[,]” combined with the Article VI
Supremacy Clause assertion that the Constitution is “the supreme Law
of the Land[,]” are among the most direct of the framers’ statements in
the Constitution supporting judicial review power for the courts,
especially relating to the enforcement of individual rights against the
contrary decisions of the majoritarian branches of government.
Given the congruence of the Sign Post Interpretation Model with
the text of the Ninth Amendment, it is surprising how mightily critics of
the Goldberg opinion strive to undercut it, often setting up straw
interpretations of the Ninth Amendment that go way beyond the
concepts represented by the model in order to knock them down.110 A
cynic might conclude that some of the critics are disingenuous and that
their real agenda is to limit active judicial efforts to search for and
enforce individual rights, regardless of inconvenient constitutional facts
like the Ninth Amendment. But the motivation of a particular theory’s
critics is immaterial. Instead, the task is to explore possible reasonable
objections to the Ninth Amendment Model and determine whether these
objections withstand analysis.
1.
The Original Purpose Objection
The Constitution of the United States, drafted in 1787 and ratified
in 1789, did not contain a bill of rights. There was a serious split of
109 Construing is the natural business of courts, especially in the American system, and much
less so for legislatures, executive officials, the states or the people. Chief Justice Marshall made
much the same point as an institutional justification for judicial review when he said: “It is
emphatically the province and duty of the judicial department to say what the law is.” Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
110 See supra notes 105 and 106. Another one of the straw arguments, often repeated, is that
Justice Goldberg was “incorporating” the Ninth Amendment against the States; see, e.g., Raoul
Berger, The Ninth Amendment, 66 CORNELL L. REV. 1, 12 (1981) claiming that Justice Goldberg
was incorporating the Ninth Amendment and stating:
Possibly I do not appreciate the subtle differentiation between ‘incorporation’ of the
ninth amendment in the fourteenth and enforcement of unspecified rights ‘retained’
under the ninth by resort to the ‘liberty’ of the fourteenth, but to my mind the
distinction is purely semantic. Let me therefore reiterate that the argument that the Bill
of Rights [including the ninth amendment] was incorporated in the fourteenth
amendment is without historical warrant[.]
Id.; see also Russell L. Caplan, The History and Meaning of the Ninth Amendment, 69 VA. L.
REV. 223, 261-62 (1983) (arguing that the Ninth Amendment was intended to protect the state
bills of rights, and therefore it is not “logically possible to ‘incorporate’ the ninth amendment
through the fourteenth to apply as a prohibition against the states”); Lawrence E. Mitchell, The
Ninth Amendment and the ‘Jurisprudence of Original Intention’, 74 GEO. L. J. 1719, 1730-31
(1986). Justice Goldberg anticipated and responded directly to these charges that he was
incorporating the Ninth Amendment in his Griswold concurrence: “I do not mean to imply that
the Ninth Amendment is applied against the States by the Fourteenth.” Griswold v. Conneccticut,
381 U.S. 479, 492 (1965).
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views among the framers as to whether such a listing of rights was
necessary, desirable or even dangerous. Alexander Hamilton took the
most prominent position against such provisions and argued in the
Federalist Papers that such a bill of rights would be unnecessary since
the federal government was established by the Constitution as a limited
government confined to its constitutionally delegated powers, and those
powers did not extend to the infringement of individual rights.111
Justice Goldberg also quoted Hamilton in the same source for
Hamilton’s further, and more serious, argument against a bill of rights:
that such provisions “would even be dangerous.”112 In Hamilton’s
view, since thou shalt not provisions of a bill of rights would “contain
various exceptions” to powers that the federal government
constitutionally did not have in the first place, the absence of other thou
shalt not limitations on the federal government might imply that the
government had other dangerous powers not delegated by the
Constitution.113 James Madison disagreed with Hamilton, and argued
for inclusion of a bill of rights.114 The ratification struggle proved the
political necessity for a declaration of constitutional rights, and
Madison’s view prevailed over Hamilton’s objections. Proponents of
the Constitution promised the states’ ratifying conventions that if they
voted to approve the Constitution, the first Congress would propose and
refer bill of rights amendments.
If the Ninth, or the Ninth and the Tenth, Amendment(s) were
included in the Bill of Rights solely to address the problem presented by
Hamilton’s second argument, that a Bill of Rights might dangerously
inflate federal government powers,115 an objection to any interpretation
111 See THE FEDERALIST NO. 84, at 578-79 (Alexander Hamilton) (Jacob E. Cooke ed., 1961),
cited by Justice Goldberg for Hamilton’s position on this matter. 381 U.S. at 489 n. 4.
112 Id.
113 Id.
114 Madison favored inclusion for a number of reasons. He stated that bills of right “have a
tendency to impress some degree of respect for them, to establish the public opinion in their
favor, and rouse the attention of the whole community,” and were thus one means to check the
unjust acts of a majority faction. James Madison, Speech to the House Explaining His Proposed
Amendments With Notes for the Amendments Speech, reprinted in THE RIGHTS RETAINED BY
THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT, 58 (Randy Barnett, ed..
George Mason University Press 1989). Madison noted that they were “highly politic, for the
tranquility of the public mind, and the stability of the Government[.]” Id. at 61. But Madison did
not favor a bill of rights for merely symbolic or popular reasons; importantly he also understood
and desired that they would empower the courts and add rights that would be judicially
enforceable.
If [provisions of rights] are incorporated into the constitution, independent tribunals of
justice will consider themselves in a peculiar manner the guardians of those rights; they
will be an impenetrable bulwark against every assumption of power in the legislative
or executive; they will be naturally led to resist every encroachment upon rights
expressly stipulated for in the constitution by the declaration of rights.
Id. at 60-61.
115 Justice Stewart would adopt just such a limited view of the Ninth and Tenth Amendments.
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of the Ninth Amendment going beyond a reaffirmation of the principle
that the federal government is limited to its delegated powers116 would
have to be taken seriously. But such a demonstration is not tenable.
The Tenth Amendment by itself reaffirms the limited nature of the
national government,117 and there would be no need for the Ninth
Amendment if this had been the framers’ only goal.118 Even if the
framers had been far less parsimonious with constitutional words than
they were, and wanted to make doubly sure that the listing of some
rights did not lead to implied flip-side governmental powers from the
absence of other express limitations, the second clause of the Ninth
Amendment would logically be written as follows: “and the absence of
other express limitations on the United States shall not be construed to
expand the powers of the United States.” Instead the founders chose
Griswold, 381 U.S. at 529-30 (Stewart, J., dissenting).
But to say that the Ninth Amendment has anything to do with this case is to turn
somersaults with history. The Ninth Amendment, like its companion the Tenth, which
this Court held ‘states but a truism . . .’ was framed by James Madison and adopted by
the States simply to make clear that the adoption of the Bill of Rights did not alter the
plan that the Federal Government was to be a government of express and limited
powers.
Id. Justice Stewart takes too narrow a view of federal power. As McCulloch makes clear, the
Constitution delegates to the federal government, unlike the national government under the
Articles of Confederation, implied as well as expressly enumerated powers. See McCulloch v.
Maryland, 17 U.S. 316, 406 (1819).
116 Such as the Sign Post Interpretation Model. It is apparent that this theory of the Ninth
Amendment, and for that matter the adoption of the first eight amendments, go beyond a
structural reaffirmation of the limited character of the federal government. For while Hamilton is
surely correct that the Constitution gives the government no explicit power to “[restrain] the
liberty of the press,” THE FEDERALIST NO. 84, at 579 (Alexander Hamilton) (Jacob E. Cooke, ed.,
1961), cited by Justice Goldberg in Griswold, 381 U.S. at 490 n. 4, he was far too optimistic in
asserting that the national government was therefore not a threat to this individual liberty. The
federal government might well infringe the free press right, other explicit rights in the first eight
amendments, or additional individual rights, through means justified by the necessary and proper
clause in carrying out its great enumerated powers, U.S. CONST. art. I, § 8, unless those means
were constrained by the Bill of Rights, other specific constitutional prohibitions, and
unenumerated rights made legitimate by the Sign Post Interpretation Model. Before rejecting
Hamilton’s first argument that a bill of rights was “unnecessary,” one must recognize that he
might retort that Congressional means that would violate unstated individual rights would be
neither “necessary” nor “proper,” and would be subject to judicial rejection even without a bill of
rights. To the extent one accepts this structuralist argument, the necessary and proper clause itself
serves as an additional marker for non-textual individual rights, bolsters Justice Goldberg’s view
of the Ninth Amendment and leaves the Sign Post Interpretation Model intact.
117 Madison proposed a declaration that “the powers not therein delegated should be reserved
to the several States,” 1 Annals of Cong. 458-459 (Joseph Gales, ed., 1789), as a specific response
to Hamilton’s qualms, and to give reassurance that the federal government would remain limited,
as initially intended, after the adoption of a bill of rights. This declaration was enacted as the
Tenth Amendment, which provides: “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” U.S. CONST. amend. X.
118 “It cannot be presumed that any clause in the constitution is intended to be without effect;
and therefore such a construction is inadmissible, unless the words require it.” Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 174 (1803).
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broad, clear language specifying that while some powers not delegated
to the national government are reserved to the states and others to the
people,119 individual rights are retained by the people alone and it is no
part of any power of government—national, state, or local— to “deny or
disparage” these rights. The Ninth Amendment reads in full, “The
enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.”120
There is more beyond this compelling textual rejection of the
original purpose objection to the Sign Post Interpretation Model. James
Madison, the principal architect of the Bill of Rights (including the
Ninth and Tenth Amendments), believed that there were individual
rights beyond those stated in the first eight amendments;121 that given
the finite nature of language, it was impossible to list them all,122 and
that part of the function of the Ninth Amendment was to make clear that
such rights existed and were not left unprotected.123 There is little
doubt, given the unambiguous language of the Ninth Amendment and
the context of the Declaration of Independence’s assertion “that all
men . . . are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty, and the pursuit of Happiness[,]”124
119
120
121
U.S. CONST. amend. X.
U.S. CONST. amend. IX.
In presenting his proposal for what became the Ninth Amendment to the first Congress,
Madison said:
It has been objected also against a bill of rights, that, by enumerating particular
exceptions to the grant of power, it would disparage those rights which were not
placed in that enumeration; and it might follow by implication, that those rights which
were not singled out, were intended to be assigned into the hands of the General
Government, and were consequently insecure. This is one of the most plausible
arguments I have ever heard urged against the admission of a bill of rights into this
system[.]
Griswold, 381 U.S. at 489 (quoting I Annals of Congress 439) (emphasis added).
122 Madison recognized that “no language is so copious as to supply words and phrases for
every complex idea.[.]” Griswold, 381 U.S. at 488 n.3 (Justice Goldberg quoting The
FEDERALIST NO. 37, at 236 (James Madison) (Jacob E. Cooke ed., 1961)); see also Randy E.
Barnett, Reconceiving the Ninth Amendment, 74 CORNELL L. REV. 1, 35 (1988) (“it is simply
impossible to specify in advance all the rights we have”).
123 See supra note 121. Madison completed his thought:
This is one of the most plausible arguments I have ever heard urged against the
admission of a bill of rights into this system; but, I conceive, that it may be guarded
against. I have attempted it, as gentlemen may see by turning to the last clause of the
fourth resolution [which became the Ninth Amendment].
Griswold, 381 U.S. at 489-90 (quoting I Annals of Congress 439).
124 THE DECLARATION OF INDEPENDENCE (U.S. 1776). The Declaration makes clear by its
syntax that not even the cornucopia of rights conveyed by Life, Liberty and Pursuit of Happiness
exhausts the list of unalienable rights. The Declaration is highly relevant in gauging what those
ratifying the Bill of Rights, and the Ninth Amendment in particular, understood. It set forth the
principles that many of the ratifiers themselves had fought for less than 15 years earlier in
founding the new nation; it reflected the philosophical and legal thought of the times; and it is
also noteworthy that Thomas Jefferson drafted the Declaration, while his protege and political
and legal soulmate, James Madison, drafted the Ninth Amendment.
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about what the people and their ratifying conventions and legislatures
understood and approved.125 In sum, the text and the ratified
Madisonian purpose for the Ninth Amendment convincingly rebut the
original purpose objection and support the Sign Post Interpretation
Model.126
2.
Federalism Objections
The Bill of Rights originally constrained only the federal
government, and had no applicability to the states. The framers’ intent
in this regard is clear and Chief Justice Marshall relied on it in Barron v.
Baltimore, holding that the Fifth Amendment did not pertain to actions
of a State against an individual.127 It does not follow that the drafters of
125 For further endorsement of the historical view that the Ninth Amendment was intended to
affirm the existence of unenumerated rights, see, e.g., Randy E. Barnett, supra note 122, at 34-35
(advocating, based on Madison’s writings, a “power-constraint” conception of the Ninth
Amendment, which holds that rights limit the exercise of government powers in some fashion, as
opposed to a “rights-powers” conception, which views rights as limited only to the mirror image
of powers.
In a classical liberal theory of rights, rights define a sphere of moral jurisdiction that
persons have over certain resources in the world—including their bodies. This
jurisdiction establishes boundaries within which persons are free to do what they
wish . . . Given this conception of rights—a conception in keeping with that held at the
time of the framing of the Ninth Amendment—it is simply impossible to specify in
advance all the rights we have.
Id. at 34-35.
See Calvin R. Massey, Federalism and Fundamental Rights: The Ninth Amendment, 38
HASTINGS L.J. 305, 343-44 (1987) (contending that the Ninth Amendment protects both “positive
rights,” grounded in state law, and “natural rights,” grounded in the Framers’ philosophy);
Suzanna Sherry, Commentary, The Ninth Amendment: Righting an Unwritten Constitution, 64
CHI.-KENT L. REV. 1001 (1988) (asserting that the Ninth Amendment was intended to make
unenumerated rights judicially enforceable); see also Chase J. Sanders, Ninth Life: An
Interpretive Theory of the Ninth Amendment, 69 IND. L.J. 759 (1994).
126 There is something ironic about the effort some commentators, who consider themselves
strict textualists and originalists, have put into robbing the Ninth Amendment—an explicit
constitutional provision, authored by one of the country’s greatest political theorists—of any
significance or power. For somewhat similar observations, see Sanford Levinson, Symposium,
Constitutional Rhetoric and the Ninth Amendment, 64 CHI.-KENT L. REV. 131, 142 (1988)
(noting that “[t]hose who emphasize text and history . . . seem to be hoist on their own petard”
when dealing with the Ninth Amendment); Philip B. Kurland, Bork: The Transformation of a
Conservative Constitutionalist, 9 CARDOZO L. REV. 127, 131-33 (1987) (describing Bork’s
theory of “unlimited” government powers against individuals, in light of the Ninth Amendment
and the history surrounding it, as based on a “myopic” reading of history).
Parenthetically, even if a strict originalist were somehow able to show a narrow specific
original purpose for the Ninth Amendment, the general expansive language of the Ninth
Amendment chosen by the framers would require a broader interpretation and application. For
example, compare the broad modern reach of the Equal Protection Clause with the claim that its
original purpose was restricted to protecting only the former African-American slaves, or that it
permitted anti-miscegenation statutes or school segregation. See infra notes 274, 301 and 341,
and accompanying text.
127 Barron v. Baltimore, 32 U.S. 243 (1833).
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our Constitution believed that the states had unfettered power to
infringe individual rights. The states had constitutional bills of rights,
often predating the federal Bill of Rights, and court systems for
enforcement. The framers had confidence, sadly misguided in some
respects,128 that the individual states would adequately protect their own
citizens’ rights.129
History establishes that, for this reason, the Bill of Rights,
including the Ninth Amendment, was not intended to limit individual
state power in any respect. No problem is presented for the Sign Post
Interpretation Model when its contribution is limited to the derivation of
additional individual rights judicially enforceable against only the
federal government.130 Facially, however, there is a serious federalism
objection regarding the use of the Ninth Amendment to restrain state
power under the pre-Civil War constitution.131 This potential objection
to the Sign Post Interpretation Model is not as strong as it first appears.
The model merely tells us that there are rights beyond those specifically
listed in the first eight amendments that the Court is authorized to
search for, find and enforce. The Ninth Amendment and the model do
not tell us—nor do the first eight amendments—that these rights are
enforceable against state power, and therefore the objection is illusory.
Once we agree on the existence of a textual or not clearly textual federal
constitutional right, whether it is enforceable against the states as well
as the federal government is an independent question that does not
depend upon the Ninth Amendment or the Sign Post Interpretation
128 See, eg., Brown v. Mississippi, 297 U.S. 278 (1936). See generally RUSSEL B. NYE,
FETTERED FREEDOM: CIVIL LIBERTIES AND THE SLAVERY CONTROVERSY, 1830-1860 (rev. ed.
1964)
129 For example, Oliver Ellsworth stated at the Constitutional Convention that he “turned his
eyes [to State governments] for the preservation of his rights.” 1 MAX FARRAND, THE RECORDS
OF THE FEDERAL CONVENTION OF 1787 at 492 (1911), and James Wilson, another architect of
the Constitution, said at a lecture in 1791, “our [State] assemblies were chosen by ourselves; they
were the guardians of our rights, the objects of our confidence,” James Wilson, Of Government,
in 1 THE WORKS OF THE HONOURABLE JAMES WILSON L.L.D. 292-93 (Robert Green
McCloskey ed., 1967).
The Framers were not completely sanguine even in 1787, and they felt it necessary to
prohibit the states from inflicting “bill[s] of attainder, ex post facto law[s], or law[s] impairing the
obligation of contracts” on their citizens, U.S. CONST. art. I, § 10; see also U.S. CONST. art. IV §
4 (“The United States shall guarantee to every state in this union a republican form of
government”). As the Art. IV § 2, Privileges and Immunities Clause demonstrates, the founders
had less confidence that the States could be entrusted with protection of the rights of citizens of
their sister States.
130 It would be interesting to know if those critics of Goldberg’s Ninth Amendment analysis
who base their criticisms on federalism grounds would drop their objections and permit the Court
to derive and enforce unenumerated individual rights against the federal government.
131 If Justice Black, for example, had confined his comments to the pre-Civil War
constitutional period, he would have been correct in contending that the Ninth Amendment was
not to be “used as a weapon of federal power to prevent state legislatures from passing laws they
consider appropriate to govern local affairs.” Griswold v. Connecticut, 381 U.S. 479, 518-20
(1965) (Black, J., dissenting).
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Model for its resolution.
The Civil War and the constitutional amendments that followed132
dramatically altered the shape of our federalism. They removed the
question of slavery from the state political arena and, at least officially,
ended the great moral disjunction between the Declaration’s promise of
equality133 and the Constitution’s permission of this evil institution.134
The first clause of the first section of the Fourteenth Amendment
broadly settled the question of national and state citizenship, and
removed the power altogether from the states to deny citizenship to their
residents who were national citizens.135 The Fourteenth Amendment
also revoked much of the Constitution’s trust in the state’s protection of
her inhabitants’ political and civil rights.136 Section 1 imposed three
additional limitations on the states, forbidding any state from abridging
the privileges or immunities common to all citizens of the United States;
depriving any person (citizen or not) of life, liberty, or property without
due process of law; or denying to anyone within the state’s jurisdiction
the equal protection of that state’s laws.137
Federalism, even after the Civil War and the ratification of the
Thirteenth, Fourteenth, and Fifteenth Amendments, contemplates states
protecting certain individual rights that may not be protected under the
federal constitution.138 Similarly, there is no logical reason precluding
132
133
U.S. CONST. amends. XIII (1865), XIV (1868), and XV (1870).
“We hold these truths to be self-evident, that all men are created equal [.]” THE
DECLARATION OF INDEPENDENCE, para. 2 (U.S. 1776).
134 U.S. CONST. art. I, § 2 (“Representatives . . . shall be apportioned . . . according to . . .
numbers, which shall be determined by adding to the whole number of free persons, . . . three
fifths of all other Persons”); U.S. CONST. art. I, § 9 (“The . . . importation of such persons as any
of the states now existing shall think proper to admit, shall not be prohibited by the Congress
prior to [1808]”); U.S. CONST. art. V (making the previous provision immutable and not subject
to amendment until at least 1808); U.S. CONST. art. IV, § 2 (“No person held to service or labor
in one State . . . escaping into another, shall . . . be discharged from such service or labor, but
shall be delivered up on claim of the party to whom such service or labor may be due”); see also
Dred Scott v. Sandford, 60 U.S. 393 (1857).
135 U.S. CONST. amend. XIV, § 1 (“All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they
reside.”) (emphasis added).
136 Although the Bill of Rights was not intended to apply against the states, see supra note 127
and accompanying text, the original Constitution did impose some direct limitations on State
power over the individual, and on the State’s internal political structure. See supra note 129.
137 U.S. CONST. amend. XIV, § 1
All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they reside. No state
shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
138 This aspect of federalism has long been recognized within the context of the “states-aslaboratories” metaphor. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (“It is one
of the happy accidents of the federal system that a single courageous State may, if its citizens
choose, serve as a laboratory; and try novel social and economic experiments without risk to the
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some negative checking rights, or limitations, against the federal
government that would not apply against the states.139 Once a federal
constitutional right is found, the question of whether it also limits state
power depends primarily upon its character. The proper inquiry is
whether the right is a privilege or immunity of citizenship of the United
States, or a life, liberty or property interest whose deprivation violates
due process, or whether a state denies equal protection in failing to fully
embrace the right, or whether there is some other provision of the
Constitution or structural principle of federalism applying the right to
the states.
