How the Constitution Evolved Between 1981 and 1987


A New York Times story about John Roberts' views regarding privacy notes that "in his two years on the federal appeals court in Washington, Judge Roberts has addressed significant privacy issues only in his Fourth Amendment decisions, sustaining police searches and other actions in the nine cases in which the issue arose. But there is little overlap between Fourth Amendment doctrine and the sort of constitutional privacy rights involved in cases concerning broader social issues."

Am I the only one who worries more about Roberts' tendency to find searches and seizures reasonable than about his ability to perceive the emanations and penumbras that led the Supreme Court to strike down state laws against contraception, abortion, and sodomy? The Fourth Amendment, after all, is undeniably part of the Constitution, while the privacy rights implicated by bans on contraception, abortion, and sodomy are a lot harder to locate there. Which is not to say they don't exist, or even that it's impossible to come up with a principled argument for using the courts to defend them as a matter of constitutional law. (I threw that in for you Ninth Amendment fans.) But it is certainly possible, as Clarence Thomas suggested in Lawrence v. Texas, to believe a sodomy law is silly and unjust without believing it is inconsistent with the Constitution.

Or maybe not. In a 1981 article that Roberts, then an assistant to Attorney General William French Smith, wrote for his boss, he said: "All of us…may heartily endorse a 'right to privacy.' That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label 'fundamental,' and then resort to it as, in the words of one of Justice Black's dissents, 'a loose, flexible, uncontrolled standard for holding laws unconstitutional.'" As the Times notes, this critique echoed the view of many scholars, including abortion rights supporters such as John Hart Ely, who wrote in 1973: "What is frightening about [Roe v. Wade] is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure."

But according to Harvard law professor Laurence Tribe, such views today are beyond the pale. In 1981, Tribe allows, the argument Roberts made was "still at least marginally defensible although, by my lights, misguided even then….It was not until the mid-1980's that intervening developments could be said to have exposed such views as resting on so cramped and narrow a concept of liberty that any nominee committed to a project of restoring them to the law posed a danger to the American Constitution."

What "intervening developments"? Did a long-lost version of the Constitution turn up? Did historians discover new evidence regarding the Framers' intent? No, according to the Times, the crucial development was the rejection of Robert Bork's Supreme Court nomination. Only then did it become clear that John Hart Ely was wrong about Roe v. Wade.

[Note: I've corrected the reference to the sodomy case.]

NEXT: Speaking of Richard Epstein...

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  1. The “intervening developments” Tribe refers to are “There was a bad decision, but people should be used to it by now, so stop complaining.”

  2. Haven’t you heard of the “Living C” Scrolls discovery?

  3. Hey, what about us Tenth Amendment fans?

  4. As nice a place as Lawrence, Kansas is, the case referred to is not named after it. In fact, the case hasn’t anything to do with Kansas; I understand that an entirely different Lawrence was involved in the case.

  5. Lawrence v Texas, not Kansas, please. We Kansans have enough to answer for, with Fred Phelps picketing soldier’s funerals now. We don’t need Texas’s issues too.


  6. Given that the 9th Amendment doesn’t talk about any specific rights, doesn’t that mean that we can assume that there aren’t any rights that the people have that aren’t already enumerated in the other amendments?

  7. In ancient times, hundreds of years before the dawn of history, lived a strange race of people: the Framers. No one knows who they were, or what they were doing, but their legacy remains, hewn into the living document… of the Constitution.

  8. Substantive due process has been around since 1887, not 1987, if we want to talk about the true radicalism of statist authoritarians like Bork.

    Whether Roberts shares Bork’s frightening view that individuals have only those rights enumerated in the constitution should be the subject of intense scrutiny.

  9. Jacob’s comment about 9th amendment fans just screams for a follow-up: a vote among Reasonoids for their fave amendment

  10. Of course there are rights that exist but are not enumerated. Please remember that the Bill of Rights was a tack-on to get enough votes for the body. The people and the states are the correct enumerator of these rights.

    Instead of talking about enumerated rights of the people, how about talking about the enumerated powers of the federal government? Beyond those few, the feds have nothing else. But wouldn’t that lead to 50 different standards on every issue? Yea, I thought that was the point.

    As for bad decsions that have been around long enough for people to be used to them, wasn’t that the “conservative” Renquists reason for not overturning the joke that is Mrianda?

  11. Geek, Esq. appears to view both Bork and originalism as exactly the mirror image of what they stand for. The US constitution is not a pronouncement of individual rights. Unique in the history of mankind, it is a document that sets forth a limit to federal government authority. Individual rights are stated only as a proscribed limit as to what the federal government cannot abridge. That an individual right is not listed does not mean that right does not exist, because the constitution does not list individual rights except as measure of how far federal authority may extend FOR THE GOV’TS ENUMERATED POWERS. However, a power not listed as granted to the federal government was to mean that the federal government was constitutionally restricted from exercising that unstated power.
    The concept of federalism was to check the power of the states, which was intended to be far broader as to individual rights than that of the federal government, by elections at a more local level. Gingrich’s devolution if you will.
    Were I to see the constitution as Geek, Esq. does, I would also be wary of the concept of originalism. In fact, the plain language of the constitution makes clear that it represents a limit of federal power. The Bill of Rights was seen by many founders as repetitive (e.g., of course the federal government can’t abridge citizen’s speech, that’s not an enumerated power). That federal power has been expanded over the years well beyond the constitution’s originally-contemplated structural limits (primarily via the interstate commerce clause and Congress’ spending power) does not impugn originalism, but elevates it. Originalism understands the constitution as a limit to federal power, not a laundry list defining the extent of individual rights. As in the Declaration of Independence, individuals are endowed with those rights and give up some of them in order to form a structured society.