These are subtle questions that, among other issues, spawned the
complicated incorporation debate on the Supreme Court regarding the
applicability of the various provisions of the first eight amendments to
the states. But, as noted earlier, the Ninth Amendment merely points to
finding federal constitutional rights and does not answer the federalism
question of whether such rights are enforceable against the states. The
Sign Post Interpretation Model does not depend upon one’s position on
the contending views of the controversial incorporation debate, or on
the overall correct interpretation of the individual clauses of Section 1
of the Fourteenth Amendment, and it certainly does not suggest or
rest of the country”); Hans A. Linde, First Things First: Rediscovering the States’ Bill of Rights,
9 U. BALT. L. REV. 379 (1980). Justice Brennan was especially influential in encouraging state
courts to enforce greater protections for individual rights under their own constitutions, no doubt
in part as a reaction to the Burger Court’s more conservative jurisprudence. See, e.g., William J.
Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489,
491 (1977) (“State constitutions, too, are a font of individual liberties, their protections often
extending beyond those required by the Supreme Court’s interpretation of federal law.”); William
J. Brennan Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians
of Individual Rights, 61 N.Y.U. L. REV. 535, 548 (1986) (“Between 1970 and 1984, state courts,
increasingly reluctant to follow the federal lead, have handed down over 250 published opinions
holding that the constitutional minimums set by the United States Supreme Court were
insufficient to satisfy the more stringent requirements of state constitutional law”). Specific
examples include states granting broader protection for speech, as in Pruneyard Shopping Ctr. v.
Robbins, 447 U.S. 74 (1980) and State v. Henry, 732 P.2d 9 (Or. 1987). There are also decisions
granting broader protections to the criminally accused; and some decisions granting greater
equality and privacy rights. See, e.g., South Dakota v. Opperman, 247 N.W.2d 673 (S.D. 1976)
(granting greater search and seizure protection to individuals under the state constitution);
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (striking on both equality and
fundamental rights grounds the Massachusetts ban on same sex marriage).
139 See, e.g., Hurtado v. California, 110 U.S. 516 (1884) (holding that the Fifth Amendment
requirement of indictment by grand jury is not applied to the states by the Due Process Clause);
Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211 (1916) (holding that the Seventh
Amendment requirement of a unanimous verdict in a civil jury trial does not apply to the states).
There are also a few rights protected by the federal constitution against state power, but not
against federal power. See, e.g., U.S. CONST. art. I, § 10 (“No State shall . . . pass any . . . law
impairing the obligation of contracts”); U.S. CONST. amend. XIV, § 1 (“No State shall . . . deny
to any person within its jurisdiction the equal protection of the laws”). There is no comparable
constitutional text so limiting the federal government, but the Court has found analogous, though
more limited, restraints on the federal government, relying on the Fifth Amendment Due Process
Clause.
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depend upon a notion that the Ninth Amendment itself is incorporated
by the Fourteenth Amendment.140 This federalism shot against the
Model then misses its mark.
The remaining objection from federalism is somewhat similar, but
distinct. It begins with the unimpeachable premise that the Ninth
Amendment was intended to limit federal governmental power. The
argument proceeds to claim that it would therefore be unseemly to use
that amendment to expand federal power. The objection is based on the
assumption that expanding federally protected individual rights as
limitations on the states constitutes an expansion of federal power (and
not just a limitation on state power), at least when these rights are
enforced by federal courts.141 It would be interesting to ask these critics
of Justice Goldberg if they would drop their objections if state courts,
rather than federal courts, derived the federal constitutional rights to
apply against their own state’s challenged legislative, executive,
administrative or initiative petition actions.142
140 Justice Goldberg specifically denied that his interpretation of the Ninth Amendment
constituted incorporation of that amendment. Griswold v. Connecticut, 381 U.S .479, 492 (1965)
(“I do not mean to imply that the Ninth Amendment is applied against the States by the
Fourteenth”).
141 Justice Black, for example, writes:
That Amendment was passed, not to broaden the powers of this Court or any other
department of the ‘the General Government,’ but, as every student of history knows, to
assure the people that the Constitution in all its provisions was intended to limit the
Federal Government . . . . This fact is perhaps responsible for the peculiar phenomenon
that for a period of a century and a half no serious suggestion was ever made that the
Ninth Amendment, enacted to protect state powers against federal invasion, could be
used as a weapon of federal power to prevent state legislatures from passing laws they
consider appropriate to govern local affairs.
Id. at 520; see also Raoul Berger, The Ninth Amendment, 66 CORNELL L. REV. 1, 8 (1981):
It is incongruous, moreover, to read the text of the ninth amendment as expanding
federal powers at the very moment that the tenth was reserving to the states or the
people all ‘powers not delegated.’ Then too, because the federal government may not
‘deny’ unenumerated rights, it does not follow that it may enforce them against the
states.
Id.
142 In this regard, it is interesting that the Supremacy Clause, after declaring the Constitution
and other valid federal law supreme, states: “the judges in every state shall be bound thereby,
anything in the Constitution or laws of any State to the contrary notwithstanding.” U.S. CONST.
art. VI, cl. 2. This supports state judicial power and responsibility to derive and enforce federal
constitutional rights, although these rights, being matters of federal law, would remain subject to
appellate review by the Supreme Court as part of “[t]he judicial power of the United States.”
U.S. CONST. art. III, §§ 1-2. The state courts properly claimed similar judicial review
responsibility from the earliest days of our republic. See, e.g., Hunter v. Martin, 4 Munf. 1, 6
(Va. 1813) (asserting that the state courts had a responsibility to interpret the Constitution similar
to that of the Supreme Court: “What that constitution is, what those laws and treaties are, must, in
cases coming before the State Courts, be decided by the State Judges, according to their own
judgments, and upon their own responsibility”). However, the Virginia court went too far when it
contended that, while it was obligated to respect the decisions of the federal courts, it was not to
grant them “conclusive authority.” Id. This was too much for Justice Story, who held that the
Supreme Court did, in fact, have appellate authority over the state courts, but reaffirmed that the
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One answer to the expanded federal power objection is that the
modest form of the Ninth Amendment Model, by itself, is neutral on the
question of whether the federal courts can enforce rights against the
states. More fundamentally, however, the critics’ position that
increased enforcement of individual rights constitutes an expansion of
federal power, though syllogistically appealing, is not correct.
Legislative and executive powers are by their nature active, and they
often directly impede individual freedom while pursuing collective
benefits. Judicial “power,” on the other hand, is in a qualitative sense
“passive.”143 It serves to protect, rather than detract from, individual
freedom when exercised in its counter-majoritarian, rights-enforcing
mode.
There is a significant categorical difference between action by the
national legislative or executive branches to constrain people in ways
the states would not (or to preempt state policy choices on matters of
local concern) and judicial decisions by the federal courts protecting the
individual against a particular government action, state or federal.
When the courts enforce individual rights, the “power” that is being
expanded is the autonomous right of the people to shield themselves
from certain types of governmental actions. This is in direct contrast to
the expansion of government power over the people. While the Ninth
Amendment was designed to guard against an unintended expansion of
federal control over the people, there is no evidence that it was intended
to authorize or enhance state powers over the people. In the final
analysis, the Sign Post Interpretation Model of the Ninth Amendment
remains intact, and it is the other structures and relationships of our
constitutional federalism that determine the extent to which federal
rights are applicable to the States.144
state courts are “expressly bound to obedience by the letter of the constitution.” Martin v.
Hunter’s Lessee, 14 U.S. 304, 344 (1816). But see Justice Holmes’ famous comment: “I do not
think the United States would come to an end if we lost our power to declare an Act of Congress
void. I do think the Union would be imperiled if we could not make that declaration as to the
laws of the several States.” OLIVER WENDELL HOLMES, COLLECTED LEGAL PAPERS 295-96
(The Plimpton Press 1920).
143 Alexander Hamilton famously made this point in THE FEDERALIST NO. 78, at 523
(Alexander Hamilton) (Jacob E. Cooke ed., 1961):
The judiciary on the contrary has no influence over either the sword or the purse, no
direction either of the strength or of the wealth of the society, and can take no active
resolution whatever. It may truly be said to have neither Force nor Will, but merely
judgment; and must ultimately depend upon the aid of the executive arm even for the
efficacy of its judgments.
Id.
For excellent classical scholarly treatment of the desirability of the courts’ inherently
passive nature, see Alexander M. Bickel, The Supreme Court 1960 Term Foreword: The Passive
Virtues, 75 HARV. L. REV. 40 (1961); ALEXANDER M. BICKEL, THE MORALITY OF CONSENT
(Yale University Press 1975); ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE
SUPREME COURT AT THE BAR OF POLITICS (2d ed. 1986) (1962).
144 This important point is discussed supra at notes 189, 195-196, 200-202 and accompanying
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The Emptiness Objection145
The Ninth Amendment does not contain specific rights, or tell the
courts exactly where or how to look for these unenumerated rights. The
emptiness objection is that such rights therefore do not exist or, even if
they do, the Ninth Amendment and the Sign Post Interpretation Model
do not justify or clarify the judicial search for these ephemeral rights.146
If the model embraced the proposition that the Ninth Amendment serves
as a catalog of rights, or alternatively as a talismanic directory of
sources and methods for finding rights outside of the Ninth
Amendment, the emptiness objection would be well founded. But, as
noted previously, the Sign Post Interpretation Model does not make any
such claims.147
A useful analogy may be drawn from elementary solid geometry.
Suppose that one is given a three dimensional object, even one as
simple as a cone, and asked whether it is useful in helping to determine
one or more two-dimensional figures. The cone is not a two
dimensional figure, and does not by itself meaningfully determine the
contour of any particular such figure. When cut by all possible planes,
the cone yields an infinite number of figures. But it does not follow that
text.
145 See Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 366-67 (1981)
(“[T]he ninth amendment seems to me entirely empty, supplying no ascertainable direction to the
courts. It is, accordingly, far too indefinite to provide any judicial authority for the development
of substantive rights against the political process.”); Andrzej Rapaczynski, Symposium, The
Ninth Amendment and the Un-written Constitution: The Problems of Constitutional
Interpretation, 64 CHI.-KENT L. REV. 177, 178 (1988) (“The ninth amendment is void of any
substantive content; instead, it states a rule of construction which, even if assumed to entitle a
court to engage in expansive judicial review . . . is also incapable of doing any real work in the
process of actual interpretation”). Peter Westen has repeatedly made a similar, and similarly
misguided, argument with respect to the Equal Protection Clause. See, e.g., Peter Westen,
Commentary, The Meaning of Equality in Law, Science, Math, and Morals: A Reply, 81 MICH. L.
REV. 604, 604 (1983) (“Equality, I argue, has two qualities that together disqualify it as an
explanatory norm in law and morals. It is both empty and confusing[.]”); PETER WESTEN,
SPEAKING OF EQUALITY: AN ANALYSIS OF THE RHETORICAL FORCE OF ‘EQUALITY’ IN MORAL
AND LEGAL DISCOURSE (Princeton University Press 1990). See infra notes 321-323 and 331, and
accompanying text, for discussion of the significance of notions of equality as important meta
principles for a rights model, and of the fundamentally flawed character of Professor Westen’s
thesis.
146 Remarkably, Raoul Berger at one point suggests his view that not only is the Ninth
Amendment empty, but that the Bill of Rights is as well: “Thus viewed, the Bill of Rights added
nothing, but was merely declaratory.” Raoul Berger, The Ninth Amendment, 66 CORNELL L.
REV. 1, 6 (1981). Pretty soon, if we accept the views that the great rights provisions of the
Constitution are essentially empty, e.g. Westen for the Equal Protection Clause; Berger, et. al., for
the first ten Amendments; United States v. Darby, 312 U.S. 100, 124 (1941) (the Tenth
Amendment “states but a truism”); Justice Miller in Slaughter-House Cases, 83 U.S. (16 Wall.)
36 (1872) for the Fourteenth Amendment Privileges or Immunities clause; and Justices Douglas
and Scalia and others for Substantive Due Process, the rights protecting function of the
Constitution will begin to disappear like the Cheshire cat, leaving only an unsatisfactory grin.
147 See supra notes 105-108 and accompanying text.
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the cone is “empty” or useless in helping to determine particular two
dimensional figures.
First, although an infinite number of figures can be obtained from
the cone, all of them fall into a finite number of classes, e.g. circles,
ellipses, triangles, parabolas, etc., with certain well defined
characteristics. One can analyze a given plane figure and determine
with certainty whether it is a conical section or not. Second, if not only
the cone, but also a specific plane cutting the cone is given, a precise
individual figure conclusively is determined. To complete the analogy,
the Sign Post Interpretation Model treats the Ninth Amendment as
neither the cone nor the intersecting planes, but as a statement that there
are legitimate solids (sources of rights), and legitimate planes (methods
of interpretation), and that the Court is a proper institution to map these
solids, cut them with appropriate planes and apply the resultant shapes
(rights) to decide specific cases.148
The emptiness objection, if accepted, would also impermissibly
flout the bedrock principle of construction that no provision of the
Constitution is surplusage or without meaningful effect. In sum, the
Ninth Amendment is just as important as, and no more empty than, the
corresponding mathematical rubric that empowers the mathematician to
slice solid objects with a specified plane, yielding a determinate and
particular two dimensional figure. (The neurologist uses an MRI scan
to create similar invaluable two dimensional images of brain tissue).
The emptiness objection fails, and the Sign Post Interpretation Model
remains a vital and useful tool for any reasonable comprehensive theory
of rights.
148
See infra Diagram 7.
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4.
663
The Judicially Unenforceable Rights Objection
The remaining objection to the Sign Post Interpretation Model is to
concede that the Ninth Amendment, by its plain terms, establishes that
there are unenumerated rights, but then to deny that these rights are
judicially enforceable.149 This objection would have to be based on one
149
Some critics of Justice Goldberg’s opinion take this position, both admitting that there are
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of three assertions: that these rights are not enforceable at all, that
although they are enforceable, the courts are less institutionally capable
of enforcing them compared with other, more clearly textual rights, or
that other institutions are more appropriate and capable of finding and
protecting unenumerated rights than they are of protecting textual
rights.
The first part of the objection answers itself. A right that had no
impact whatever, not even through self-defensive action by the
individual with the right, would be completely illusory. There is no
basis for concluding that our framers, committed as they were to
“unalienable rights,” a written constitution with the force of law, and the
rule of law as an essential ingredient to the social compact, intended to
engage in any such charade.150 This objection therefore folds in on
itself and really becomes just another version of the argument, rejected
previously, that the Ninth Amendment is empty and unenumerated
rights do not exist.151
The second and third elements of the objection are the opposite
sides of the same coin and either prove too much or too little. The
argument that the courts lack institutional competence to enforce
individual rights,152 in comparison with other political and social
structures, was unanimously rejected in the initial debate over the
legitimacy of judicial review.153 In fact, it is widely accepted that the
Court’s “special” institutional competence is heightened in comparison
with the political branches when carrying out its counter-majoritarian
function to protect an individual from excessive government power.154
unenumerated rights, and denying that they are judicially enforceable. See, e.g., Raoul Berger,
The Ninth Amendment, 66 CORNELL L. REV. 1, 5-6, and 10 (1981); see also Justice Scalia’s
comments in his dissenting opinion in Troxel v. Granville, 530 U.S. 57, 91-92 (2000), where he
identified in the Declaration of Independence and the Ninth Amendment “a right of parents to
direct the upbringing of their children” but then asserted that neither text “as a judge entitles me
to deny legal effect to laws that (in my view) infringe upon what is (in my view) that
unenumerated right.”
150 Chief Justice Marshall made a very similar point in Marbury v. Madison, 5 U.S. (1 Cranch)
137, 163 (1803): The very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he receives an injury . . . . The
government of the United States has been emphatically termed a government of laws, and not of
men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the
violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country,
it must arise from the peculiar character of the case.
Id.
151 See supra notes 145-148 and accompanying text.
152 I mean to include in this concept the derivation, interpretation and definition of the right as
well as its application in a particular factual situation.
153 See, e.g., Marbury, 5 U.S. (1 Cranch) 137; Martin v. Hunter’s Lessee, 14 U.S. 304 (1816);
THE FEDERALIST NO. 78 (Alexander Hamilton) (John E. Cooke ed., 1961).
154 See, e.g., Marbury, 5 U.S. (1 Cranch) at 166 (discussing the important and unreviewable
political discretion vested by the Constitution in the President in areas where the President’s
powers “respect the nation, not individual rights,” but noting that “when the rights of individuals”
are at issue, the President’s Secretary of State is an “officer of the law . . . and cannot at his
2006]
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Unless one is prepared to discard two centuries of successful experience
with the development of judicial review of individual rights claims,
then, the argument must be reduced to its more limited form that even if
the courts have special institutional competence to enforce textual
rights, this competence/legitimacy evaporates when the rights are less
clearly textual.
It is assuredly true that as one moves from the core of a textual
right outward to unenumerated rights, cases get harder and more
controversial. The consequent increased risk to the courts’ store of
legitimacy capital,155 and the greater likelihood of outright error
undoubtedly counsel increased caution and restraint on prudential
grounds.156 But this decline in the courts’ sure-footedness is no a priori
reason to conclude that other institutions gain competency or legitimacy
in comparison with the courts in handling claims of rights that are not
clearly textual. The legislatures and the executive (the politically
representative and therefore most democratic of government
institutions) are properly not fully entrusted to protect individuals in
their textual rights against majority will. It is even less likely that they
discretion sport away the vested rights of others”); McCulloch v. Maryland, 17 U.S. 316, 401
(1819), noting that a case:
in the decision of which the great principles of liberty are not concerned, but the
respective powers of those who are equally the representatives of the people, are to be
adjusted; if not put at rest by the practice of the government, ought to receive a
considerable impression from that practice [and therefore the Act of Congress] ought
not to be lightly disregarded.
Id.
The clear implication of Justice Marshall’s statement is that in cases where the great
principles of liberty are concerned, the Court should be much more willing to strike down
infringing governmental action; see also U.S. v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4
(1938) suggesting that:
[t]here may be [a] narrower scope for [the] operation of the presumption of
constitutionality when legislation . . . [is] within a specific prohibition of the
Constitution, such as those of the first ten Amendments, . . . [or] legislation which
restricts those political processes which can ordinarily be expected to bring about
repeal of undesirable legislation, is to be subjected to more exacting judicial
scrutiny . . . than are most other types of legislation . . . [or] statutes directed . . .
against discrete and insular [racial or religious] minorities.
Id.
155 As politicians achieve policy goals partially by earning and selectively using political
capital, so too are courts able to restrain the political branches by developing and expending
judicial legitimacy capital. Examples where previously accumulated legitimacy capital were
essential to the Supreme Court’s ability to act, and to have the acts followed, however reluctantly,
include Brown v. Bd. of Educ., 347 U.S. 483 (1954), and United States v. Nixon, 418 U.S. 683
(1974) (the Nixon Watergate tapes litigation). It is fanciful to imagine even minimal compliance
by recalcitrant segregationist States, or a powerful executive, without the weight of a long
tradition of acceptance of judicial review and judicial mandates in less sensitive cases.
156 See supra note 143 for a sampling of the thoughtful scholarship of Professor Alexander
Bickel on these themes. One of Professor Bickel’s most persuasive arguments is that the Court
should conserve carefully its store of legitimacy capital so it might be able, in a true nationwide
crisis, to call a “riven society back” to its senses. ALEXANDER M. BICKEL, THE SUPREME COURT
AND THE IDEA OF PROGRESS (1970).
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will restrain their impulse for immediate political gains from
majoritarian or special interest group action if the only impediment is
the claim from a minority of individuals that the law trenches on an
unenumerated right without obvious textual pedigree.157 There is
simply no respectable argument that custom, manners or some other
non-governmental social institution will suddenly jump to the fore to
protect non-textual rights better than these institutions protect textual
rights. Finally, both practical limitations and important considerations
of societal stability militate against relegating the protection of all nonenumerated rights to the people’s reserved right of revolution.158
In fact, careful consideration of the nature and effect of the
reserved right of revolution lends strong support to active judicial
review and enforcement of individual rights. If, instead, the countermajoritarian function was entrusted to the political branches and they
became tyrannical, their force and will (money, power and armies)
would likely make even a justifiable revolution tragically bloody.
Conversely, the courts’ passive nature ensures that they could not alone
(without at least silent collusion from the political branches) tyrannize
the people; and if they were to intentionally and persistently refuse to
honor the people’s rights, they could be corrected or removed
comparatively easily and bloodlessly. Of course, a court that constantly
frustrated the majority in the name of faux individual rights without just
cause might ultimately provoke its own demise, just as would a court
that refused to honor individual rights—neither a good sort of
revolution, but still far preferable to a bloody civil confrontation.
157 The single-headed executive branch seeking a more coherent policy objective is even less
likely to prove especially sensitive to inconvenient rights that are not textually self-evident. Both
political branches of governments (legislative and executive) are somewhat more likely to pause
before seeking, enacting or enforcing legislation with serious negative impacts on textual rights,
especially those in bills of rights, for several reasons. Since these decisions are taken in the
abstract before policy is applied and consequences can be observed, objections based on textual
rights are much more likely to be noticed and pressed upon the decision makers because these
rights present an easy catalog for watchdog individuals or rights organizations to search through.
(It should be noted that our courts typically face a much more concrete situation because of the
Article III case and controversy and standing requirements. This fixing of the concrete situation
in judicial cases makes the search for a relevant unenumerated right far less open-ended an
endeavor than it would be in the abstract). Also, our constitutional history and tradition have
imbued the text, and particularly the Bill of Rights, with a mythic quality that sometimes rises to
the level of civic religion. The legislator or president may feel a moral pull to honor
constitutional text in the Bill of Rights, and simultaneously gain political stature, in ways that just
are not present with respect to non-textual constitutional impulses.
158 See THE DECLARATION OF INDEPENDENCE (U.S. 1776) (“whenever any Form of
Government becomes destructive of [unalienable rights], it is the Right of the People to alter or to
abolish it”). See generally GARRY WILLS, INVENTING AMERICA: JEFFERSON’S DECLARATION
OF INDEPENDENCE (1978) for an interesting discussion of the founders’ understanding of the
limited legal right of revolution retained by the people, and its distinction from legally unjustified
rebellion or insurrection.
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The courts are fallible and will make mistakes.159 Still, they
possess certain special competencies, and the Ninth Amendment adds
unmistakable support for their role in assuring protection of “other
[rights] retained by the people,” which necessarily require articulating
and enforcing individual constitutional rights beyond those given
concretely in the rest of the text. The Sign Post Interpretation Model
withstands attack and merits an important role in any comprehensive
model of judicially enforceable fundamental rights, both in affirming
that such rights exist and in confirming the courts’ proper institutional
role regarding sources of law and methods of interpretation for such
rights.
B. Justice Harlan and Due Process
as a Cauldron on Its Own Bottom
There is much to admire in Justice Harlan’s analysis of
Connecticut’s anti-birth control statute in his concurring opinion in
Griswold v. Connecticut,160 and especially in his careful dissent in Poe
v. Ullman.161 Perhaps more than the other Griswold justices voting to
strike down the Connecticut statute, he considered the specific nature of
the state’s intrusion into an area of personal liberty, made an effort to
define and describe the contour and limitations of the right that he relied
upon, gave serious consideration to the State’s asserted policy
justifications for the statute (including the particularly thorny question
of whether and to what extent the State can rely exclusively on a moral
principle to support legislation), and investigated the particular
enforcement mechanism of the statute. But, just as any perceived lack
of craft in the other opinions was no impediment to drawing out valid
analytical models for the derivation of non-textual rights, so too the
seductive quality of the fine craft characteristic of Justice Harlan does
not by itself establish validity for his stated analytical model.162
159 See, e.g., Dred Scott v. Sandford, 60 U.S. 393 (1856); Plessy v. Ferguson, 163 U.S. 537
(1896); Lochner v. New York, 198 U.S. 45 (1905); Korematsu v. United States, 323 U.S. 214
(1944), notable among many others.
160 381 U.S. 479, 499-502 (1965).
161 367 U.S. 497, 522-55 (1961). Poe dealt with an earlier declaratory judgment action filed
against the same Connecticut anti-contraceptive statute. A majority of the Court concluded for a
variety of reasons that the issues were non-justiciable as presented. Justice Harlan dissented on
the justiciability question. Reaching the merits, he argued at length that the Connecticut statute
was unconstitutional. Id.
162 This is not to demean the importance of craft to legitimate constitutional interpretation.
Indeed, true judicial craft may be the most important element of the courts’ special institutional
competence to exercise constitutional control over the other branches of federal and state
governments. Justice Harlan’s example of fine craft has much to say about the proper treatment
of sources and methods for the determination and enforcement of non-textual rights.
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Justice Harlan objected to grounding the individual right that
protects Griswold on the Bill of Rights or their penumbras,163 and he did
not rely on the Ninth Amendment. For Justice Harlan, given his view of
federalism, the only proper source for the Court to look for individual
rights to restrain state power is in the Due Process Clause of the
Fourteenth Amendment.164 His analytical model equates the Due
Process Clause with a charge to the Court to seek those “basic values”
that are “‘implicit in the concept of ordered liberty.’”165 Many sources
of law, including the provisions of the Bill of Rights, add spice to the
ingredients of due process, and methods of interpretation offer
important stirring implements, but it is the Due Process Clause itself
that ultimately “stands . . . on its own bottom.”166 Justice Harlan’s
model can thus be illustrated as a Due Process Cauldron containing
Liberty rights that are not otherwise clearly marked off in the
Constitutional text.167
163 Griswold, 381 U.S. at 499-500.
Justice Harlan did not accept “the use of the
‘incorporation’ approach to impose upon the States all the requirements of the Bill of Rights as
found in the provisions of the first eight amendments and in the decisions of this Court
interpreting them.” Id. at 500. Neither did he accept the use of incorporation “to restrict the
reach of Fourteenth Amendment Due Process” limitations on the States to what may be found in
the Bill of Rights. Id. “While the relevant inquiry may be aided by resort to one or more of the
provisions of the Bill of Rights, it is not dependent on them or any of their radiations.” Id.
(emphasis added).
164 “[N]or shall any State deprive any person of life, liberty, or property, without due process
of law[.]” U.S. CONST. amend. XIV, § 1.
165 Griswold, 381 U.S. at 500 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
166 Id. at 500; see also Poe, 367 U.S. at 543 (Harlan, J., dissenting):
[T]he 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 pricked out in the terms of
taking of property; the freedom of speech, press, and religion; the right to keep and
bear arms; the freedom from unreasonable searches and seizures; and so on. It is a
rational continuum which, broadly speaking, includes a freedom from all substantial
arbitrary impositions and purposeless restraints.
Id.
167 See infra Diagram 8.
2006]
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669
This model, without further refinement, can equally accommodate
procedural and substantive rights. It is apparent that Justice Harlan
relied on both kinds of rights in Poe and Griswold, and that he
supported directly the concept of substantive due process.168 Justice
Harlan relied on the practice and tradition of Liberty as the source for
the judicial infusion of substantive fundamental rights. Liberty is
certainly more than just an attractively flexible label. It is an important
symbol with historical and philosophical content, and with a classical
pedigree for both procedural and substantive rights in the American
lexicon.169 But there are still three weighty objections to Justice
Harlan’s model given his broad and exclusive reliance on “substantive
due process.”170
168
169
Poe, 367 U.S. at 540-41.
Abraham Lincoln described our nation as one “conceived in Liberty” in his Gettysburg
address. Abraham Lincoln, The Gettysburg Address (November 19, 1863). Our Constitution
states six purposes; two are to “establish Justice” and “secure the Blessings of Liberty to
ourselves and our Posterity[.]” U.S. CONST. pmbl. And the nation’s founding document, the
Declaration of Independence, declares that “Life, Liberty, and the [P]ursuit of Happiness” are
among “unalienable [r]ights” that are the birthright of all. THE DECLARATION OF INDEPENDENCE
para. 2 (U.S. 1776). Governments are only justified, instituted and maintained “to secure these
rights,” and “whenever any Form of Government becomes destructive of these ends, it is the
Right of the People to alter or to abolish it[.]” Id. The very legitimacy of the American
revolution depended on the notion that certain procedural and substantive rights precede
governments and take precedence over the exercise of unjust sovereign governmental power. See
generally WILLS, supra note 158; CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN
RIGHTS, NAMED AND UNNAMED (1997) (the legitimacy of the American revolution is based on a
commitment to the human rights outlined in the Declaration); GARRY WILLS, LINCOLN AT
GETTYSBURG: THE WORDS THAT REMADE AMERICA (1992).
170 Despite these objections, substantive due process seems to have been gradually adopted as
the shorthand for individual rights which are not clearly textual in the years since Griswold. See,
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The Cautionary Lesson of Economic Substantive Due Process
The Fourteenth Amendment was ratified in 1868 after the end of
the Civil War. Almost immediately, claims of economic substantive
due process were pressed upon the courts. The Supreme Court rejected
the entire doctrine as a limitation on state legislation in the SlaughterHouse Cases,171 but as the Court’s composition changed, receptivity to
these arguments increased.172 In 1905, a majority of the Court gave
economic substantive due process full sanction in Lochner v. New
York.173 The majority found that the State’s desire to control
employer/employee relations was illegitimate and violated the
substantive due process right of the bakery employer’s liberty of
contract.174 During the next thirty years, the Court used the Lochner
principle to examine state legislative ends and to strike down a variety
of economic and social welfare measures.175 Increasingly, the Court’s
intervention was seen as inappropriate judicial meddling in legislative
policy choices.176 Momentum built for judicial retreat, and by the end
e.g., Roe v. Wade, 410 U.S. 113, 153 (1973) (holding that the “right of privacy, whether it be
founded in the Fourteenth Amendment’s concept of personal liberty . . . as we feel it is, or, as the
District Court determined, in the Ninth Amendment” invalidates the Texas criminal abortion
statute.) Justice Stewart concurred, noting that Griswold, like the instant case, could “be
rationally understood only as a holding that the [statute in question] substantively invaded the
‘liberty’ that is protected by the Due Process Clause of the Fourteenth Amendment . . . . and I
now accept it as such.” Id. at 168; see also Moore v. E. Cleveland, 431 U.S. 494 (1977) (Justice
Powell’s plurality opinion relies expressly on “Substantive due process” Id. at 502); Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 848 (1992) (relying on “the substantive sphere of
liberty which the [Due Process Clause of] the Fourteenth Amendment protects”); Lawrence v.
Texas, 539 U.S. 558 (2003).
171 83 U.S 36 (1872).
172 See, e.g., Mugler v. Kansas, 123 U.S. 623, 661 (1887) (rejecting a Fourteenth Amendment
challenge to a Kansas law prohibiting the sale of liquor, but noting that “[it] does not at all follow
that every statute enacted ostensibly for the promotion of [the public morals, health and safety] is
to be accepted as a legitimate exertion of the police powers of the State”); Allgeyer v. Louisiana,
165 U.S. 578 (1897) (striking a Louisiana statute forbidding the purchase of marine insurance
from any company not in full compliance with Louisiana law, as a violation of liberty of contract
under the Fourteenth Amendment Due Process Clause).
173 198 U.S. 45 (1905) (holding a New York law limiting the hours of employee bakers to no
more than ten hours a day and sixty hours a week unconstitutional as a substantive violation of
the Due Process Clause of the Fourteenth Amendment).
174 Id. at 64.
175 See, e.g., Coppage v. Kansas, 236 U.S. 1 (1915) (striking down a Kansas statute which
made it illegal for employers to bar their employees from joining unions); Williams v. Standard
Oil Co., 278 U.S. 235 (1928) (striking down a Tennessee law regulating the price of gasoline);
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (striking down an Oklahoma law which
required a state license as a prerequisite for the manufacture and sale of ice).
176 See e.g., Nebbia v. New York, 291 U.S. 502, 539 (1934) (upholding a New York statute
fixing the minimum price of milk. “Price control, like any other form of regulation, is
unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the
legislature is free to adopt[.]”); W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (upholding a
Washington statute establishing minimum wages for women, and overruling Adkins v. Children’s
Hospital, 261 U.S. 525 (1923)).
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of the 1940’s, the Court had clearly repudiated the Lochner approach.177
The Court substituted a highly deferential, low-level rational
relationship standard that demanded scant state justification to defeat an
economic substantive due process challenge.178
Lochner and its economic substantive due process doctrine have
become constitutional boogeymen.179 It is difficult to find anyone with
a good word to say about the extent of the Court’s Lochnerian
interventionist period. The critics of Lochner do not always agree on
the precise defects of economic substantive due process, but the nearly
universal rejection of the doctrine (at least in the broad form practiced
during the Lochner era) serves as an important cautionary flag for any
theory of substantive individual liberty rights that looks primarily to the
Due Process Clause as the source of those rights.
Any such broad theory would either have to accept the baggage of
Lochner and a revival of judicial intervention against economic and
social welfare legislation,180 or offer a principled distinction within the
context of the Due Process Clause between substantive individual
liberty rights and property and contract oriented economic rights.181
177 See Lincoln Fed. Labor Union v. Nw. Iron & Metal Co., 335 U.S. 525 (1949) (upholding a
Nebraska constitutional amendment and a North Carolina statute which prohibited employment
discrimination based on union membership). Justice Black noted that “[t]his Court beginning at
least as early as 1934, when the Nebbia case was decided, has steadily rejected the due process
philosophy enunciated in the Adair-Coppage line of cases.” Id. at 536.
178 See Williamson v. Lee Optical, 348 U.S. 483, 488 (1955):
It is enough that there is an evil at hand for correction, and that it might be thought that
the particular legislative measure was a rational way to correct it. The day is gone
when this Court uses the Due Process Clause of the Fourteenth Amendment to strike
down state laws, regulatory of business and industrial conditions, because they may be
unwise, improvident, or out of harmony with a particular school of thought.
Id.
179 Dred Scott v. Sandford, 60 U.S. 393 (1857), ranks even higher on the Supreme Court’s list
of iniquitous decisions in affirming the categorization of African-American slaves as mere
property of another without human rights of their own, but it soon became a constitutional dead
letter with the adoption of the Thirteenth and Fourteenth Amendments.
180 There is some evidence of a slight revival of economic substantive due process. If one sees
Williamson as an understandable, yet over-correction to the Lochner flaws, a modest revival can
perhaps be justified, but only if the new economic substantive due process constitutes an
analytically distinct, and much less intrusive, approach compared with Lochner. For suggestions
that rationality review be applied with somewhat more teeth or “bite,” see generally Gerald
Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer
Equal Protection in The Supreme Court 1971 Term, 86 HARV. L. REV. 1 (1972); Gerald Gunther,
Commentary, 71 CHI.-KENT L. REV. 813 (1996); Hans A. Linde, Due Process of Lawmaking, 55
NEB. L. REV. 197 (1976). For an argument that the Court has indeed modestly revived economic
substantive due process in a more defensible manner than Lochner, see Michael J. Phillips, The
Slow Return of Economic Substantive Due Process, 49 SYRACUSE L. REV. 917 (1999).
181 The majority in Lochner actually talks about the economic right it finds as an aspect of
“liberty of person and freedom of contract,” rather than as a property right. Lochner v. New York,
198 U.S. 45, 57 (1905). The business and economic character of the putative right surely ties it
more closely to property considerations than to personal liberty. (This might not stand as clearly
if the Court had been concerned with an individual employee’s right to pursue his work to the
extent he desired, rather than with the employer’s desire to require his workers to exceed the state
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Such categorical distinctions are quite plausible, on grounds of political
theory, based upon constitutional text outside of the due process
clauses, or constitutional structural considerations,182 but they are not
entirely satisfactory within the confines of the due process clauses
themselves, which expressly list life, liberty and property as interests
subject to due process protections.183
maximum hour limitations.) Later cases in the Lochner era make clear that the majority Justices
were, in fact, relying on property, at least as much as liberty, as the source for economic
substantive rights. See, e.g., Coppage v. Kansas, 236 U.S. 1, 14 (1915) (“Included in the right of
personal liberty and the right of private property—partaking of the nature of each—is the right to
make contracts for the acquisition of property. Chief among such contracts is that of personal
employment[.]”); Williams v. Standard Oil Co., 278 U.S. 235, 239 (1928) (holding that the
impact of a law fixing gasoline prices “will be to deprive the vendors of such gasoline of their
property without due process of law in violation of the Fourteenth Amendment”).
182 The Court has stated that where “a basic liberty” is involved, “[t]here are limits to the extent
to which the presumption of constitutionality can be pressed[,]” and legislation invading
fundamental personal liberties is subjected to “strict scrutiny.” Skinner v. Oklahoma, 316 U.S.
535, 541, 544 (1942). Justice White, concurring in the judgment in Griswold, invoked a double
standard of judicial review by stating: “Surely the right invoked in this case, to be free of
regulation of the intimacies of the marriage relationship, ‘come[s] to this Court with a momentum
for respect lacking when appeal is made to liberties which derive merely from shifting economic
arrangements.’” Griswold v. Connecticut, 381 U.S. 479, 503 (1965) (quoting J. Frankfurter in
Kovacs v. Cooper, 336 U.S. 77, 95 (1949)); see also McCulloch v. Maryland, 17 U.S. 316, 401
(1819) (noting that “the great principles of liberty” were “not concerned” with the instant case,
and therefore the Act of Congress in question, “on the faith of which an immense property has
been advanced, ought not to be lightly disregarded[,]” thereby suggesting the existence of
different standards of review for cases involving matters of liberty and economics); see also
supra note 154.
183 I do not mean to say that there are no meaningful differences among the three terms for
substantive due process purposes. Because they are not listed alphabetically, there is a hint of a
lexical hierarchy with life foremost, liberty second and property third. This may well justify
some gradation of protection (where the difference is a matter of degree and not of kind), but it is
impossible to construct a persuasive textual categorical distinction that would effectively curb
judicial intervention on the basis of substantive economic/property rights, while permitting a
broad reservoir of substantive fundamental personal liberties.
When the claimed protection is procedural rather than substantive, however, there may be a
more natural type difference in the fit of the process that is due depending on whether the interest
is related to life, liberty or property. For this reason, the courts require especially protective
procedures to guard against error when a defendant’s life is at stake in a death penalty sentencing
hearing. See supra note 46 and accompanying text. Deprivations of liberty require fewer, though
still rigorous, procedural protections. See, e.g., In re Winship, 397 U.S. 358 (1970) (requiring
proof beyond a reasonable doubt before the government can punish with a serious deprivation of
liberty through criminal or juvenile delinquency sanctions); Addington v. Texas, 441 U.S. 418
(1979) (mandating proof by clear and convincing evidence when the government seeks to deprive
liberty in a more benign and less adversarial way to protect and treat the dangerously mentally ill
individual). When the government is seeking to deprive an individual only of property in an
ordinary civil case, the more relaxed standard of preponderance of the evidence is sufficient.
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Substantive Due Process is an Oxymoron
Even if a broad personal liberty model of substantive due process
could be distinguished from the Court’s failed interventionist
experiment with economic due process, the oxymoronic quality of the
doctrine presents additional serious obstacles. Minimal fidelity to the
text, history and logic of the due process clauses requires a primary
focus on procedural rights, specifically on the process that is due before
a person may be deprived of life, liberty or property. A broad
substantive due process model violates this basic focus because it
necessarily equates use of the clauses as a source for substantive as well
as procedural rights.
If the Due Process Clauses of the Fifth and Fourteenth
Amendments were an individual’s only protections against federal and
state government power, respectively, in the Constitution, Justice
Harlan’s warning would be dire:
Were due process merely a procedural safeguard it would fail to
reach those situations where the deprivation of life, liberty or
property was accomplished by legislation which by operating in the
future could, given even the fairest possible procedure in application
to individuals, nevertheless destroy the enjoyment of all three.184
Fortunately, several preferable alternatives for substantive
protections are available.185 And it is not necessary to forgo a legitimate
appeal to the irrefutably substantive content of liberty, but it is more
justifiable to focus directly on the roots of this concept not restricted to
the procedural structure of the Due Process Clauses. Two such sources
are the pre-constitutional Declaration of Independence and the Preamble
to the Constitution.186 Obviously neither is self-executing. The
184 Poe v. Ullman, 367 U.S. 497, 541 (1961). Justice Stewart expressed similar concerns
about the possibilities for iniquitous results despite fair procedure in In re Gault, 387 U.S. 1, 80
(1967) (Stewart, J., dissenting) (discussing the ninteenth-century criminal trial of a twelve-yearold for murder when there was no separate juvenile justice system: “James Guild was tried in
New Jersey for killing Catharine Beakes. A jury found him guilty of murder, and he was
sentenced to death by hanging. The sentence was executed. It was all very constitutional.”).
Samuel Butler gave us a delightful humorous account of a fictional society with punctilious
concern for procedural regularity, which guaranteed a model trial before citizens could be
convicted and sentenced to death for the substantive crime of being ill. SAMUEL BUTLER,
EREWHON AND EREWHON REVISITED 102-11 (The Modern Library 1927).
185 In addition to the substantive portions of the Bill of Rights, construed in accord with a
proper application of the Super-Penumbral or Meta Up and Down Model, and the Ninth
Amendment with its Sign Post Interpretation Model, already discussed, these include inter alia
the prohibition of Bills of Attainder of Article I, sections 9 and 10; the Citizenship, Privileges or
Immunities and Equal Protection Clauses of the Fourteenth Amendment; Thirteenth Amendment
protections against slavery and involuntary servitude; and an array of political participation and
voting rights referenced in the Fifteenth, Nineteenth, Twenty-Fourth and Twenty-Sixth
Amendments.
186 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (listing “Life, Liberty, and the
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Declaration is a background statement of American justice rather than
positivist constitutional text, and the Preamble is largely hortatory, but
both are quite relevant for a number of models including the already
discussed Meta Up and Down187 and the Sign Post Interpretation188
Models. The need to force an artificial distinction between economic
and fundamental liberty rights disappears, for liberty is paired with life
and the pursuit of happiness (rather than with life and property) in the
Declaration of Independence, and even more usefully stands alone as
the “Blessings of Liberty” in the Preamble to the Constitution.
One of the major reasons that Justices Douglas and Harlan leave us
with flawed and partial models for fundamental rights is that they both
see the substantive rights question in Griswold as a skirmish (where
they happen to agree on the outcome), compared with an ongoing war
of principle over federalism (where they sharply disagree). The main
battlefield in the larger war is their longstanding debate over the
application of the Bill of Rights to the states through incorporation.189
Neither wants to give aid and comfort to the other. As a champion of
the total incorporationist view, Justice Douglas scrupulously avoids
textual sources outside of the first eight amendments, or any hint of
Lochnerizing,190 perhaps straining the credibility of his application of
the Superpenumbral Theory beyond its outermost limits in the bargain.
An equally wary Justice Harlan, firmly opposed to incorporation and
committed to Justice Cardozo’s “ordered liberty” approach, sticks too
narrowly to the liberty of the Fourteenth Amendment Due Process
Clause as the sole substantive limit on the states. Both Justices,
preoccupied with protecting their flanks on this larger battlefield of
incorporation, detract from a more satisfactory and clear-eyed approach
to the issue directly at hand.
pursuit of Happiness” as among the unalienable rights of all men); U.S. CONST. pmbl. (“We the
People . . . in Order to . . . secure the Blessings of Liberty to ourselves and our Posterity”).