  12. The applicability of originalism to the states’ power to infringe upon individual rights is severely curtailed by the 14th Amendment, which notes that states may not infringe upon life, liberty, or property without due process of law.

    Substantive due process under the 14th Amendment has been a continuously operative legal doctrine for most of this country’s history. I take a rather dim view of those jurists who would roll back the clock on personal liberties to the Reconstruction Era.

  13. Who, other than Lew Rockwell and his minions, believes that the Incorporation Doctrine under the 14th amendment is illegitmate? I’m surprised by how many people on this board continue to state “the Bill of Rights applies only to the Federal government”.

    And Geek, Esq. …, I don’t care how far Substantive Due Process goes back. It is one of the weakest foundations of Constitutional law, and should be abandoned. It could easily be replaced by the Ninth amendment, with no rolling back of the clock. I think jurists are two chickenshit to wield the awesome power of the Ninth and fear a blowback. Thus, we continue to rely on rational basis silliness (silly because it totally aborts the textual meaning of Due Process).

  14. BTW…the spelling errors in my previous post are almost shocking. sigh…

  15. How would you all feel if the right to abortion “discovered” in Roe v. Wade was instead determined to be covered by the 9th Amendment?

    Libertarians, like myself, find great inspiration in the 9th Amendment. It is an obvious folly to try and list every possible right that a person might have. But then comes the problem: Who gets to decide whether a proposed “right” is encapsulated in the 9th Amendment? If it’s Congress, then forget it. You’re not getting crap. If it’s the Supreme Court, then essentially you are giving five Justices the power to make whatever rights they think are appropriate. As nice as it might be for them to come out and rule that “ownership of property is a constitutional right under the 9th Amendment,” they could just as easily decide that “the right to a job, at a decent, livable wage [whatever that means — NaG], is a constitutional right under the 9th Amendment.” So, much as the 9th Amendment seems like a great thing, in practice it’s a can of dangerous worms.

    I suppose this was a big reason why the majority in Roe specifically rejected the 9th Amendment as a source of the right to an abortion. Penumbras were a sturdier foundation than an arbitrary appeal to the 9th Amendment. Note, this is not a defense of the Roe decision, but rather a recognition of the dissonance between the ideal of the 9th Amendment and the actual execution of its theory.

  16. I thought that the 9th was really just a re-iteration of enumerated powers:

    If a law is challenged in court, they can’t just say “Well, there’s no enumerated right to do such-and-such, so we can ban or regulate such-and-such.” Rather, they’re supposed to actually point to the provision that says that the gov’t can regulate such-and-such.

  17. NaG – I doubt that SCOTUS, in any configuration, would confuse Positive rights with Natural rights. A privacy right that encapsulates a right to abortion is Natural, not Positive.

    Thoreau – I believe you are confusing the Ninth with the Tenth.

  18. MP-

    No, I’m thinking of the 9th:
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    In other words, “Nobody said you have the right to…” isn’t good enough. The government must actually prove that it is properly exercising a proper (enumerated) power.

    Which is admittedly kind of redundant with the 10th, but if it’s worth saying once it’s worth saying again.

  19. Enumerated rights and delegated powers are not the same thing. A government does not have rights. The Ninth covers Natural rights, which were not explicitly named in prior amendments, but are still “retained by the people”. The tenth covers powers that were not delegated, i.e. explicitly enumerated in sections such as Article I Section 8. There is almost no overlap between the two amendments.

  20. MP-

    Right, but here’s what I mean:

    Say the gov’t passes a law saying “You can’t do X!” You say “Hey, that violates my right to do X!” The gov’t says “Sorry, but nothing in the Constitution says you have the right to do X, so you can’t say we’re violating your rights.” So you just point to the 9th and say “According to this I enjoy rights that aren’t written down. The presumption is therefore that you can’t mess with me unless you are exercising a power explicitly mentioned elsewhere.”

  21. I think there is some overlap in purpose. The people who objected to the Bill of Rights did so on the grounds that they served no purpose, since the Federal Government had no right to regulate speech or quarter troops under the Constitution the first place. The powers of the Federal Government were limited and defined. The 9th Ammendment was added to quell their fear that the irrelevant list of rights wouldn’t be interpreted as turning the Constitution on its head. Ie- people saying, “well since you specifically say the Feds can make no law respecting speech, and you say nothing about making laws concerning marriage, that must mean that the Feds are impowered to make laws regarding marriage”.