187 See supra Diagram 5; see also infra notes 354-358 and accompanying text for discussion
of a properly enhanced version of the Up and Down Model.
188 See supra Diagram 6.
189 The main original combatants were actually Justice Black, arguing for total incorporation
on one side, and Justices Cardozo and Frankfurter on the other. Compare Justice Black’s dissent
in Adamson v. California, 332 U.S. 46, 89 (1947) (contending that the “purpose of the Fourteenth
Amendment” was “to extend to all the people of the nation the complete protection of the Bill of
Rights”), with Justice Cardozo’s opinion for the Court in Palko v. Connecticut, 302 U.S. 319,
324-25 (1937) (rejecting the full applicability of the Fifth Amendment double jeopardy clause to
the states, and concluding that the Fourteenth Amendment only protected “the specific pledges of
particular amendments” which are “found to be implicit in the concept of ordered liberty”) and
with Justice Frankfurter’s concurrence in Adamson, 332 U.S. at 63 (arguing that “[t]hose reading
the English language with the meaning which it ordinarily conveys . . . would hardly recognize
the Fourteenth Amendment as a cover for the various explicit protections of the first eight
Amendments”); see also Twining v. New Jersey, 211 U.S. 78, 99 (1908).
190 “[W]e decline the invitation [to use Lochner as our guide] . . . . We do not sit as a superlegislature to determine the wisdom, need, and propriety of laws that touch economic problems,
business affairs, or social conditions.” Griswold v. Connecticut, 381 U.S. 479, 482 (1965).
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The Risk of Diluting the Procedural Protections
of the Due Process Clauses
The Substantive Due Process Model has another serious defect.
Because the model postulates a common wellspring and an identical
analytical approach for fundamental substantive and procedural
rights,191 it is inevitable that courts will gravitate toward an unwarranted
least common denominator methodology with respect to both kinds of
rights. The previous discussion demonstrates that the courts will be
especially cautious, and ultimately restrictive, in treating substantive
rights under the Due Process Clause standing alone.192 The prudential
restraints that are developed by the courts to achieve this result will
almost surely be exported to the courts’ treatment of procedural rights
as well, despite the fact that the cautions are not related to the
procedural content of Due Process.193 This unfortunate result would be
191 By “common wellspring” I mean that the model relies on the same ordered liberty
approach for both procedural and substantive rights under the Fifth and Fourteenth Amendment
Due Process Clauses. For examples of procedural due process analytical formulations, see, e.g.,
Hebert v. Louisiana, 272 U.S. 312, 316 (1926) (asking whether the state procedural action was
“consistent with the fundamental principles of liberty and justice which lie at the base of all our
civil and political institutions”); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (asking
whether the state practice “offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental”); Palko, 302 U.S. at 325-26 (Justice
Cardozo puts the test as whether the claimed procedural right is of the “very essence of a scheme
of ordered liberty” and “neither liberty nor Justice would exist if [it] were sacrificed”); Adamson,
332 U.S. at 67-68 (Frankfurter, J., concurring) (stating that due process protects “those canons of
decency and fairness which express the notions of justice of English-speaking peoples”). For
examples of substantive due process analytical formulations, see, e.g., Poe v. Ullman, 367 U.S.
497, 541, 544 ( 1961) (Harlan, J., dissenting) (stating that Due Process protects those substantive
“concepts which are considered to embrace those rights ‘which are . . . fundamental; which
belong . . . to the citizens of all free governments,’” that is, “important fundamental liberties”). In
determining substantive fundamental rights, Justice Harlan stated that we should regard “what
history teaches a[s] the traditions from which [our country] developed as well as the traditions
from which it broke. That tradition is a living thing.” Id. at 542. Harlan urged us to rely on
“‘considerations deeply rooted in reason . . . and in the compelling traditions’” Id. at 545 (quoting
Rochin v. California, 342 U.S. 165, 171 (1952)), and “rational purposes [and] historical roots”
Poe, 337 U.S. at 549. For additional examples, see, e.g., Palko, 302 U.S. at 327 (noting in dicta
that the substantive rights of freedom of thought and speech are included in due process because
they are “the matrix . . . of nearly every other form of freedom. With rare aberrations a pervasive
recognition of that truth can be traced in our history, political and legal”); Moore v. E. Cleveland,
431 U.S. 494, 505 (1977) (noting “the accumulated wisdom of civilization, gained over the
centuries and honored throughout our history”); Griswold, 381 U.S. at 501 (Harlan, J.,
concurring) (advocating the guidance of due process analysis by “continual insistence upon
respect for the teachings of history, [and] solid recognition of the basic values that underlie our
society . . . in establishing and preserving American freedoms”).
192 See supra notes 179-184 and accompanying text; see also infra notes 205-206 and
accompanying text.
193 I have made a somewhat analogous point in advising Kazakhstan, a former Soviet Republic
in Central Asia that gained its independence in 1991, on the drafting of its 1993 Constitution.
Stephen Kanter, Constitution Making in Kazakhstan, 5 INT’L LEGAL PERSP. 65, 84-85 (1993):
If there is a general right of action on the positive rights, the courts will be constrained
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ironic because it is not the fate that Justice Harlan had in mind for the
procedural protections of due process, and it is plainly inconsistent with
the framers’ primary focus on procedural rather than substantive
protections in many of the specific rights provisions of the
Constitution’s text.194
With three strikes against substantive due process as an exclusive
model, what then are the proper uses of the Fourteenth Amendment Due
Process Clause for our purposes? First, by reaching state action, the
provisions of Section 1 of the Fourteenth Amendment195 rebalance
federalism and, unlike the original Bill of Rights, expressly limit the
power of each state over individuals. At a minimum, then, Section 1 of
the Fourteenth Amendment provides the essential vehicle or conduit for
many substantive and procedural fundamental rights limitations on state
power, once such rights are recognized in the first place.196
Second, with respect to fundamental procedural rights, Justice
Harlan surely is correct that due process is not limited to the contents of
the first eight amendments.197 Classic examples of constitutionally
as a practical matter to find mechanisms to discourage or prevent individuals from
suing and to water down the substantive content of these rights in order to give the
legislature a necessarily wide berth of discretion. Before long, these same limitations
would likely be imposed on other kinds of rights, including the individual negative
checking rights with which we are most familiar in our own constitutional tradition.
Id. at 85.
In Kazakhstan the two kinds of rights involved were social/welfare rights, or positive rights
amounting to affirmative claims on the government, and negative checking rights, or limitations
on the government, but the analysis is transferable to the present discussion; see also John Ely’s
comments on the negative impact of the substantive due process cases on due process procedural
rights in some administrative law cases:
[B]efore it can be determined that you are entitled to ‘due process’ at all . . . you must
show that what you have been deprived of amounts to a ‘liberty interest’ or perhaps a
‘property interest.’ What has ensued has been a disaster, in both practical and
theoretical terms. Not only has the number of occasions on which one is entitled to
any procedural protection at all been steadily constricted, but the Court has made itself
look quite silly in the process.
JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 19 (Harvard
University Press 1980).
194 Justice Harlan acknowledged that the roots of due process are “procedural safeguards”
deriving from Magna Carta. Poe, 367 U.S. at 541. He eschewed a narrow, cribbed reading of the
Clause and called for “approaching the text . . . not in a literalistic way, as if we had a tax statute
before us, but as the basic charter of our society, setting out in spare but meaningful terms the
principles of government.” Id. at 540.
195 “Citizenship; Privileges and Immunities; Due Process; Equal Protection[.]” U.S. CONST.
amend. XIV, § 1.
196 All of the justices accept the legitimacy of this proposition in one form or another. Even
Justice Douglas, while aggressively rejecting substantive due process and Lochner, relies upon
Section 1 of the Fourteenth Amendment to justify striking down Connecticut’s state law in
Griswold. He uses his total incorporation interpretation of Section 1 to apply the Bill of Rights
and their generated super-penumbral substantive privacy rights against the State.
197 See Griswold, 381 U.S. at 500; Poe, 367 U.S. at 540-43; see also Adamson v. California,
332 U.S. 46, 67 (1947) (Frankfurter, J., concurring) (rejecting the idea that the Due Process
Clause incorporates the Bill of Rights against the states because this “construction . . . gives to
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mandated procedural protections that are not expressed in the first eight
amendments include the presumption of innocence and proof beyond a
reasonable doubt in criminal cases,198 and a higher standard of proof
than preponderance of the evidence in involuntary civil commitment
proceedings.199 The Court has wisely resolved the contentious
incorporation debate by rejecting the polar positions of total
incorporation with nothing else,200 and totality of the circumstances
determinations of the requirements of “ordered liberty” on a strictly ad
hoc basis. The Court has adopted instead an intermediate approach that
I will refer to as Selective Incorporation Plus.201 The plus component202
gives a valid basis for evaluating the propriety of even a substantive
state law especially when the Court’s inspection is limited to the
enforcement mechanisms of the substantive law, that is, to procedural
aspects or enforcement mechanisms that are necessary consequences of
the law.203
Third, an application to the Due Process Clause of the Basic
due process no independent function,” and “assume[s] that no other abuses would reveal
themselves in the course of time than those which had become manifest in 1791”).
198 See, e.g., In re Winship, 397 U.S. 358, 364 (1970) (holding that the Due Process Clause
requires “proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which [the defendant] is charged”); Estelle v. Williams, 425 U.S. 501, 503 (1976) (holding that
“[t]he presumption of innocence, although not articulated in the Constitution, is a basic
component of a fair trial” which is “secured by the Fourteenth Amendment”); see also Apprendi
v. New Jersey, 530 U.S. 466, 490-91 (2000); U.S. v. Booker, 543 U.S. 220 (2005) (holding that
every fact, other than a prior conviction, that enhances the maximum range for a defendant’s
sentence, also must be found by a jury, rather than a judge, and proved beyond a reasonable
doubt).
199 See Addington v. Texas, 441 U.S. 418 (1979) (holding that due process requires a standard
of clear and convincing evidence of mental illness and dangerousness in a civil trial for
involuntary commitment to a mental hospital).
200 Justice Black was the principal advocate for the total incorporation with nothing else
position. See Adamson, 332 U.S. at 70 (asserting that the majority’s use of “‘natural law’
theory”, instead of incorporation, to interpret the Due Process Clause “degrade[s] the
constitutional safeguards of the Bill of Rights and simultaneously appropriate[s] for this Court a
broad power which we are not authorized by the Constitution to exercise”).
201 This approach has resulted in the incorporation, one clause at a time, of most but not all of
the provisions of the Bill of Rights. For an example of the Court’s current selective incorporation
methodology, see Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (fully incorporating the Sixth
Amendment jury trial right as “fundamental to the American scheme of justice”) .
202 The “Plus” refers to the procedural protections the Court finds implicit in the Due Process
Clause which are not contained in the first Eight Amendments. See supra notes 197-199 and
accompanying text. In addition to these criminal and civil procedure protections, one should add
virtually the entire list of constitutionally required administrative law safeguards developed
through the application of the Court’s often-used balancing test enunciated in Mathews v.
Eldridge, 424 U.S. 319, 335 (1976).
203 That portion of Justice Harlan’s Poe dissent focusing on the means chosen by the
Connecticut legislature, and the offensive procedural implications of the statute’s enforcement
mechanism, is properly directed toward this end and is distinguishable from the more troubling
aspects of the substantive Due Process Cauldron Model. See Poe v. Ullman, 367 U.S. 497, 54751 (1961).
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Core/Penumbra Model is appropriate.204 Although the core of due
process contains only procedural contents, the penumbra could include
substantive fundamental rights that are truly corollary to the core
procedural rights.205 Because such substantive rights are different in
kind, and not just in degree, from the procedural rights, this area of
penumbral expansion will be relatively confined and the case for
substantive rights implied solely by the Due Process Clause must be
especially strong.206
Fourth, if the Fourteenth Amendment Due Process Clause is
accepted as a rule for the state legislatures as well as for the courts, the
judiciary may appropriately conduct substantive review, at least to
determine whether the legislature has conscientiously considered and
justified the magnitude of any deprivation of life, liberty or property
caused by its statute.
Fifth, and most significantly for our purposes, the conceptual
elements of the Due Process Clauses,207 together with other similarly
expansive constitutional provisions, play a significant role as meta
principles for an enhanced Up and Down Model.208
III. THE GRISWOLD DISSENTERS AND COMPANY
The dissenters209 and other critics of Griswold predictably strike
various themes with different impacts on the models under
consideration.
Justice Black rejects nontextualism altogether,210
204
205
See supra Diagram 1.
Several of Justice Harlan’s comments seeking to justify substantive due process are more
consonant with this core-penumbra approach, where procedural rights have primacy and
substantive rights are derivative, than with the broad Due Process Cauldron Model equating
substantive and procedural rights. See, e.g., supra note 203 and accompanying text.
206 This concept can be visualized by imagining a modification of Diagram 1 with the outer
concentric circle reduced in diameter so that it is only slightly larger than the inner core circle.
207 These include, for example, life, liberty, property, personhood, and fundamental fairness.
208 See infra notes 354-356 and accompanying text, and Diagram 10. In this sense, perhaps
one can look at the Due Process Clause as a metaphorical stone in a larger stone soup pot of
rights, rather than as the self-contained pot of rights depicted in the flawed Cauldron on its Own
Bottom Model.
209 Justices Black and Stewart filed separate dissenting opinions in Griswold v. Connecticut,
381 U.S. 479, 507-27 and 527-31 (1965) respectively, and each justice also joined the other’s
opinion.
210 Id. at 508-10, 527. Although Justice Black rejects nontextualism, he is not a strict
textualist either as is easily demonstrated by his call for a “liberal reading I think any Bill of
Rights provision should be given[,]” Id. at 509, and his acknowledgment that even their relatively
specific words are properly subject to judicial interpretation which may modify their original
meaning: “This process, of course, involves interpretation, and since words can have many
meanings, interpretation obviously may result in contraction or extension of the original purpose
of a constitutional provision thereby affecting policy.” Griswold, 381 U.S. at 525-26 (Black J.,
dissenting) (quoting Adamson v. California, 332 U.S. 46, 90-92 (Black, J., dissenting)).
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particularly as espoused by Justice Harlan under the rubric of
substantive due process, or based on notions of natural law.211 I agree
that pure nontextualism, candidly embraced by some,212 is antithetical to
our system based upon a written constitution as positive law for a
structurally limited and divided government, which includes limits on
the courts. But, there is a critical gap between complete nontextualism
and a strict requirement that claimed rights must be expressed explicitly
in the text of the Constitution.213 Persuasive interpretive models worthy
of consideration reside in this gap. They depend upon textual anchors
and pointers that justify a conscientious judicial effort to consider
claims of right based on legitimate source materials and methods of
judicial interpretation, but they ought not to be restricted only to
expressly listed rights.214
In his mercifully short four and one-half page Griswold dissent,215
Mr. Justice Stewart imposed a linear analytical approach, taking the
Constitution as a group of essentially unconnected and independent
fragments. He then tested and rejected the proposed fundamental right
against each fragment standing alone without reference to the
211 Griswold, 381 U.S. at 514-17 (Black, J., dissenting) (criticizing “the same natural law due
process philosophy which many later opinions repudiated, and which I cannot accept”).
212 See Michael J. Klarman, Antifidelity, 70 S. CAL. L. REV. 381, 381 (1997) (“Does the
Constitution deserve our fidelity at all? . . . Of course not. Why would one think, presumptively,
that Framers who lived two hundred years ago, inhabited a radically different world, and
possessed radically different ideas would have anything useful to say about how we should
govern ourselves today?”).
213 This restrictive view is essentially the position taken by Judge Robert Bork. See Robert H.
Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1,8 (1971) (“The
judge must stick close to the text and the history, and their fair implications, and not construct
new rights”). Judge Bork further indicated that “[i]n Lochner, Justice Peckham, defending liberty
from what he conceived as a mere meddlesome interference, asked, ‘[A]re we all . . . at the mercy
of legislative majorities?’ The correct answer, where the Constitution does not speak, must be
‘yes.’” Id. at 11.
214 It would be particularly anomalous and troubling if the government should be able to claim
judicially enforceable implied powers, see McCulloch v. Maryland, 17 U.S. 316 (1819), while the
individual is barred from claiming implied rights. Chief Justice Marshall made a somewhat
analogous point in arguing that if the government can rely on implied powers to punish, it surely
should be allowed implied powers for more benign purposes. Id. at 418. It should also be
remembered that Marshall based the doctrine of Congressional implied powers on structural
considerations, the nature of the constitution and great constitutional purposes, before ever noting
the Necessary and Proper Clause. A doctrine of implied rights is at least equally sound, see supra
Part I of this Article, on structural and theoretical grounds, and it is bolstered by the Ninth
Amendment, the Preamble, and other specific textual provisions. The fact that courts may
sometimes go too far in declaring rights is no more reason to reject all models of interpretation
supporting implied rights than is the similar fact that courts may sometimes go too far in
recognizing implied government powers a sufficient justification to abandon completely the
doctrine of implied powers. Of course, as the courts move further away from express textual
rights and toward the outer edges of implied counter-majoritarian rights inherent in our brand of
constitutional democracy, there will be greater reason for caution and the employment of
prudential techniques of incrementalism.
215 Griswold, 381 U.S. at 527-31.
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interconnected purposes and structure of the overall text.216 Having
lined up and checked off the constitutional phrases one by one, he
leaves us with a rhetorical question just to make sure that there are no
overlooked strays: “What provision of the Constitution, then, does make
this state law invalid?”217 Finding none, he was quite prepared to
uphold the constitutionality of Connecticut’s “uncommonly silly,”
“unwise, or even asinine” law.218 He seemed to take some comfort from
his surmise that the law would prove generally unenforceable.219
Justice Stewart’s method may be analogized to a sheepherder’s
Counting Vee. By acting as a one-way valve to an enclosed area,
allowing only one sheep through at a time, the Counting Vee allows the
shepherd to count each of his sheep once and only once at the end of
grazing, to ensure that all and no others are present and accounted for,
or to systematically send the sheep to shearing.220 There is enormous
power in the process of breaking complex systems into their component
parts for individual analysis. Much of the progress of the scientific
revolution depends upon this insight, as does much profound work in
the social sciences and law. Partly because of the marked success of
these methods, we are quite adept at breaking things up into smaller and
smaller parts for legal analytical purposes, but we find it much more
difficult to reconstruct the pieces and see the whole in all of its
significance.221 This is the weakness in Justice Stewart’s Counting Vee
Model. If in the enigmatic words of Chief Justice Marshall, “it is a
constitution we are expounding,”222 then we must see the document
round and whole, giving full scope to its underlying structures and
purposes, and relating the different provisions to one another. In short,
any model of constitutional theory and interpretation generously
216 Justice Stewart subdivides the First Amendment into its various clauses and shoots down
Griswold’s claims seriatim, pointing out that the religion clauses were not even argued, that the
Connecticut law does not abridge the freedoms of speech or the press, and that it does not prevent
people from peaceably assembling or petitioning the government for a redress of grievances. Id.
at 528-29. He dispenses with the Third, Fourth and Fifth Amendments in an even more summary
fashion. Id. at 529. He closes the book on procedural due process by assuring us that the
Connecticut law is not “unconstitutionally vague” and that the appellants’ trials were not sullied
with a lack of the niceties required for criminal proceedings. Id. at 528. He rejects substantive
due process out of hand. Id. Finally, he denies that “a federal court could ever use the Ninth
Amendment to annul a law passed by the elected representatives of the people of [a state].” Id. at
529-30.
217 Id. at 530 (emphasis added).
218 Id. at 527.
219 Id. (“As a practical matter, the law is obviously unenforceable, except in the oblique
context of the present case.”).
220 See infra Diagram 9. An unkind wag might suggest that Justice Stewart’s approach risks
submitting constitutional liberties to a similar shearing; see also IVAN DOIG, ENGLISH CREEK
(Penguin Books 1985) (1984), for a commendable novel about Western life, fire and sheep, and
the practical value of the Counting Vee.
221 A lesson not lost on Humpty Dumpty.
222 McCulloch v. Maryland, 17 U.S. 316, 407 (1819).
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disposed to the worth of the framers’ work must recognize the
constitutional whole as greater than the sum of its individual provisions.
This requires rejection or a substantial modification of the Counting
Vee Model, taking it as a valuable first step only if it includes a second
step of reintegrating the different constitutional provisions (reading
them together) to tease out their deeper meanings.223
Justice Black’s more detailed dissent raises three additional
objections to the Court’s endeavor that merit further discussion. The
first is the danger of diluting specific textual rights if the court is
permitted to move from concrete constitutional language to more
general terms. Justice Black exaggerates this danger by supposing that
the Court’s choice is either to “stick to the simple language”224 of an
amendment, or to substitute the more general terms altogether.225 Such
a stark choice presents a false dichotomy. For example, there is no
reason for the Court to abandon the Fourth Amendment protection of a
house or personal property when it finds that some “expectations of
privacy,” beyond those traditional interests, are also protected.226 Still,
223 “Every constitution must be read as a whole. When this is done, the structure of the
constitution and the juxtaposition of different provisions will create a feedback mechanism that
will have the effect of breathing substantive form into individual provisions that may, by
themselves and taken out of context, seem to be formless.” Kanter, Dealing With Death, supra
note 96, at 33-34. For some examples of the Court effectively reading constitutional provisions
together, and others where the Court has failed to do so, see supra notes 60-81 and accompanying
text.
224 Griswold, 381 U.S. at 509.
225 Id. Using the Fourth Amendment as an example, Justice Black stated that “it belittles that
Amendment to talk about it as though it protects nothing but ‘privacy’ . . . . One of the most
effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the
crucial word or words of a constitutional guarantee another word or words, more or less flexible
and more or less restricted in meaning.” Id.
226 See Katz v. United States, 389 U.S. 347, 360-361 (1967) (Harlan, J., concurring).
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the danger of an unintended illiberal reading of the Constitution’s great
rights provisions cautions against cavalier or sloppy implementation of
any of the proposed models.227 Careful implementation requires as a
first step special fidelity to the text and full protection of the specific
examples of rights given by the framers.228
More precisely, as the Court moves from core textual rights to
more general meta rights, it must be careful to use a process of accretion
or addition rather than substitution.229 Good craft will ensure that
unnecessary “ambigu[ity] . . . which can easily be shrunken in
meaning”230 is avoided. The Court should require especially strong
evidentiary support for any proposed general principles that are
different in kind from the core rights upon which they are based.231
Conversely, the Court should act confidently and more expansively
when meta rights are derivable from the Constitution’s own general
clauses themselves, or when the putative right is confirmed by a number
of different concrete and general sources all pointing in the same
direction.232
Justice Black’s two other objections are structural and relate to the
proper limitations imposed on the Court by separation of powers
principles, and by the rigorous Article V amendment processes. Justice
Black feared that the Court would succumb to temptation to act as a
general “supervisory agency,” substituting the Justices’ own preferences
227 Justice Black warned: “To treat it that way [to substitute “privacy” for the words of the
amendment] is to give it a niggardly interpretation, not the kind of liberal reading . . . any Bill of
Rights provision should be given.” Griswold, 381 U.S. at 509.
228 One approach would be to acknowledge a hierarchy of rights with specific core textual
rights given the most nearly absolute protection; basic core/penumbral rights given the protection
of strict and nearly always fatal scrutiny; derivable fundamental non-textual rights given the
protection of strict, but not always fatal, scrutiny; and other lesser liberty and property interests
protected largely by procedural due process and equal protection. Cf. Doe v. Bolton, 410 U.S.
179, 211-14 (1973) (Douglas, J., joining the Court’s opinions in Roe and in Doe) (opining that
there are at least three kinds of rights: personal autonomy attributable to first amendment rights
that are absolutely protected; freedom to choose in areas of basic life decisions such as “marriage,
divorce, procreation, contraception, and the . . . upbringing of children[,]” that are fundamental
but subject to some police power regulation; and “freedom to care for one’s health and person,
freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf[,]” which are strong
rights but may be subordinated by a compelling state interest) (emphasis omitted).
229 Chief Justice Marshall and Justice Brennan have made analogous arguments for a one-way
ratchet allowing expansion while guarding against erosion. See, e.g., McCulloch v. Maryland, 17
U.S. 316, 420 (holding that the Necessary and Proper Clause justifies additional Congressional
implied powers and “cannot be construed to restrain the powers of Congress”); Katzenbach v.
Morgan, 384 U.S. 641 (1966) (holding Congress may rely on the enforcement power in § 5 of the
Fourteenth Amendment to enforce, and under certain circumstances expand, but not contract, the
individual rights provisions of § 1 of that Amendment). Justice Brennan “emphasize[d] that . . . §
5 grants Congress no power to restrict, abrogate, or dilute these guarantees.” Id. at 651.
230 Griswold, 381 U.S. at 509.
231 This is why the core-penumbra approach, applied by itself to the procedural core of the due
process clause, should provide only limited substantive rights. See supra note 206 and
accompanying text.
232 See infra Part V for a proposed model with such a feedback mechanism at its heart.
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for the political policy wisdom of “duly constituted legislative bodies,”
or worse, set itself up as a “day-to-day constitutional convention.”233
Were these fears to be fully realized, they would work a “great
unconstitutional shift of power to the courts” that would be “bad for the
courts and worse for the country.”234 Two centuries of experience with
judicial review and the Court’s general counter-majoritarian individual
rights function235 demonstrate that the risk is minimal. It is far more
likely the court will be perceived as wielding political or constitutionmaking power than that it will actually do so.
Charges of judicial overreaching are easy to make in any case
where the Court approves innovative government actions or recognizes
a new or expanded individual right. The best corrective is for judges to
exhibit a reasonable dose of institutional humility and make a genuinely
conscientious effort to base decisions on structured methods of
principled interpretation rather than ad hoc or post hoc rationalizations.
There will be cases, especially at the Supreme Court, where the lines
between broadly and generously interpreting the constitution and
impermissibly amending it, or between principles relevant and
legitimate for constitutional decision making and purely political policy,
will be reasonably disputable. That is why we refer to members of the
third branch of government as judges; we expect them to exercise
judgment on difficult questions, with careful attention to craft, principle
and conscience.236
233
234
Griswold, 381 U.S. at 520-22.
Id. at 521. However bad for the country such a major structural coup might be, the courts
would face retaliation from the political branches and retribution from the people long before it
was accomplished. The resulting de-legitimization and declawing of the courts, rather than the
diminution of the political branches, would be “worse for the country.”
235 Which Justice Black fully supports. “[T]his Court does have power, which it should
exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution.” Id.
at 520.
236 Lawrence Tribe’s comments in his well-regarded constitutional law treatise set the
appropriate tone. “At most, there is, first, a duty not to be pigheaded, to avoid becoming too
certain of one’s premises; and, second, a solemn duty to connect one’s decisions with care to an
intelligible view of the Constitution. Beyond that, one can offer no advice calculated to take
judges off the hook; nor should one try–for that is where, sometimes for better and sometimes for
worse, our constitutional system has put them.”
LAWRENCE TRIBE, AMERICAN
CONSTITUTIONAL LAW 1370 (Foundation Press, 3d ed. 2000).
Justice Benjamin Cardozo’s critique of judges who limit themselves to the mechanistic
application of existing law is also instructive:
Some judges seldom get beyond that process in any case. Their notion of their duty is
to match the colors of the case at hand against the colors of many sample cases spread
out upon their desk. The sample nearest in shade supplies the applicable rule. But, of
course, no system of living law can be evolved by such a process, and no judge of a
high court, worthy of his office, views the function of his place so narrowly. If that
were all there was to our calling, there would be little of intellectual interest about it.
The man who had the best card index of the cases would also be the wisest judge. It is
when the colors do not match, when the references in the index fail, when there is no
decisive precedent, that the serious business of the judge begins. He must then fashion
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Raoul Berger and Robert Bork’s criticisms of Griswold take
largely a strict positivist view of rights, with only textually specific
enumerated rights judicially enforceable. Along the way, they reject
more expansive theories of implied rights like the Sign Post
Interpretation Model relying on the Ninth Amendment,237 substantive
fundamental notions of due process or equality238 and any system of
developed meta rights.239 Judge Bork candidly concedes that he once
thought such a meta system plausible and appropriate for finding
individual autonomy rights,240 but apparently came to his more recent
restrictive views after concluding that he could not logically derive a
satisfactory system.241 This failure was preordained by the unduly rigid
preconditions he imposed: a complete set of scientific principles for the
derivation and description of the contour of autonomy rights, and the
ability to derive them relying solely on a deductive logical process.242
Ultimately the lack of illusive and unrealistic perfection left the
individual rights claims without judicial recourse, and in the hands of
the messy utilitarianism of the political branches. Judge Bork’s
approach is a classic example of “the perfect is the enemy of the good.”
Once imperfect but legitimate systems of judicial development and
enforcement of rights are allowed, of course, errors will be made.
These errors will be of two types: those against the individual when a
claim of right is erroneously denied and those against the will of the
represented majority when an unjustified claim of right is erroneously
allowed. Views about the propriety of judicial action in this class of
law for the litigants before him.
BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 20-21 (Yale University Press
1921).
237 See generally Raoul Berger, The Ninth Amendment, 66 CORNELL L. REV. 1, 1-14 (1981).
Berger does seem to acknowledge the existence of rights beyond those given positively by
government, or provided by concrete constitutional text: “The words ‘rights retained by the
people’ . . . expressed a political postulate . . . that there remained reserved to the people an area
of unsurrendered rights.” Id. at 5-6. Yet he denies that such rights are enforceable by the federal
judiciary: “Justice Goldberg leaps too lightly from the ‘existence of rights’ retained by the people
to a federal power to protect them.” Id. at 10; see also Raoul Berger, The Ninth Amendment, As
Perceived by Randy Barnett, 88 Nw. U. L. REV. 1508 (1994) (critique of Barnett’s Ninth
Amendment theory).
238 See Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J.
1, 11 (1971) (“Most obviously, it follows that substantive due process . . . is and always has been
an improper doctrine. Substantive due process requires the Court to say, without guidance from
the Constitution, which liberties or gratifications may be infringed by majorities and which may
not . . . . [M]ost of substantive equal protection is also improper.”).
239 Id. at 8 (“The judge must stick close to the text and the history, and their fair implications,
and not construct new rights”).
240 Id.
241 Id.
242 For a more comprehensive view of Judge Bork’s views in this regard, see generally
ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW
(1990), and especially Chapter 12 of the book, entitled The Impossibility of All Theories that
Depart from Original Understanding.
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cases turn largely on one’s assessment of the relative costs of these two
kinds of errors.243 Confirmed disciples of utilitarian democracy will
rank high, and abhor, the cost to the general welfare when society is
obliged to restrain its collective policies to accommodate the putative
right for the lone individual. Those less sanguine about the just
outcome of unchecked democratic majoritarian decision making, and
committed to the principle of individual liberty as a constitutional check
on democracy, will consider the cost bearable when spread thinly over
the majority, but extreme when the full force of government coercion is
erroneously imposed on the individual.244
Individual justices have also criticized substantive rights models in
the Supreme Court’s fundamental rights decisions since Griswold.
These views have been mostly limited to Chief Justice Rehnquist and
Justices Scalia, Thomas and White. Justice Black retired six years after
Griswold in 1971, and the other Griswold dissenter, Justice Stewart,
reconciled himself to its result based on his apparent 1973 epiphany
accepting substantive due process after all in Roe v. Wade.245 Many
commentators initially expected Justice Kennedy to join the critics
based in large part on his votes in several abortion cases.246 But he
joined Justice O’Connor’s decisive opinion in Planned Parenthood of
Southeastern Pennsylvania v. Casey,247 reaffirming the basic premises
and holding of Roe. His views are further confirmed in Romer v.
Evans248 and Lawrence v. Texas.249 In fact, his Lawrence majority
opinion gives particularly full-throated voice to the Griswold notion of
personal autonomy:
243
244
See infra text accompanying notes 346-348 in Part V.
The framers and the constitutional documents they drafted are surely to be numbered
prominently among these. James Madison wisely warned of the dangers of tyranny from
majority factions and discussed structural constraints (bicameralism, republican/representative
form of government, checks and balances/separation of federal executive, legislative and judicial
powers, and federalism–the vertical distribution of government powers between the national and
state governments), and counter-majoritarian judicial enforcement of rights safeguards built into
the Constitution and its Bill of Rights amendments to guard against the worst of such potential
abuses. Or, as Justice Brandeis so aptly put it in discussing the purposes of Separation of Powers,
one of the structural protections of liberty, as not “to promote efficiency but to preclude the
exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the
inevitable friction incident to the distribution of the governmental powers among three
departments, to save the people from autocracy.” Myers v. United States, 272 U.S. 52, 293
(1926) (Brandeis, J., dissenting).
245 410 U.S. 113, 167-68 (1973) (Stewart, J., concurring) (noting that the Griswold majority
tried to avoid relying on due process, repeating his view that “the Connecticut law did not violate
any . . . specific provision of the Constitution[,]” but conceding that Griswold was “one in a long
line of pre-Skrupa cases decided under the doctrine of substantive due process, and [Stewart] now
accept[ed] it as such”).
246 See, e.g., Webster v. Reprod. Health Servs., 492 U.S. 490 (1989).
247 505 U.S. 833 (1992).
248 517 U.S. 620 (1996).
249 539 U.S. 558 (2003).
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Liberty presumes an autonomy of self that includes freedom of
thought, belief, expression and certain intimate conduct. The instant
case involved liberty of the person both in its spatial and more
transcendent dimensions.250
Troxel v. Granville251 reversed a state family court decision
granting child visitation rights to grandparents against the wishes of the
child’s parent. The Court relied on application of a fundamental right of
fit “parents to make decisions concerning the care, custody and control
of their children.”252 Justice Scalia objected, contending that the
Constitution does not give the Court power to enforce unenumerated
rights.253 Justice Thomas concurred in the Court’s result, but indicated
that he too would be open to an argument in a future case that judicial
enforcement of unenumerated rights is impermissible, at least as a
matter of substantive due process.254
Bowers v. Hardwick255 and Lawrence v. Texas256 first approved,
then rejected, the constitutionality of state statutes criminalizing private
adult consensual homosexual conduct. Much of the difference in the
views of the contending justices depended upon their framing of the
nature of the claimed right. Justice White’s plurality in Bowers (and
Justice Scalia’s dissent in Lawrence) presented the issue as whether the
Constitution grants a specific fundamental right to homosexuals to
engage in sodomy, while the Lawrence majority (and Justice
Blackmun’s earlier dissent in Bowers) conceived the claimed right in
much broader terms of autonomy and intimate relationship choices in
the home, including private matters of consensual adult sex.257 As is
250
251
252
253
254
Id. at 562.
530 U.S. 57 (2000).
Id. at 66.
Id. at 91-92 (Scalia, J., dissenting).
Id. at 80 (Thomas, J., concurring). Justice Thomas noted that “neither party has argued that
our substantive due process cases were wrongly decided and that the original understanding of the
Due Process Clause precludes judicial enforcement of unenumerated rights,” and therefore he
avoided reconsidering the “merits” of substantive due process. Id.
255 478 U.S. 186 (1986).
256 539 U.S. 558 (2003).
257 In Bowers, Justice White framed the question as “whether the Federal Constitution confers
a fundamental right upon homosexuals to engage in sodomy[.]” 478 U.S. at 190. Justice
Blackmun vigorously rejected that analysis, comparing it to an assertion that “Katz v. United
States . . . was about a fundamental right to place interstate bets from a telephone booth,” and
stated that “what the Court really has refused to recognize is the fundamental interest all
individuals have in controlling the nature of their intimate associations with others.” Id. at 199,
206. In Lawrence, Justice Kennedy opined that the anti-sodomy laws “seek to control a personal
relationship that, whether or not entitled to formal recognition in the law, is within the liberty of
persons to choose without being punished as criminals.” 539 U.S. at 567. Justice Scalia claimed
that the Court had failed to dispense adequately with the Bowers holding by noting that “nowhere
does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right[.]’” Id. at 586
(Scalia, J., dissenting). For a more thorough analysis of this question, see Laurence H. Tribe &
Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057
(1990).
2006]
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often the case, the statement of the legal question and the analytical
frame of reference presented goes a long way in determining the
outcome of a decision. Different formulations, like those in Bowers and
Lawrence, create a situation where the contending blocs of justices are
largely talking past each other.
Predictably, Justices White and Scalia concluded that homosexual
sodomy is not a right “deeply rooted in our Nation’s history and
tradition.”258 Justice Scalia further suggested that the Lawrence right is
unprincipled unless the Court would also be willing to strike “laws
against bigamy, same-sex marriage, adult incest, prostitution,
masturbation, adultery, fornication, bestiality, and obscenity[.]”259 He
launched his biggest salvo against the Court for what he claimed as its
usurpation of the democratic process by “largely sign[ing] on to the socalled homosexual agenda, . . . . [and] tak[ing] sides in the culture war,”
in both cases meaning a political agenda and war.260
Justice Scalia urged the Court to get out of the business of
unenumerated liberty rights,261 and limit itself mostly to a much
narrower process-oriented “role of assuring, as neutral observer, that the
democratic rules of engagement are observed.”262 This critique, and his
other calls for a very limited judicial role bound tightly by text and only
the most specific examples from framers’ history and tradition,263 are
258 Bowers, 478 U.S. at 192; see id. at 192-94 (holding that, in light of a long history of
criminal prohibition of sodomy, “to claim that a right to engage in such conduct is ‘deeply rooted
in this Nation’s history and tradition’ . . . is, at best, facetious”); Lawrence, 539 U.S. at 595-98
(Scalia, J., dissenting) (contending that “Bowers’ conclusion that homosexual sodomy is not a
fundamental right ‘deeply rooted in this Nation’s history and tradition’ is utterly unassailable”).
259 Id. at 590; see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 984 (1992)
(Scalia, J., dissenting) (comparing abortion to “homosexual sodomy, polygamy, adult incest, and
suicide, all of which are equally ‘intimate’ and ‘deep[ly] personal’ decisions involving ‘personal
autonomy and bodily integrity’”).
260 Lawrence, 539 U.S. at 602.
261 Casey, 505 U.S. at 1002 (Scalia, J., dissenting) (“We should get out of this area, where we
have no right to be, and where we do neither ourselves nor the country any good by remaining”).
262 Lawrence, 539 U.S. at 602.
263 See, e.g., Michael H. v. Gerald D., 491 U.S. 110 (1989) (holding that a California law,
which in most instances conclusively presumes that a child born to a married woman cohabiting
with her husband is the child of the husband, does not violate the substantive due process rights of
the biological father attempting to establish paternity and exercise parental visitation rights).
Justice Scalia announced the Court’s judgment in a plurality opinion, and expressed his views
that to be recognized as a constitutional right a claim must not only be labeled a fundamental
aspect of liberty, id. at 122-24, but also must be shown to be protected by history and tradition at
the most specific level available for that tradition. Id. at 127-28 n.6.
Though the dissent has no basis for the level of generality it would select, we do: We
refer to the most specific level at which a relevant tradition protecting, or denying
protection to, the asserted right can be identified. . . . Although assuredly having the
virtue (if it be that) of leaving judges free to decide as they think best when the
unanticipated occurs, a rule of law that binds neither by text nor by any particular,
identifiable tradition is no rule of law at all.
Id. Justices O’Connor and Kennedy, concurring in part, would leave room for higher levels of
generality in basing rights on historical tradition. Id. at 132. Justice Brennan, joined by Justices
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directed principally against what he labeled somewhat derisively “the
doctrine known as ‘substantive due process’[.]”264 For reasons noted
earlier, skepticism about a broad doctrine of substantive due process as
a central model for rights that are not clearly textual is partially
justified.265 Justice Scalia was of course correct in noting that “[t]he
Fourteenth Amendment expressly allows States to deprive their citizens
of ‘liberty,’ so long as ‘due process of law’ is provided.”266 But his
conclusion that “there is no right to ‘liberty’ under the Due Process
Clause”267 is too facile and can only be brought within proper reach
with an important modifier like no unfettered right or no absolute right.
The Court’s trio of decisions upholding Missouri, Washington and
New York State restrictions on delicate end of life issues gives us a
fascinating series of soul-searching opinions with somewhat surprising
and nearly unanimous sympathy for a varied range of non-textual
personal rights.268 Still, in refusing to go as far as the plaintiffs urged,
Chief Justice Rehnquist in the majority opinion in Glucksberg again
expressed great reluctance to expand substantive due process.269 The
Chief Justice largely confined the doctrine to “concrete examples” that
are “deeply rooted in our legal tradition,” and he eschewed Justice
Souter’s broader approach.270 In fact, Justice Souter hardly proposed a
radical or untethered view.271 But he did support a system for
unenumerated rights based upon a broader array of sources, with a more
open ‘living tradition,’ and most importantly, he prescribed utilization
of a judicial ‘Common Law Method’ of interpretation of those
sources.272
Marshall and Blackmun, dissenting, rejected both Justice Scalia’s exclusive reliance on tradition
as a limiting source of liberty rights, and on any one specific level of generality when considering
tradition as one relevant source among many others. Id. at 141-42. For an interesting debate
about proper levels of generality, see Bruce Ackerman, Liberating Abstraction, 59 U. CHI. L.
REV. 317 (1992); Frank H. Easterbrook, Abstraction and Authority, 59 U. CHI. L. REV. 349
(1992).
264 Lawrence, 539 U.S. at 593.
265 See supra Part II.B, discussing the justifications and limitations of Due Process as a
Cauldron on Its Own Bottom Model.
266 Lawrence, 539 U.S. at 592.
267 Id.
268 Cruzan v. Mo. Dep’t of Health, 497 U.S. 261 (1990); Washington v. Glucksberg, 521 U.S.
702 (1997); Vacco v. Quill, 521 U.S. 793 (1997).
269 “We must . . . ‘exercise the utmost care’ . . . lest the liberty protected by the Due Process
Clause be subtly transformed into the policy preferences of the Members of this Court[.]” 521
U.S. at 720 (quoting Moore v. E. Cleveland, 431 U.S. 494, 502 (1977)).
270 “[W]e have regularly observed that the Due Process Clause specially protects those
fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and
tradition’ (quoting Moore, 431 U.S. at 502) . . . . Justice Souter . . . would largely abandon this
restrained methodology[.]” 521 U.S. at 720-21.
271 Id. at 752, 765-68 (Souter, J. concurring in the judgment).
272 Id. at 769-70. For additional support of the common law method, see David A. Strauss,
Common Law, Common Ground, and Jefferson’s Principle, 112 YALE L.J. 1717 (2003); David
A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996); see also
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Justice Scalia, in other writings, takes particular umbrage at this
common law methodology.273 It makes sense that the substantive
common law properly should occupy a considerably lower role in the
hierarchy of legitimate sources of law in constitutional cases once we
committed our nation to the supremacy of a written constitution. It is
quite another thing, and a major error in Justice Scalia’s critique, to
reject the common law method by lumping it together with largely
superseded substantive common law rules. It is precisely common law
courts and judges exercising the common law method of reasoning that
the framers admired and had in mind in crafting the federal judicial
branch of government. The framers expected Article III federal judges
to be trained and steeped in this method, to exercise independence from
the political branches and to employ this common law method in
deciding constitutional cases. This context and history ought to satisfy
even confirmed originalists or textualists.