  22. I wish things still worked that way, Thoreau.

  23. Thoreau and Eric:

    I agree with you both. Why do so many “originalists” and “constitutional literalists” that I speak to ignore the 9th? It must be too far down in the list for them to remember. Should have made THAT the 1st amendment, for the attention-deficient modern American.

  24. The trouble with the 9th is where it conflicts with the States. It seems to me that the 9th would pre-empt the Feds from many actions, such as drug prohibition or abortion. As Thoreau opined above, the 9th kinda acts to re-inforce the notion of enumerated federal powers. Rather than list every possible right of the people (and risk forgetting one), the 9th pretty much says the people can do as they please and not be subject to federal interference, save those few areas that are already mentioned.

    However, what happens when a State takes action that the Feds can’t? Prior to the 14th, it seems that the 9th just didn’t apply to State action, so a State could ban abortion or marijuana if it wanted. After the 14th, things are much murkier. How do we know that a state can’t ban abortion or marijuana? Because the feds have no power to do so? That doesn’t seem right. We have the whole idea of federalism because States were expected to have powers beyond what are delegated to the Feds.

    If the 9th applies to the States, then how do we know which State actions are infringements on the rights of the people and which aren’t? Certainly custom and common law play a part, but in the end, it comes down to idiosyncratic, contradictory court decisions. “We, the Court, hold that Behavior X is a ‘Federal-constitutionally protected right’, but hold that Behavior Y is good for 5-10 in the State’s big house.”

    If we restrict the 9th to the Feds, it seems pretty clear to me. Once you start to apply it to the States, it pretty much becomes arbitrary. Of course, since it never seems to be used in arguments or decisions, it’s not like this analysis matters.

  25. Portlander-

    Whatever one might think about the incorporation doctrine (I know some people on this forum don’t like it one bit), I would agree that it wouldn’t make much sense to make the 9th amendment binding on the states, at least not in a literal manner. If taken literally, it would mean that the states have even fewer powers than those enumerated to Congress. Which would be problematic if a state government wanted to, oh, ban theft or something like that.

  26. I would agree that it wouldn’t make much sense to make the 9th amendment binding on the states, at least not in a literal manner.

    I disagree. It seems clear that there are rights of the people and there are powers of the government. By the 9th and 14th neither federal nor state government may infringe on the rights of the people. By the 10th, the powers delineated in the Constitution limit the federal government in ways that states are not limited.

    If taken literally, it would mean that the states have even fewer powers than those enumerated to Congress. Which would be problematic if a state government wanted to, oh, ban theft or something like that.

    The power of a state to make a law against theft does not impede anybody’s right to steal, since there is no such right. Such a state law is not barred by the Constitution. Therefore, it is legal for a state to make and enforce such a law.

    The confusion arises only when we fail to distinguish rights from powers as many are wont to do.

  27. Am I the only one who worries more about Roberts’ tendency to find searches and seizures reasonable than about his ability to perceive the emanations and penumbras that led the Supreme Court to strike down state laws against contraception, abortion, and sodomy?

    No, Mr. Sullum, you’re not. I am too, and I say that as someone who disagrees with your characterization of Roe v. Wade as pulling “…constitutional rights out of thin air.” While I oppose overturning Roe, Casey, Griswold and Lawrence, I’d sooner trust the political branches of government to respect the rights to abortion, contraception, and sexual privacy than I’d trust them not to engage in unreasonable searches and seizures. Abortion, contraception, and sex are popular with voters. Freedom from unreasonable searches, on the other hand, is not. Compare the answers to questions 21-25 of this Fox News poll with the answers to the abortion questions in this Pew Forum poll.

  28. “According to this I enjoy rights that aren’t written down. The presumption is therefore that you can’t mess with me unless you are exercising a power explicitly mentioned elsewhere.”

    You continue to confuse rights with powers. Look at it this way…for a Federal law to be legitimate, it has to be a “necessary and proper” exercise of a delegated power, and it must not conflict with a fundamental Natural right (some of which are explicitly mentioned in the Constitution). For a state law to be legitimate under the Constitution, the Incorporation doctrine holds that the states must respect the fundamental Natural rights of its citizens. The Federal Constitution does not place any restrictions on the laws that a state can execute when the laws respect the Natural rights of its denizens, other than a few very specific restrictions such as denying states the ability to setup trade barriers. State Constitutions take on the responsibility of enumerating the powers of each State.

  29. I sure would like to know that how pre-meditated murder is a “natural” right. Be careful what you ask for, if enough states can raise a bare majority wishing to abolish abortion, it’s gone (this is inevitable.)

    Since the 14th Amendment merely requires that the states cannot treat different people differently in how their constitution rights are protected and exercised, I do not see how it would effect the 9th and 10th amendments.

    Poster above was right, no rights are contained in the 9th Amendment; it is simply to protect from those claiming that a right doesn’t exist because it isn’t mentioned. The 10th merely reitierates that all powers not explicitely given to the Feds belongs to the states or the people.

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