Most of the criticism and appeals from within the Supreme Court
for the outright rejection, or narrowing, of personal rights that are not
clearly textual were made in the questionable context of substantive due
process. This is not surprising since, unfortunately, it has been very
rare, even for proponents of more expanded rights on the Court, to go
beyond a cursory mention of any model other than substantive due
process, once Griswold was decided. The fault lies in both camps.
Because the Substantive Due Process Model has limiting weaknesses,
this has given the rejectionist and narrow positions more appeal and
cachet than they deserve. Arguments that are plausible for cabining
substantive due process often do not qualify as effective rejoinders to
other approaches. These unfortunate circumstances have deprived us of
a healthy debate over more sophisticated, nuanced and comprehensive
models that might be proposed. This is the greater tragedy because the
creative tension of such a debate is needed to test models and to
promote the development of refined and improved models that will
garner more legitimacy on and off the Court.274
BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 22-23 (Yale University Press
1921) (“The common law does not work from pre-established truths of universal and inflexible
validity to conclusions derived from them deductively. Its method is inductive, and it draws its
generalizations from particulars.”); GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF
STATUTES (Harvard University Press 1982).
273 ANTONIN SCALIA, Common-Law Courts in a Civil-Law System: The Role of United States
Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION,
supra note 108 at 3-47; Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV.
1175 (1989).
274 There is at least modest cause to believe that Justice Thomas and Justice Scalia are each
open to a second look for additional judicially enforceable rights in a model not confined to the
ground of substantive due process. The trigger might be the Fourteenth Amendment’s Privileges
or Immunities clause. See infra Part IV.A, and consider especially Saenz v. Roe, 526 U.S. 489,
527-28 (1999) (Thomas, J., with whom Rehnquist, C.J., joins, dissenting):
[When] the Fourteenth Amendment was adopted, people understood that ‘privileges or
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IV. TENTH JUDGE APPROACHES:
ADDITIONAL SOURCES FOR META PRINCIPLES
It is now useful to examine the interplay among several additional
sources and methodologies in order to advance the formulation of a
more comprehensive and satisfactory model for approaching
fundamental rights analysis. Particular attention is given to sources that
offer promise as meta, general or conceptual principles, and the
corresponding interpretive methods to handle them.
A. Reviving Ophelia: Privileges or
Immunities of the Fourteenth Amendment
Much of the reason for the Court’s overweening focus on
substantive due process can be traced to the cramped interpretations and
stunted growth of the Privileges or Immunities Clause for almost all of
the time since its ratification as part of the Fourteenth Amendment in
1868.275 This is primarily the result of the Court’s 1873 five-to-four
immunities of citizens’ were fundamental rights . . . . Because I believe that the demise
of the Privileges or Immunities Clause has contributed in no small part to the current
disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating
the meaning in an appropriate case.
Id. (Justice Thomas does suggest he is likely to limit himself to an historically narrowed list of
rights.); see also Clarence Thomas, The Higher Law Background of the Privileges or Immunities
Clause of the Fourteenth Amendment, 12 HARV. J.L. & PUB. POL’Y 63, 64 (1989) (promoting
principles of natural law, as embodied in the Privileges or Immunities Clause, as “the only
alternative to the willfulness of both run-amok majorities and run-amok judges”). Or the trigger
might be notions of Equality, see infra Part IV.B, or the composite model as suggested infra in
Part V, that relies on several constitutional textual triggers outside of the Due Process Clause.
Justice Scalia suggested in his Planned Parenthood of Se. Pa. v. Casey dissent, 505 U.S. 833, 980
n.1 (1992), that his usual demand for only the most specific level of generality available of any
historical tradition of rights under substantive due process should give way when there is other
text supporting a broader right. His example was that the Equal Protection Clause, with its broad
promise of racial equality, should trump more narrow specific tradition outlawing interracial
marriage even after the adoption of the Fourteenth Amendment in 1868, thereby justifying the
Court’s 1967 decision striking down Virginia’s criminal anti-miscegenation law in Loving v.
Virginia, 388 U.S. 1 (1967). He also commented favorably about the clause in Scalia, The Rule
of Law as a Law of Rules, supra note 273, at 1178 (“The Equal Protection Clause epitomizes
justice more than any other provision of the Constitution.”).
275 U.S. CONST. amend. XIV (1868) (“No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States”). The original Constitution
also, of course, contains a privileges and immunities clause, U.S. CONST., art. IV, § 2, but it is not
a rights provision in quite the same sense as the Fourteenth Amendment. The first three Articles
of the Constitution deal primarily with the creation, separation of powers and checks and balances
among the three federal branches of government. The topics of Article IV (full faith and credit;
privileges and immunities; extradition of criminal suspects; rendition of escaped slaves;
guaranteeing the territorial integrity of the existing states as the nation grew; governmental
property disposition; state republican form of government guarantee; and a federal pledge to
protect each state against invasion and, at the request of the state, internal domestic violence)
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decision in Slaughter-House Cases,276 rejecting plaintiff-butchers’
contentions that Louisiana’s law granting a regulated monopoly to
another company violated their rights under the Civil War
Amendments. The real battle between Justice Miller, writing for the
majority, and the dissenting views of Justices Field and Bradley, was
whether the Fourteenth Amendment should have a narrow or broad
construction. A cursory look at any contemporary constitutional law
casebook, or at the docket of the Supreme Court, shows that Justice
Miller’s victory for the narrow view was temporary, and that a broader,
more generous view of the Civil War Amendments has won the bigger
war in a rout.
The Privileges or Immunities Clause, however, suffered a much
more lasting injury as collateral damage largely due to historical
accident. Ironically, this is because all of the parties and justices in
Slaughter-House Cases cursorily dismissed plaintiffs’ due process,
equal protection and Thirteenth Amendment arguments as nonsubstantial, and treated the privileges or immunities claim as the one
weighty constitutional challenge that had to be taken seriously. This
left the Due Process and Equal Protection Clauses as largely unformed
vessels that were much easier to fill by the Court as it began to expand
its view of rights protections. Conversely, the more detailed and
crimped interpretation of privileges or immunities in 1873 erected a
more formidable barrier. Any subsequent court inclined toward a robust
interpretation of privileges or immunities would be required to reject
precedent directly, a distasteful prospect especially since it has not been
necessary for the other less clearly interpreted clauses. Finally, after
one hundred twenty-six years, the Supreme Court took the first
substantial intrepid step in this direction in Saenz v. Roe.277
It is still early days of course and it remains to be seen if Saenz will
strongly suggest that it was limited to dealing primarily with comity among the states,
discriminatory treatment of other states’ citizens by a state, and the constitutive and
intergovernmental structural parts of the Constitution, including the federalist relationship
between the central government and the states. This was Justice Miller’s view in SlaughterHouse Cases, 83 U.S. (16 Wall.) 36, 77 (1873) (“[The Article IV clause’s] sole purpose was to
declare to the several States, that whatever those rights, as you grant or establish them to your
own citizens . . . the same, neither more nor less, shall be the measure of the rights of citizens of
other States within your jurisdiction.”); see also John Harrison, Reconstructing the Privileges or
Immunities Clause, 101 YALE L.J. 1385, 1400-01 (1992) (“The interstate comity reading[,]”
which “requires states to give out-of-state Americans at least the same privileges and immunities
that their own citizens enjoy[,]” was “very prominent and appears to have been the mainstream
interpretation” of the Article IV clause in the first half of the 19th century). It can be expected
that Article IV will, therefore, be of only limited structural use (though any definitional content of
the words “privileges” and “immunities” may be of more use) in helping to interpret the textually
similar provision in the Fourteenth Amendment, which is clearly an individual rights provision
listed among exclusively rights provisions. U.S. CONST. amend. XIV, § 1.
276 83 U.S. 36 (1873).
277 526 U.S. 489 (1999).
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be confined mainly to “right to travel” issues, or whether it truly
presages a revival and fresh comprehensive re-conception of privileges
or immunities. It is to be hoped that the latter is the case, and that Saenz
is indeed the long-awaited harbinger of broad renewed Supreme Court
interest.278 The Privileges or Immunities Clause is a more natural
source of substantive fundamental rights compared with Due Process,
and it offers a number of other advantages for the scaffolding of a
robust composite model.
To begin, the Privileges or Immunities Clause does not suffer any
of the textual awkwardness of substantive due process.279 Both words,
“privileges” and “immunities,” positively evoke substantive concepts of
rights at least as much as procedural ones, and the word “immunities” in
particular is a powerful verbal repository for negative checking rights
against the government.280 Similarly, this clause is a more comfortable
textual fit for much of the Court’s work incorporating clauses of the Bill
of Rights.281 Though most of the incorporated clauses may be seen as
strictly procedural in character, aspects of freedom of speech and press,
the religion clauses, the just compensation clause, the ban on excessive
fines and cruel and unusual punishments are clearly substantive, and
their incorporation through due process is less than seamless. An
additional conundrum is also solved. Sole reliance on the Due Process
Clause for incorporation would seem to imply that due process itself
must contain the content of the incorporated Bill of Rights clauses. If
so, an objector could claim this would mean that Fifth Amendment due
process also contains the content of the other Bill of Rights provisions
leaving them technically as “mere surplusage,” a presumptively
inadmissible interpretation.282 And, unlike due process, Privileges or
278 In this regard it is promising that Justice Thomas and Chief Justice Rehnquist, although
dissenting, expressed their openness to finding ‘fundamental’ Privileges or Immunities rights.
See supra note 274. Justice Scalia joined the majority opinion in Saenz, demonstrating directly
his willingness to rely on the Privileges or Immunities Clause for rights he would not have found
elsewhere.
279 See supra Part II.B.2.
280 This includes rights such as Griswold’s shield of personal autonomy, and the qualified
“right to be let alone” from “unjustifiable intrusion by the Government[.]” Olmstead v. United
States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (“The makers of our Constitution . . .
conferred, as against the Government, the right to be let alone—the most comprehensive of rights
and the right most valued by civilized men.”).
281 See generally Kevin Christopher Newsom, Setting Incorporation Straight: A
Reinterpretation of the Slaughter-House Cases, 109 YALE L.J. 643, 736 (2000) (contending that
the Privileges or Immunities Clause could replace due process “not only as a means for
incorporating substantive Bill of Rights freedoms, but also as a means for protecting rights not
explicitly specified in the constitutional text”); Michael Kent Curtis, Historical Linguistics,
Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States, 78
N.C. L. REV. 1071 (2000) (applying originalist analysis to the Privileges or Immunities Clause
and finding support for Justice Black’s claim that the Clause applies the Bill of Rights to the
States).
282 “It cannot be presumed that any clause in the constitution is intended to be without effect;
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Immunities is not burdened with the unfortunate legacies of Dred Scott
or Lochner.
There is another point of text and structure in favor of Privileges or
Immunities. After defining the conditions for and granting citizenship,
Section 1 of the Fourteenth Amendment identifies three kinds of rights
and divides them into a hierarchical structure. Privileges or Immunities
are protected for only the most restricted class of individuals, United
States citizens; equal protection is afforded to all persons within each
state’s jurisdiction, and due process applies to the broadest class of
individuals, any person at all deprived of life, liberty or property by the
state. To the extent that citizenship is a reasonable surrogate, at least for
some purposes, for identifying those who have been inculcated with
constitutional values and are willing to undertake the duties and
obligations imposed by the Constitution, it makes sense that the
Privileges or Immunities Clause should afford the broadest array of
rights. These rights can be expected to be quintessentially American,
and specifically substantively and procedurally more protective than the
baseline civilizing floors of fundamental fairness rights of due process,
or of equal protection rights.283
Justice Miller based his exceedingly narrow Slaughter-House view
of Fourteenth Amendment privileges or immunities on three flawed
premises: that because the Civil War amendments were adopted
primarily to eliminate African slavery and to address the legal problems
of the former slaves, their construction should be confined almost
exclusively to deal with those problems even where the language of the
amendments is general;284 that anything that is a privilege and immunity
for purposes of Article IV is by that fact alone not one for the
and therefore such construction is inadmissible, unless the words require it.” Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 174 (1803).
283 Equal protection rights are also different in character from rights under either of the other
two clauses. Both privileges or immunities and due process regulate the government’s
relationship with the single individual, to a large extent without regard for how the government
relates to other individuals. Equal protection, on the other hand, only arises when the state,
consciously or inadvertently, classifies individuals into two or more groups for the purpose of
distributing benefits or penalties. Equal protection analysis inherently requires comparisons of
individuals or groups, and in this sense is more comparative or relativistic than analysis under the
other clauses. This conditional aspect has led at least one commentator to erroneously dismiss
equal protection rights as mere phantoms. See Peter Westen, The Empty Idea of Equality, 95
HARV. L. REV. 537, 542 (1982) (arguing that “the entitlements people mistakenly attribute to the
idea of equality all derive from external substantive rights”). Westen continues his argument in
Peter Westen, The Meaning of Equality in Law, Science, Math, and Morals: A Reply, supra note
145, at 604 and Peter Westen, To Lure the Tarantula From its Hole: A Response, 83 COLUM. L
.REV. 1186 (1983).
284 Slaughter-House Cases, 83 U.S. (16 Wall.) at 71-72. With respect to the Equal Protection
Clause, for example, Justice Miller incorrectly predicted that the clause would never be used
except in cases involving “discrimination against the negroes as a class, or on account of their
race[.]” Id. at 81.
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Fourteenth Amendment;285 and that the Civil War amendments did not
work a substantial re-balancing of federalism, thus still leaving the
states as the sole protectors of their own citizens’ non-race related
rights.286 The combination of Justice Miller’s three errors with the
correct structural point that Article IV is limited primarily to addressing
interstate comity and fair treatment of other states’ citizens,287 led him
to take away with his left hand the force of privileges and immunities
rights that he tantalizingly held out with his right hand.288
Stripped of error, however, Justice Miller’s discussion of the words
privileges and immunities offers the beginning of meaningful content
for them as words which can now be used in a Fourteenth Amendment
Meta Principle. Relying on Corfield v. Coryell,289 he quoted Justice
Washington’s discussion of Article IV as describing “these expressions
to those privileges and immunities which are fundamental; which
belong of right to the citizens of all free governments,” and he then
elaborated that they encompass “nearly every civil right for the
establishment and protection of which organized government is
instituted.”290 While the dissenters relied to some extent on preconstitutional concepts of natural law,291 Justice Bradley’s dissent also
285 Justice Miller drew a distinction between “privileges and immunities of the citizen of the
United States,” and “privileges and immunities of the citizen of the State,” and held that “it is
only the former which are placed by [the fourteenth amendment Privilege or Immunities] clause
under the protection of the Federal Constitution . . . . the latter must rest for their security and
protection where they have heretofore rested,” id. at 74-75, that is with the States.
286
Was it the purpose of the fourteenth amendment . . . to transfer the security and
protection of all the civil rights which we have mentioned, from the States to the
Federal government? . . . [T]hese consequences are so serious, so far-reaching and
pervading, so great a departure from the structure and spirit of our institutions . . . . We
are convinced that no such results were intended by the Congress which proposed these
amendments, nor by the legislatures of the States which ratified them.
Id. at 77-78.
287 See supra note 275.
288 After describing the Privileges and Immunities of Article IV quite broadly, Justice Miller
eliminated most of their efficacy by stating that “‘these fundamental principles are . . . . subject,
nevertheless, to such restraints as the government may prescribe for the general good of the
whole.’” Slaughter-House Cases, 83 U.S. (16 Wall.) at 76 (quoting Corfield v. Coryell, 6 F. Cas.
546, 551-52 (C.C.E.D. Pa. 1823)). He further contended that Article IV:
did not create those rights, which it called privileges and immunities of citizens of the
States. It threw around them in that clause no security for the citizen of the State in
which they were claimed or exercised. Nor did it profess to control the power of the
State governments over the rights of its own citizens. Its sole purpose was to declare to
the several States, that whatever those rights, as you grant or establish them to your
own citizens, or as you limit or qualify, or impose restrictions on their exercise, the
same, neither more nor less, shall be the measure of the rights of citizens of other
States within your jurisdiction.
Slaugher-House Cases, 83 U.S. (16 Wall.) at 77.
289 6 F. Cas. 546 (C.C.E.D. Pa. 1823).
290 Slaughter-House Cases, 83 U.S. (16 Wall.) at 76 (emphasis added).
291 Id. at 96-97 (Field, J. dissenting) (stating his opinion that Fourteenth Amendment
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expressly and correctly concluded that the Fourteenth Amendment
textually embodies “the intention of the people of this country . . . to
provide National [Constitutional] security against violation by the States
of the fundamental rights of [their own, or another State’s,] citizen.”292
In sum, fundamental rights protected by the federal Constitution as
Privileges or Immunities “do not derive their existence from [the State],
and cannot be destroyed by [State] power.”293
Supreme Court dicta occasionally invoked Privileges or
Immunities even before Saenz.294 Other commentators have suggested
more judicial reliance on this clause, and have already begun the work
of giving analytical form and content to the Fourteenth Amendment
Privileges or Immunities Clause.295 For this work to bear fruit, scholars
privileges or immunities refer “to the natural and inalienable rights which belong to all
citizens . . . of all free governments”) (emphasis added). Justice Field also referred to the “natural
right of every Englishman[,]” and continued that there are “inalienable rights, rights which are the
gift of the Creator, which the law does not confer, but only recognizes.” Id. at 104-05; see also
id. at 114 (Bradley, J. dissenting) (“there are certain fundamental rights . . . of citizens of any free
government”).
292 Id. at 122 (Bradley, J., dissenting) (emphasis added). Justice Field’s principal dissent,
joined by all three of the other dissenters, the Chief Justice, and Justices Swayne and Bradley,
asserted a similar conclusion that the Fourteenth Amendment was intended to, and does, “protect
the citizens of the United States against the deprivation of their common rights by State
legislation[,]” id. at 89, that is, to place these rights “under the protection of the National
government.” Id. at 93; see also id. at 100-01.
293 Id. at 95-96.
294 See, e.g., Hague v. Comm. for Indus. Org., 397 U.S. 496, 515 (1939) (stating that “use of
the streets and public places has, from ancient times, been a part of the privileges, immunities,
rights and liberties of citizens”); Edwards v. California, 314 U.S. 160, 181-186 (1941) (Jackson,
J., concurring) (locating a right to interstate migration within the Privileges or Immunities
Clause).
The Clause also played a role in the incorporation debate. The Court initially rejected a
series of arguments that the Fourteenth Amendment absorbed or incorporated the Bill of Rights
protections against the states, and that “privileges or immunities of citizens of the United States”
included the provisions of the Bill of Rights. See Twining v. New Jersey, 211 U.S. 78 (1908)
(holding that the Clause does not apply the Fifth Amendment’s protection against compulsory
self-incrimination to the states); Palko v. Connecticut, 302 U.S. 319, 326-28 (1937) (reaffirming
Twining and rejecting the idea of incorporation of double jeopardy though, curiously, describing
the protections of the Bill of Rights as “immunities and privileges”); Adamson v. California, 332
U.S. 46, 51-53 (1947) (reaffirming Twining and Palko). Justice Black continuously and
vigorously opposed this view. See Adamson, 332 U.S. at 68-92 (Black, J., dissenting); Duncan v.
Louisiana, 391 U.S. 145, 166 (1968) (Black, J., concurring) (reasserting his position that
privileges and immunities were “an eminently reasonable way of expressing the idea that
henceforth the Bill of Rights shall apply to the States. What more precious ‘privilege’ of
American citizenship could there be than that privilege to claim the protections of our great Bill
of Rights?”).
For further historical examples of judicial use of the Clause and the term “privileges and
immunities,” see Curtis, supra note 281, at 1124-32, 1138-43; see also J. Harvie Wilkinson III,
The Fourteenth Amendment Privileges or Immunities Clause, 12 HARV. J.L. & PUB. POL’Y 43,
44-48 (1989).
295 See, e.g., Curtis, supra note 294, at 1071 (arguing that “privileges or immunities” includes
the rights provisions of the Constitution); John Harrison, Reconstructing the Privileges or
Immunities Clause, 101 YALE L. J. 1385 (1992); Philip B. Kurland, The Privileges or Immunities
Clause: ‘Its Hour Come Round at Last’?, 1972 WASH. U. L.Q. 405 (1972) (identifying the
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and judges need to pay careful attention to the Constitutional text,
proto-constitutional documents such as Magna Carta, the English Bill of
Rights and the Declaration of Independence, original history–direct and
inferential, precedent, moral philosophy, further legal scholarship, and
sound principles of Constitutional construction. Saenz itself points
Privileges or Immunities along a promising path as a worthy candidate
as one of the Constitution’s expressly stated meta principles. In
affirming the concrete right of more newly arrived California citizens to
receive the same welfare benefits as longtime residents, the Court
constructed a strong composite right made up of the more general
concepts of citizenship and personal mobility.296 As noted elsewhere,
this is precisely the sort of meta principle one would expect the framers
to include in a rights-oriented constitution, with composite structure
adding epoxy-like strength.297
B.
Notions of Liberty, Equality, and Pursuit of Happiness: The
Declaration and The Constitution
Various notions of liberty, equality and pursuit of happiness have
played prominent and often controversial roles throughout the history of
American constitutionalism.
The Declaration of Independence
famously asserts that “all men are created equal,” and lists “Liberty, and
the Pursuit of Happiness” among the unalienable rights of all men.298
But the diversity of notions of liberty, equality, and the pursuit of
happiness were most often left implicit and contradictory in our 1789
Constitution. The first ten amendments (the Bill of Rights), adopted
just two years later in 1791, began to give more concrete form and
content to the founders’ normative views of liberty and pursuit of
happiness.299 Yet the Bill of Rights almost entirely ducked two
Clause as a better source of substantive rights than due process or equal protection); Thomas, The
Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment,
supra note 274 (asserting that proper application of the Clause should be guided by the Framers’
natural law philosophy); Laurence H. Tribe, Saenz Sans Prophecy: Does the Privileges or
Immunities Revival Portend the Future—Or Reveal the Structure of the Present? 113 HARV. L.
REV. 110, 183 (1999) (contending that the “core idea around which the privileges or immunities
of United States citizenship should be elaborated . . . [is] the right to individual self-government,
as embodied in, but not exhausted by, some . . . parts of the Bill of Rights”); TRIBE, AMERICAN
CONSTITUTIONAL LAW, supra note 236, at 1312-1321.
296 Saenz v. Roe, 526 U.S. 489, 500-07 (1999).
297 See supra notes 65-80 and accompanying text; see generally infra Part V.
298 Interestingly, Jefferson’s draft castigated the British King for the “execrable commerce” of
the slave trade, but this section of the draft was deleted. See WILLS, supra note 158, at 65-75.
299 Much of the content of the Bill of Rights is dedicated to guaranteeing aspects of liberty and
ensuring sufficient freedom to allow for the meaningful pursuit of happiness; though these
freedoms were initially only protected against federal government encroachment. The Fifth
Amendment Due Process Clause conditionally protects liberty directly, but substitutes property
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important issues: first, its provisions neglected to protect liberty from
encroachments by the states, and second, the Bill of Rights essentially
ignored equality, presumably because of the Constitution’s acceptance
of slavery.
The advent of a candid rededication to the Declaration’s promises,
and the addition of express rights clauses to the Constitution binding the
states, had to wait for the Civil War. President Lincoln set a noble tone
at Gettysburg with his eloquent address of just 272 words.300 His
clarion call, appealing to “our better angels,” looked to our nation’s
past, present and future. He reflected backwards on the Declaration to
declare that our nation was “conceived in liberty, and dedicated to the
proposition that ‘all men are created equal.’” He joined his countrymen
in their present grief and led a weary nation at a decisive moment,
offering finally the prospect of victory while mourning the war dead,
eulogizing those who gave their lives (“the last full measure of
devotion”) for the founding principles. And he called to the future for a
“new birth of freedom” to rededicate the nation to the Declaration’s
exalted aspirational ideals.
The next two years saw the conclusion of the bloody war,
President Lincoln’s reelection, his sublime second inaugural address
promising to “bind up the nation’s [grievous] wounds . . . with malice
toward none;” and his subsequent assassination. In 1868, the
Fourteenth Amendment was ratified, giving the Constitution its first full
and explicit recognition of the Declaration’s promise of equality in the
form of the Equal Protection Clause. Five years later, Justice Miller,
speaking for the majority in Slaughter-House Cases, made the
following comment about equal protection: “We doubt very much
whether any action of a State not directed by way of discrimination
against the negroes as a class, or on account of their race, will ever be
held to come within the purview of this provision.”301 The last sixty
years have exposed Justice Miller’s prediction as among the least
prescient of all judicial prognostications.
The explosion of equal protection litigation is undoubtedly one of
the hallmarks of the modern Supreme Court. Two quite different main
drivers of the increased attractiveness of equal protection analysis for
the solution of constitutional disputes were well described by Justice
Jackson in his concurring opinion in Railway Express Agency v. New
for the pursuit of happiness in the Declaration’s triad of “Life, Liberty, and the Pursuit of
Happiness.”
300 See generally WILLS, LINCOLN AT GETTYSBURG, supra note 169.
301 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873). Justice Bradley, in his dissent,
took a markedly different approach which has been vindicated in the fullness of time: “It is futile
to argue that none but persons of the African race are intended to be benefited by this amendment.
They may have been the primary cause of the amendment, but its language is general, embracing
all citizens, and I think it was purposely so expressed.” Id. at 123.
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York.302 The first is the bedrock principle of justice that politically
responsive branches of government are far less likely to impose
iniquity, intentionally or otherwise, on one group of people if there is a
legally binding requirement that the rigors of the law also must be borne
by the majority and the lawmakers themselves.303 The second is the
contention that a judicial ruling striking down government action on
equal protection is preferable to other grounds of decision (e.g. due
process, privileges or immunities, or other non-comparative principles
of justice) because it leaves freedom for political response, and thereby
softens inter-branch and public conflict with the courts.304 The idea is
that if the majority feels strongly enough about a judicially blocked
policy, it can overcome an equal protection decision by reenacting the
policy and applying it to everyone, but will more often have to change
the Court, or the Court’s mind, or amend the Constitution, to overcome
a substantive due process (or privileges or immunities) decision.
Much of the Court’s equal protection work concerns identifying
protected groups, defining suspect classes and analyzing the immutable
characteristics of personal status that trigger heightened judicial
scrutiny.305 In addition to the essential paradigm of racial equality, the
Equal Protection Clause has been construed to provide an important
counter-majoritarian check on various classifications that have a
differential impact based, inter alia, on national origin, religion, sex,
alienage, biological parentage and illegitimacy, and—for some purposes
and to a lesser extent—disability, socio-economic status, sexual
orientation and age. This has given rise to a dizzying multiplicity of
levels of equal protection scrutiny, which may be counted in different
ways, but practically amount to at least six variations: low-level rational
relationship;306 rational relationship with bite;307 mid-level;308
302
303
336 U.S. 106 (1949).
See id. at 112-13 (Jackson, J., concurring):
This equality is not merely abstract justice. The framers of the Constitution knew . . .
that there is no more effective practical guaranty against arbitrary and unreasonable
government than to require that the principles of law which officials would impose
upon a minority must be imposed generally. . . . Courts can take no better measure to
assure that laws will be just than to require that laws be equal in operation.
Id.
304
Invalidation . . . on due process grounds leaves ungoverned and ungovernable conduct
which many people find objectionable. Invocation of the equal protection clause, on
the other hand, does not disable any governmental body from dealing with the subject
at hand. It merely means that the prohibition or regulation must have a broader impact.
Id. at 112.
305 The intellectual power behind these ideas may be traced back to Justice Stone’s famous
footnote in United States v. Carolene Prods. Co., 304 U.S. 144, 151-54, n.4 (1938), suggesting
that extra judicial vigilance is warranted to guard against the risk that, based upon prejudice, the
political branches may deal unfairly with “discrete and insular minorities.”
306 See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483 (1955) (applying the very lowest
and most forgiving level of scrutiny to general social, welfare, economic policies).
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“exceedingly persuasive” mid-level;309 strict but not fatal;310 and classic
strict scrutiny.311 This is enormously important in its own right, and it
serves also as background context for two other aspects of equality
analysis that are more closely connected with our discussion of
substantive fundamental rights. The first of these substantive equality
strands is the Supreme Court’s recognition of fundamental (and quasifundamental) rights under the Equal Protection Clause that serve as
alternative triggers for different levels of heightened equal protection
scrutiny. The second is a more general consideration of the validity of
equality as another central principle, joining liberty, due process,
privileges or immunities and the pursuit of happiness as meta
components for a composite substantive rights model.
As to the first point, the Supreme Court has increasingly enforced a
number of rights that are not clearly textual, but that it considers
fundamental or quasi-fundamental only for equal protection purposes.
Among these are the right to vote,312 meaningful access to courts and
307 See, e.g., Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) (overturning the
denial by a Texas city of a permit for a group home for mentally retarded people, ostensibly on
rational relationship scrutiny, but requiring actual reasons and a showing of a real, not just
fanciful, contribution to legitimate ends).
308 See, e.g., Craig v. Boren, 429 U.S. 190 (1976) (requiring an important governmental
interest and a substantial relationship between the classification and that interest in sex
discrimination cases).
309 See, e.g., United States v. Virginia, 518 U.S. 515 (1996) (using a toughened version of
mid-level scrutiny to invalidate the Virginia Military Institute’s male-only admissions policy, and
requiring an “exceedingly persuasive justification,” id. at 531, for a disadvantaging gender
classification that excludes women).
310 See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003) (Justice O’Connor’s opinion for the
Court uses a slightly relaxed strict, but not fatal, level of scrutiny to approve some forms of racebased affirmative action for higher education admissions).
311 Invidious race based discrimination is impermissible and per se prohibited. See, e.g.,
Loving v. Virginia, 388 U.S. 1, 10 (1967) (holding unconstitutional Virginia’s anti-miscegenation
statute, and stating that: “[t]he clear and central purpose of the Fourteenth Amendment was to
eliminate all official state sources of invidious racial discrimination in the States”). Other racebased classifications disadvantaging members of a minority race are presumptively and almost
invariably unconstitutitional. See, e.g., Palmore v. Sidoti, 466 U.S. 429 (1984) (reversing a state
court order transferring child custody, ostensibly to protect the daughter from the social stigma of
living in a mixed race household, from the mother to the father, both Caucasian, after the mother
married an African American). Chief Justice Burger, speaking for a unanimous Court, said:
“Classifying persons according to their race is more likely to reflect racial prejudice than
legitimate public concerns . . . . Such classifications are subject to the most exacting scrutiny; to
pass constitutional muster, they must be justified by a compelling governmental interest and must
be ‘necessary . . . to the accomplishment’ of [that] purpose.” Id. at 432-23. Chief Justice Burger
gave an accurate statement of the strict, and almost invariably fatal, scrutiny that applies to
disadvantaging racial classifications.
312 See, e.g., Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966) (holding that the right
to vote, once granted to the electorate on an issue, is fundamental as a matter of equality and
cannot be burdened by a $1.50 poll tax, without deciding whether there is an independent
constitutional right to vote); Baker v. Carr, 369 U.S. 186 (1962) (holding a challenge to malapportionment in state legislative voting districts to be justiciable under the Equal Protection
Clause, though the Court had previously held a similar claim to be a non-justiciable political
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full participation in judicial proceedings where important liberty
interests are at stake,313 the right to travel,314 the right to marry,315 the
right to resist involuntary sterilization316 and the right to a basic level of
education.317 A further range of cases rejected certain methods for
distributing State benefits,318 disadvantaging alterations of the political
landscape319 or targeting a single group for disfavor or animus.320 These
question under the Guarantee Clause of Article IV); Reynolds v. Sims, 377 U.S. 533 (1964)
(adopting the one person, one vote requirement for successful Baker challenges); Bush v. Gore,
531 U.S. 98 (2000) (Although there is much controversy about the wisdom of the Court’s
decision to get involved at all in the disputed Presidential election between candidates Bush and
Gore, and about the remedy fashioned by the five member majority, it is notable that seven
justices agreed that the voting citizens in a state have an equal protection fundamental right to
have their votes counted with an evenhanded method throughout the state).
313 See, e.g., Griffin v. Illinois, 351 U.S. 12 (1956); Douglas v. California, 372 U.S. 353
(1963); Halbert v. Michigan, 545 U.S. 605 (2005) (all to the effect that an indigent criminal
defendant must be provided with the necessary tools—for example, a free transcript and
counsel—for a meaningful appeal where the State provides an appeal of right for non-indigent
defendants from a conviction or nolo contendere plea); see also Boddie v. Connecticut, 401 U.S.
371 (1971); M.L.B. v. S.L.J., 519 U.S. 102 (1996) (holding that indigents cannot be blocked from
divorce court, or appeal of an order terminating parental rights, by non-waivable court costs or
filing fees in civil cases involving these important individual liberty interests); Bounds v. Smith,
430 U.S. 817 (1977); Lewis v. Casey, 518 U.S. 343 (1996) (holding that prison inmates are
entitled to reasonable tools, e.g. basic library materials, for post-conviction and habeas corpus
petitions raising fundamental constitutional rights claims).
314 See, e.g., Shapiro v. Thompson, 394 U.S. 618 (1969). Shapiro, and other similar equal
protection cases striking down unduly burdensome durational residency requirements limiting
access for new state residents to important state benefits, may now have been largely superseded
by the Court’s more recent Privileges or Immunities analysis in Saenz v. Roe, 526 U.S. 489
(1999). See supra notes 73-80 for additional discussion of the varied sources for the
constitutional right to travel.
315 See, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978) (striking down a Wisconsin law
denying a marriage license to anyone with an unpaid child support obligation); Loving, 388 U.S.
1 (holding unconstitutional Virginia’s anti-miscegenation statute).
316 Skinner v. Oklahoma, 316 U.S. 535 (1942).
317 Compare Plyler v. Doe, 457 U.S. 202 (1982) (using heightened scrutiny to strike a Texas
school district policy requiring undocumented children of illegal aliens to pay full out-of-district
tuition, which effectively excluded them from public education) with San Antonio Indep. Sch.
Dist. v. Rodriguez, 411 U.S. 1 (1973) (upholding a Texas law which funded schools based on
local property taxation, resulting in sharp disparities between rich and poor districts, but not
excluding any of the plaintiffs from public education). In both cases, the Court refused to find
education to be an independent fundamental right.
318 See, e.g., Zobel v. Williams, 457 U.S. 55 (1982) (striking down an Alaska law which
distributed part of the State’s oil revenues to Alaska citizens differentially based on the length of
their residence. The Court condemned as unconstitutional the scheme’s creation of twenty
subclasses of citizenship); see also the discussion of Saenz v. Roe, supra notes 79, 80, 277, 296
and accompanying text. While Saenz relies on the Privileges or Immunities and Citizenship
Clauses, rather than the Equal Protection Clause, the Court’s opinion echoes Zobel’s concerns
about the fundamental nature of equal citizenship. Saenz, 526 U.S. at 506-07 (The Citizenship
Clause of the Fourteenth Amendment “does not provide for, and does not allow for, ‘degrees of
citizenship based on length of residence.’ It is equally clear that the Clause does not tolerate a
hierarchy of 45 subclasses of similarly situated citizens based on the location of their prior
residence.”).
319 See, e.g., Hunter v. Erickson, 393 U.S. 385 (1969) (holding unconstitutional a city charter
amendment, adopted by Akron’s voters in response to the enactment by their city council of an
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last three types of decisions can be best understood as recognizing an
emerging substantive fundamental right of equality of citizenship. Once
the Court has ranked a claimed right as fundamental for equal protection
purposes, differential impairment of that right by the government for
separate groups of people triggers heightened scrutiny that most often
results in a finding of unconstitutionality. This result obtains even in
cases where the affected groups lack sufficient indicia of suspect class,
and where the Court would be unwilling to recognize the right as
fundamental outside the confines of an equal protection analysis.
Since there are other sources for fundamental rights besides equal
protection, and since governmental action impairing these fundamental
rights will be subject to strict scrutiny analysis, it is fair to ask whether
one should bother to consider fundamental rights under notions of
equality at all. There are several factors that argue for an affirmative
answer to this important question. First, as noted earlier, judicial
restraint may result in the Court preferring to strike a government action
under the Equal Protection Clause, rather than having to make a more
distasteful and inflexible determination under other constitutional
provisions that the government’s interest is not, and can never be,
sufficient. And, as discussed previously in Parts II.B and III of this
Article, at least one of the other popular candidates, substantive due
process, has notable weaknesses as a significant source of substantive
fundamental rights.
Second, even in situations where the government has a powerful
interest that might justify the impairment of an individual’s fundamental
right and the government is careful to intrude on the right as narrowly as
possible, our notion of equality may still impel us to prohibit
governmental action if the same rights of too many other similarly
situated individuals are left unimpaired. This is an under-inclusiveness
problem that is best handled by equality.
Suppose, for example, the government had a pool of offenders who
all individually “deserved” the death penalty, consistent with the
Court’s cruel and unusual punishment decisions, but the government
anti-discrimination fair housing ordinance, requiring that any such ordinance adopted by council
also had to be approved by the voters. The Court concluded that the charter amendment
improperly disadvantaged groups advocating fair housing by making it structurally more difficult
for them to obtain legislation compared with other groups seeking other types of legislation);
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) (striking down on similar grounds a
Washington State initiative requiring local school boards to assign students to their nearest
school, thereby terminating the Seattle school district’s busing program, which had been
voluntarily adopted to achieve greater racial balance in Seattle’s public schools, while leaving
other issues of school policy at the local level).
320 See, e.g., Romer v. Evans, 517 U.S. 620, 632 (1996) (striking down Amendment 2 of the
Colorado Constitution, which prohibited any government action to prevent discrimination based
on sexual orientation, and noting that the Amendment “seems inexplicable by anything but
animus toward the [homosexual] class it affects”).
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chose to execute only thirty percent of them selected consciously by
random lots. This hypothetical, and other real cases already mentioned,
including those involving voting, access to courts for appeal, access to
education, certain distributions by the state of material benefits, some
unfair alterations of the political landscape and demonstrated animus
toward a particular non-suspect group of citizens, indicate that there are
rights which are fundamental for equal protection purposes even though
these rights would not be counted as fundamental based on other
sources or for other purposes. Put another way, one may conclude that
equality is a more appropriate (and sometimes the only) reservoir for
some fundamental rights compared with other constitutional sources.
In another class of cases, equality is tailor-made to serve on its own
as one of the meta principles in the composite theoretical substantive
rights model proposed in Part V of this Article, or importantly as one of
several meta sources all pointing to the same concrete fundamental right
shared among them. John Rawls, in his seminal 1971 book, A Theory of
Justice,321 argued that equality is the bedrock principle of justice that a
hypothetical rational and just liberal contractarian society would insist
upon at its foundational origin. His idea contained a weak form of
social and economic equality with no guarantee of equal wealth or
utility outcome for any individual, except for the minimal requirement
that there must be some general societal benefit from a program that
enabled the well-off to get richer, “in particular. . . the least advantaged
members of society”322 must be better off than they were before. More
to the point of our discussion exploring the viability of equality as a
meta principle for a proposed composite model, Rawlsian Justice also
posits a stronger form of equality “in the assignment of basic rights and
duties[.]”323 Rawls’ argument as a matter of moral philosophy is that
this latter strong form of equality would logically give rise to the sort of
procedural and substantive liberty and autonomy rights that are the
concern of the various models constructed in this Article.
Rawls does not have an inherent patent on a correct view of “moral
philosophy,” or rights, but his work is impressive and gains credence
from his acknowledgment that the derivation of rights is not infallible or
purely deductive. Instead, he wisely urged an interactive feedback
model seeking equilibrium among the abstract thought experiments of
his moral philosophy,324 experience with concrete cases and intuitive
and cultural/historical notions of justice. This kind of dynamic
321
322
323
324
JOHN RAWLS, A THEORY OF JUSTICE (Oxford Univ. Press rev. ed. 1999) (1971).
Id. at 13.
Id.
Thought (or gedanken) experiments combined with observational data have played a
powerful role in scientific understanding of the physical universe, including Einstein’s famous
formula, E=mc2.
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feedback model, with its reassuring safeguard of relying on many
different legitimate sources, has much to offer any coherent composite
model of judicially discoverable and enforceable rights.
Of course one may ask whether moral philosophy is a legitimate
concern of constitutional interpretation at all. Like the Declaration of
Independence, the Articles of Confederation and perhaps to a lesser
extent the Preamble to the Constitution itself, moral philosophy cannot
claim the direct force of law under the Supremacy Clause.325 But there
is an unmistakable confluence of the Rawlsian notion pairing equality
and liberty rights, with a very similar coda in our Declaration’s
assertion that the essence of equality as a birthright is joined unalienably
with “life, liberty and the pursuit of happiness,”326 and with the
Preamble’s promise “to secure the blessings of liberty to ourselves and
our posterity.”
At a minimum, the moral philosophy of the Enlightenment exerted
strong influence on the thinking of a number of the key founders of our
constitutional framework: Jefferson, Hamilton, Madison and Mason
among them. Understanding the philosophical training and the cast of
mind of these men breathes life and context into our constitutional
documents. Furthermore, the logic of the Meta Up and Down and Sign
Post Interpretation Models,327 adds considerably to the claim that preConstitutional and more recent proto-Constitutional documents,
together with classical and current sound moral philosophical reasoning,
are relevant for more than just the originalist light they shed. To borrow
a felicitous phrase from Harry Jones, they serve as a brooding
omnipresence of constitutional law.328 To take two examples, the
Declaration of Independence and the moral philosophical discourse
about liberty and justice are not independent sources of judicially
enforceable constitutional rights by themselves, but they legitimately
help to give important shape and dimension to the constitutional textual
norms (meta principles) of Equality, Liberty, Citizenship and Privileges
or Immunities, which in turn lead to more specific rights applicable to
concrete cases.329
This discussion helps to put into proper perspective the Supreme
Court’s too limited periodic intonation: “The Equal Protection
325
326
U.S. CONST. art. VI, § 2.
THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). The framing generation was
characteristically wise in offering everyone the freedom to “pursue happiness” without falsely
promising to deliver its attainment.
327 See supra Diagrams 5 and 6.
328 Harry W. Jones, The Brooding Omnipresence of Constitutional Law, 4 VT. L. REV. 1
(1979).
329 In this sense, the meta principles are all examples of constitutional geometric solids, to be
cut by the Court with interpretive planes to give concrete rights with form and shape. See supra
Diagram 7 and text accompanying note 148 for elaboration of the analogy of the Geometrical
Solids and Planes Model.
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Clause . . . creates no substantive rights.”330 Kenneth Karst has been
especially influential among thinkers reminding us that equality has in
fact always had substantive content, and that it matters.331 Among the
fundamental rights recognized thus far by the Supreme Court for equal
protection purposes, the most intriguing is the emerging right of equal
citizenship.332 For Professor Karst, this means that the individual has a
“right to be treated by . . . society as a respected, responsible, and
participating member.”333 Or as Edwin Baker put it roughly in the
converse, the right not to be unjustly “picked on” or “denigrate[d.]”334
These and other arguments for substantive components of equality,
together with the fundamental notion of national citizenship and a
principle akin to Rawls’ concept of an equality of right, have
increasingly been reflected in Supreme Court justices’ thinking about
substantive rights cases. For example, prior to her nomination to the
Court, Justice Ruth Bader Ginsburg suggested greater attention to
equality and its interrelationship with autonomy in considering
constitutional abortion questions,335 and she pursued this view further
during her confirmation hearings.336 Although it deals with a more
classic form of sex discrimination, her opinion for the Court striking
down Virginia Military Institute’s male-only admissions policy
emphasized that equal protection grants women “full citizenship
stature[.]”337 Justice Stevens described the right in the abortion cases as
“a correct understanding of both the concept of liberty and . . . basic
equality[.]”338 He also pursued the relationship between freedom,
330
331
Vacco v. Quill, 521 U.S. 793, 798 (1997).
See, e.g., Kenneth L. Karst, The Supreme Court 1976 Term Foreword: Equal Citizenship
Under the Fourteenth Amendment, 91 HARV. L. REV. 1 (1977) [hereinafter Equal Citizenship];
Kenneth L. Karst, Why Equality Matters, 17 GA. L. REV. 245 (1983) (responding rather
effectively to Professor Westen’s articles on the “emptiness” of equality and demonstrating the
prominence and importance of equality as an important operative ideal in American legal
culture).
332 See supra notes 318-320 and accompanying text; see also Karst, Equal Citizenship, supra
note 331, at 4 (“Equality, as an abstraction, may be value-neutral, but the fourteenth amendment
is not. The substantive core of the amendment, and of the equal protection clause in particular, is
a principle of equal citizenship”); KENNETH L. KARST, BELONGING TO AMERICA: EQUAL
CITIZENSHIP AND THE CONSTITUTION (1989). For an excellent earlier argument that more
reliance should be placed on the citizenship clause, and on the concept of the rights of citizenship,
see CHARLES L. BLACK JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW
(Louisiana State University Press 1969).
333 Karst, Equal Citizenship, supra note 331, at 4.
334 C. Edwin Baker, Outcome Equality or Equality of Respect: The Substantive Content of
Equal Protection, 131 U. PA. L. REV. 933, 965 (1983).
335 See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v.
Wade, 63 N.C. L. REV. 375 (1985).
336 Nomination of Ruth Bader Ginsburg, to be Associate Justice of the Supreme Court of the
United States: Hearings Before the S. Comm. On the Judiciary, 103d Cong., S. Hrg. 103, 205-208
(1993).
337 United States v. Virginia, 518 U.S. 515, 532 (1996).
338 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 912 (1992) (Stevens, J., concurring
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liberty and equal human dignity in stating his concurring views in the
assisted suicide decision, Washington v. Glucksberg: “This freedom
embraces . . . her interest in dignity, and in determining the character of
the memories that will survive long after her death.”339
The Court’s earlier decisions in Strauder v. West Virginia340 and
Loving v. Virginia also support an appropriately strong, mutually
reinforcing interrelationship among the constitutional protections of
equality, citizenship and substantive fundamental rights. The Supreme
Court’s resolution of the issues in these cases relied on equality in its
comparative anti-discrimination form in combination with an
independent substantive fundamental right. In Strauder, the Court
described and relied on the citizen’s substantive fundamental right (and
duty) to jury service, at least as much as the claims of the defendant and
prospective jurors not to have African-Americans systematically
excluded from juries.341 Loving relied on a fundamental individual right
of choice to marry on an equal footing with others, as well as invidious
race discrimination, as bases for holding Virginia’s anti-miscegenation
statute unconstitutional. Chief Justice Warren wrote for the Court that
the right of freedom to marry is “essential to the orderly pursuit of
happiness by free men.”342 This resonance with the Declaration finds
many earlier echoes in American jurisprudence, including Justice
Field’s observation in Slaughter-House Cases that a system will only be
counted as a free government by Americans where “the inalienable right
of every citizen to pursue his happiness is unrestrained, except by just,
equal, and impartial laws.”343 There can be little doubt that equality of
in part and dissenting in part).
339 Washington v. Glucksberg, 521 U.S. 702, 743 (1997) (Stevens, J., concurring in the
judgments).
340 100 U.S. 303 (1880) (reversing the conviction of a black defendant who was tried before an
all-white jury, selected from a pool of veniremen from which all blacks had been systematically
excluded, and holding that citizens have a fundamental right to jury service, and that both
prospective jurors and the defendant have equal protection rights not to have blacks excluded
from this civic duty).
341 Id. Plessy v. Ferguson, 163 U.S. 537 (1896) (upholding the racial segregation of rail cars
required by a Louisiana statute), overruled by Brown v. Bd. of Educ. Of Topeka, 347 U.S. 483
(1954), demonstrates that it was not enough in the late nineteenth century to show discrimination
against African-Americans to prevail under the Equal Protection Clause, and that the presence of
a substantive fundamental equality right to jury service was necessary to the Strauder holding.
342 Loving v. Virginia, 388 U.S. 1, 12 (1967) (emphasis added). The Court has also
recognized a fundamental right to marry beyond the context of equal protection. See Turner v.
Safley, 482 U.S. 78 (1987) (affording a substantive fundamental right to marry to an incarcerated
prisoner, though acknowledging that some restrictions would be permissible because of the
incarceration).
343 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 111 (1872) (Field, J., dissenting). Justice
Field cited and quoted, in a footnote to his opinion, Blackstone as authority that this proposition
was firmly established in English law and philosophy by the time of our founding as a nation, as
“the great end of all human society and government[.]” Id. at 111 n.40 (quoting 1 SHARSWOOD’S
BLACKSTONE 127 n.8); see also id. at 115.
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right, the pursuit of happiness in its liberal contractarian sense and a
strong presumption of liberty and personal autonomy, were among the
central animating purposes of our noble Constitutional experiment.
In discussing the substantive fundamental rights strand of equal
protection analysis in Plyler v. Doe, Justice Brennan’s majority opinion
stated: “In determining whether a class-based denial of a particular right
is deserving of strict scrutiny under the Equal Protection Clause, we
look to the Constitution to see if the right infringed has its source,
explicitly or implicitly, therein.”344 The same is true, of course, for
other meta sources of substantive fundamental rights, including the
concepts of Liberty, Pursuit of Happiness, Citizenship and Privileges or
Immunities.
It is beyond the scope of this Article to work out in detail the
precise interpretive contour of Liberty, Equality, or the Pursuit of
Happiness, or their exact interconnections. That important work is for
other scholars, advocates, the courts, and for another day. Instead, the
immediate goal has been more limited, to establish the bona fide nature
of these three central precepts of American constitutionalism as
legitimate meta principles with vital and mutually reinforcing
interdependence. With that task complete, it is appropriate to include
them on a robust list of essential meta principles, and turn our attention
to the articulation of a comprehensive, enhanced theoretical model for
the Court to use in seeking, finding and enforcing rights that are not
clearly textual in origin.
V. TOWARD A COMPREHENSIVE MODEL: MUCH ADO ABOUT
SOMETHING
Consider the following situation. The federal or state government
takes an action that adversely affects an individual. Assume that
political, informal, administrative and legal remedies (short of federal
constitutional arguments) are unavailing and that the individual chooses
to press forward with a claim to the courts that the government action
violates his federal constitutional individual rights. Assume further that
the claimed right is substantive in character,345 has not previously been
recognized by the courts and is not clearly textually provided for in the
federal constitution, as amended. What ought the court do?346
344
345
Plyler v. Doe, 457 U.S.202, 218 n.15 (1982) (emphasis added).
The same sort of analytical model would apply for claims of previously unrecognized
procedural rights, but in general the realm of procedural rights has been less controversial and
more fully worked out by the courts.
346 Assume the court has jurisdiction, the appropriate parties are before the court, and there are
no other legitimate bases of non-justiciability or for avoidance of the merits of the individual’s
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The first responsibility for the court is, as always, to adopt and
evince the proper “judicial” cast of mind. Many others have thought
hard about what this means in general, and it is not my purpose or
pretense to recanvass this field or to add much. I do mean to include in
judicial cast of mind: careful attention to the facts and circumstances of
the claim; a sensitive contextual “situation sense;” conscientious
application of the best craft available; and humble institutional self
awareness, yet coupled with an open-minded and responsive approach
to the task of determining whether the putative substantive fundamental
claim of right is legitimate, and if it is, how it should be enforced. The
costs and risks of an erroneous decision in each direction should be
fairly assessed; in my judgment this will often result in the court
reducing or eliminating the high degree of deference usually afforded
government action in other types of challenges. It will be appropriate in
the right circumstances for the court to start with a presumption of
liberty or pursuit of happiness,347 thereby leading to a rebuttable
presumption that the government’s particular action adverse to the
individual in the instant case is unconstitutional.
Next, and while maintaining this judicial cast of mind throughout,
the court should search through the concrete textual rights provisions of
the Constitution and determine whether the putative claimed right is
protected by one of these specific rights, or by its comfortably implied
or penumbral rights.348 That is, the court should conscientiously apply
the Basic Core/Penumbra Model349 to each of the relevant specific
textual rights clauses. Similarly, the court should apply the Sum of the
claim.
347 Others have called for a somewhat similar presumption on a variety of grounds. See, e.g.,
BLACK, supra note 169; RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE
PRESUMPTION OF LIBERTY (Princeton U. Press 2004); Rebecca L. Brown, Accountability,
Liberty, and the Constitution, 98 COLUM. L. REV. 531 (1998).
348 To avoid unduly complicating matters, I am ignoring here the difference between claimed
rights against federal and state government action, and the federalism implications attendant
thereto. Similarly, I am also ignoring the difference between the conduct of a federal court and a
state court in carrying out these functions. The first task and main thrust of this article is to
propose a theoretical model for testing proposed rights to see if they are protected by the federal
constitution. The questions of whether they are better found by state or federal courts in some
instances, or whether they are equally enforceable against state and federal government action,
are important issues of federalism that come second, and are largely deferred to future work. In
situations where state courts protect an individual right as a matter of state constitutional or
statutory law, rather than federal law, no federal question is presented based on the doctrine of
independent and adequate state grounds. This salutary aspect of federalism relieves both federal
and state courts of the duty to use these models to discover rights in the federal constitution at all
in those cases. See Stephen Kanter, Our Democracy’s Balancing Act: American Federalism
Reexamined, 8 OR. HUMAN. 2, 8 (1995) (“If the objective of federalism is to be achieved, states
must be willing to commit themselves at least on occasion to experiment with . . . increased
sensitivity to human rights compared with the minimum requirements of the United States
Constitution and applicable federal law.”).
349 See supra Diagram 1.
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Parts Model,350 to see if the claimed right (although previously
unrecognized) is actually just a composite of rights or parts of rights
already protected by several express core rights and their penumbras.
These steps are analytically relatively linear, and not too far from the
Counting Vee Model of Justice Stewart. But, of course, the courts must
approach these tasks with an acute awareness of the requirement for a
generous, careful and nuanced consideration of the complexity of
constitutional interpretation, evident in the Supreme Court’s
jurisprudence for any one of the clauses of the Bill of Rights. Among
many other valid sources that will need to be considered are AngloAmerican experiences, original history from the framing periods, direct
and inferential, the specific types of examples against which the framers
crafted each textual rights protection, and the functional purposes
underlying each provision. As suggested earlier, the courts should use a
mindful, purposeful and liberal style, broad enough to account for
changing facts and circumstances and to fully animate the framers’
intended transcendental values and purposes. If this process is
unavailing or leaves the court in doubt about whether to recognize the
individual’s claimed right, the court should move along, but not discard
the work already done.351
The next critical step for the court is to acknowledge that there are
important structural, textual and constitutional theoretical triggers
justifying, indeed demanding, that the court go farther in pursuit of
rights deserving of judicial protection. Prominent among these triggers
authorizing recognition of additional substantive fundamental rights are
the following sources: (1) the Ninth Amendment as properly construed
in accord with the Sign Post Interpretation Model;352 (2) a theory of
implied rights at least as powerful as Chief Justice Marshall’s
compelling analogous argument in McCulloch for implied federal
powers; (3) the consensus moral philosophical position on rights of the
founders as expressed in the Declaration of Independence and the
Preamble to the Constitution; (4) the Supremacy Clause and the explicit
responsibility in Article VI for state judges to prefer federal
constitutional rights to anything in their own state constitution or laws
that is incompatible;353 and (5) the reworking and strengthening of
350
351
See supra Diagram 2.
The application of the Basic Core/Penumbra and Sum of the Parts Models to the specific
textual rights provisions of the Constitution in the context of the unique facts and circumstances
of the case at hand, compared with the nature of the claimed right, generates the essential
constitutional substrate of specific rights for the more controversial work of the court ahead. To
return momentarily to the “fruit” metaphor from Part I.B supra, the substrate should include
specific listed examples of fruits and analogous unlisted hybrid fruits (e.g., a tangelo) similar to
listed examples.
352 See supra Diagram 6.
353 U.S. CONST. art. VI. This provision clearly suggests a strong counter-majoritarian federal
constitutional rights enforcing role for the state judges.
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federal constitutional rights protections by the Civil War, and the
following subsequent Amendments to the Constitution expanding rights
and the class of persons to whom those rights apply: Amendments XIII,
XIV, XV, XVII, XIX, XXIII, XXIV, and XXVI. The question is not
whether to go beyond the confines of the Counting Vee Model and look
farther, but where to look and how.
The next phase in the court’s work is to utilize the relatively
concrete constitutional substrate already developed, account for
additional legitimate sources and methods of interpretation, and
inductively move up to a group of relevant meta principles (based on
the general transcendental values explicit and implicit in the substrate).
This inquiry essentially reflects and conforms to the third-order models
in Part I of this Article,354 which in their most workable form are best
represented by the Meta Up and Down Model.355 Step 1 of this Meta
Up and Down Model, already explicated in Part I.B, illustrates how the
court should proceed. As foreshadowed there, before proceeding to
Step 2, the model now needs to be enhanced to accommodate the
additional sources and methods just alluded to, and most importantly to
take account of the meta principles expressly included in the
Constitution’s text and its amendments. These include inter alia
Citizenship, Equal Protection, Privileges and Immunities and Liberty in
both its general senses, and in its limited penumbral Substantive Due
Process sense, as well as other received meta principles that are not
technically part of the Constitution such as the Pursuit of Happiness and
the extra-Constitutional notions of Equality of Right, and Liberty.
Simply listing these induced and directly given meta principles
does not begin to outline a fully adequate approach for this analysis.
Each principle must be carefully worked through so that the court is
fully cognizant of a well-formed, relevant and legitimate notion of the
sources and contours for that principle. Still, the court must be careful
not to allow itself to be stymied by the lack of formal or mechanistic
completeness or provability of any one notion of a meta principle.
Once the concrete substrate of rights and the meta principles (both
given and induced)356 are in place, and the particular factual
circumstances of the case and the precise nature of the claimed
substantive right are fully understood, the court will be prepared for
Step 2 of the Up and Down Model. This step requires the court to
perform the delicate task of applying the substrate and the meta
principles to the facts and circumstances of the case in order to
determine whether the concrete putative substantive fundamental right
354
355
356
See supra Diagrams 3, 4 and 5.
See supra Diagram 5.
The given meta principles and their legitimate notions are valuable sources in addition to,
and together with, the substrate of concrete rights in inducing other meta principles.
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exists in a judicially enforceable form, or whether it does not. The
ultimate decision most often will not be a deterministic process and the
answer may evince reasonable doubt in the especially hard, contentious
cases that sometimes occupy the Supreme Court. To gain legitimacy,
and conserve valuable judicial capital, and to reduce the risk of large,
damaging errors in either direction, the court will be well advised to
apply the enhanced Meta Up and Down Model repeatedly, and certainly
more than once, from several different perspectives. This will require a
strong dynamic feedback mechanism, with the court pausing to check
often among text, theoretical constructs, historical experience and
concrete reality. In effect, the court will be seeking something akin to
constitutional equilibrium, coherence and stability for any relatively
freshly minted substantive fundamental right.357
These processes will lead, in any close or hard case, to a number of
directional arrows pointing in somewhat different directions. When all
or most of the arrows are pointing directly toward recognition and
judicial enforcement of the claimed right, the court will be on sound
footing in recognizing the right. When many or most of the arrows, or
sources, are pointing away from the right, or in indiscernible chaotic
directions, the court should be most leery in giving judicial voice to the
claim of right. Thinking about this process lends itself to one final
useful pictorial metaphor. This metaphor results in a diagram where the
substrate of concrete textual rights with their penumbras, and the array
of relevant meta principles, form the bottom and top of a broken donut
as a torus-shaped force field. The proposed right should be recognized
and enforced by the court if enough of the forces, and their vectors, are
pointing inward holding the right stable, but the proposed claim of right
should be rejected if the force fields are too weak, or directionally
incompatible, thereby creating a risk of flying apart and ejecting the
failed claim. This composite theoretical model, which it has been the
357 With respect to coherence, see Ronald Dworkin, Unenumerated Rights: Whether and How
Roe Should be Overruled, 59 U. CHI. L. REV. 381, 390-91 (1992):
Legal interpretation is inherently holistic, even when the apparent target of
interpretation is a single sentence or even a single clause rather than a document. Any
interpreter must accept interpretive constraints—assumptions about what makes one
interpretation better than another—and any plausible set of constraints includes a
requirement of coherence.
Id.
With respect to stability, consider Stephen Kanter, Dealing with Death, supra note 223, at 9 n.34:
The term ‘stability’ is used here as a measure of several concepts: (1) the likelihood that the
court will apply the logical consequences of its articulated decisional principles to future
cases (that is, the likelihood it will apply them as ‘neutral principles,’ see Wechsler, Toward
Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959)); (2) the likelihood
that these principles would survive one or more changes in the present makeup of the court;
and (3) the likelihood that these principles will survive over time (that is, the unlikelihood
that they will be affected by changing facts and circumstances).
Id.
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primary goal of the Article to construct, will be referred to as an
Enhanced Dynamic Feedback Meta Up and Down Model.358
358
See Diagram 10.
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CONCLUSION
The theoretical dynamic feedback model developed in this Article
provides a plausible base structure for a legitimate judicial effort to
derive and enforce individual rights. When a right is being recognized
for the first time under the model, the court has additional difficult
challenges after affirming that the right in fact “exists.” These include
refining the content and contour of the right. Particularly at this stage of
the process, common law method is ideally suited for the task. Once the
right is justified and described with sufficient specificity, the court must
still apply the concrete right to the facts and circumstances of the instant
case. In doing so, the court should consider reasonable hypothetical
situations that are likely to arise. Subsequently, the court will be called
upon to apply the right to additional real cases. The court must consider
the hierarchical strength of the right: is the right absolute, is it
fundamental requiring strict judicial scrutiny of competing
governmental action, or is it entitled to some form of lesser protection?
Finally, and depending on the strength of the right, the court must give
due consideration to any governmental justifications for overcoming or
limiting the right. These tasks, though difficult, are primarily matters of
application. They are normal grist for the judicial mill. Judges are well
equipped institutionally and by training to handle them with experience
and wisdom.
There is good reason to hope that the proposed model and its
discussion will make significant contributions toward a generally valid
theory of constitutionally enforceable rights. It is now important that
this and any other plausible models be debated openly and fiercely, so
that they can be refined and improved to the point that one model, or a
cluster of similar models, gains at least rough consensual approval for a
meaningful, though not permanent, span of time. The timeliness and
urgency of this task is more apparent than ever with the recent addition
of two new Supreme Court justices, Chief Justice John Roberts and
Associate Justice Samuel Alito, replacing Chief Justice Rehnquist and
Justice O’Connor. This change in the membership of the Supreme
Court for the first time in eleven terms presents an opportunity for
renewing and improving the analytical treatment of this vital topic both
on and off the Court.
Once this debate has occurred and partial consensus achieved, it
will still be true that the models are not complete. Like the armature for
a sculpture, suitable theoretical models are essential, but not sufficient,
to determine the final form and character of the Court’s work. The
sculpture is built up by the sculptor on the armature with materials and
sculptor’s tools and methods, depending upon his vision and craft.
Similarly, any viable approach to judicially enforceable individual
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rights demands attention to the vexing questions of what are the
legitimate sources of law (materials) for use in determining newly
recognized constitutional rights, and what are the legitimate methods for
interpreting and using these sources? Much more scholarly and judicial
attention needs to be devoted to the resolution of these questions, and to
the important related concern for better judicial craft, if we are ever to
achieve a respectable and reasonably stable approach to constitutionally
enforceable individual rights. Careful attention must always be given to
proper and improper enforcement mechanisms of rights by the courts,
and to institutional considerations including legitimate federalism and
other structural realities of our unique American constitutionalism.
It is to these questions and daunting further tasks that I call the
academy, advocates, the courts and thinking citizens of our
constitutional republic. There is much truth to Alex Bickel’s wise
assertion that Supreme Court opinions are the beginning of important
conversations with the American people.359 It is time for the
temperature of that conversation to be turned down, at least temporarily,
by putting aside disagreements over outcome, and engaging in the
discussion that the debate of models and the further tasks outlined
require. Jefferson was surely wrong in thinking that we would need a
new constitution every nineteen years, but he was not far off the mark if
we take him to mean that each generation must renew for itself the
proper sense of the Constitution, its cherished individual rights
protections, and the Court’s proper role in preserving and advancing the
Constitution’s fundamental principles and values through development
of a legitimate and workable rights model.
359
ALEXANDER BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS (1970).