The Volokh Conspiracy
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Over at the Library of Law and Liberty, Richard Reinsch has a post entitled The Book of Judges, in which he pushes back against the recent criticisms of judicial restraint and those who advocate a more engaged judiciary:
The restrained vision of the federal judiciary that has for some time dominated the jurisprudence of right-leaning American legal theorists and lawyers in this country is now under fire. In writings both academic and popular, many libertarian and classical liberal scholars clamor for the supposed symmetry of substantive due process or the bold recovery of an expansive listing of natural rights that is, we are told, embodied in the 9th Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. Even George Will has reversed his own prior position on judicial restraint to now favor "judicial engagement" to protect so-called non-fundamental liberties and unenumerated rights from the rule of majorities, or what some might call the carefully qualified majorities of our republican constitution.
In this response, he makes a highly questionable but all-too-common claim asserted by proponents of judicial restraint. He "wonders if the debate, though, on the status of natural rights in the Constitution and the press for their recognition by the federal judiciary is merely a symptom of the fundamental displacement of Madisonian constitutionalism."
In sum, Reinsch asserts that those who identify the natural rights foundation of the Constitution—as recognized in both the Ninth Amendment and Privileges or Immunities Clause of the Fourteenth Amendment—advocate that judges identify and then protect these rights, the way they currently protect what are called "fundamental rights." That, once identified, these unenumerated rights would receive something like "strict scrutiny" by courts. Indeed, this is how the Warren Court treated the unenumerated "right to privacy" it first recognized in Griswold v. Connecticut under what has come to be called "substantive due process." And he claims that "these scholars are better seen as entrepreneurs of a new constitutional order, as opposed to being involved in a recovery effort of a Lost Constitution."
So Reinsch observes that:
Natural rights jurisprudence is dogged by the problem of how do judges specify these rights so as to not introduce virtually indefinable state powers that are needed to effectuate them? Indeed, open-ended powers bring forth open-ended means that leave us even more removed from a Constitution that was predicated on protecting liberties through its structural design of enumerated powers and competing branches and layers of government.
And he claims that: "Our Constitution's Framers resisted not only the constitutionalization of natural rights rhetoric, . . . they even resisted a Bill of Rights, until compromise demanded recognition of it to secure necessary ratification votes."
But this is not what proponents of judicial engagement have been advocating, and Reinsch fails to provide any examples of such a proposal by those who favor a more engaged judiciary. True, back in 1988, some ten years before I became an originalist, I identified the "constructive method" as one of three ways the rights retained by the people can be identified and protected. But even then I favored what I called the "presumptive method":
Although I think a constructive method of interpretation has its place, many would question the competence of judges to engage in the interpretive enterprise that a constructive method would seem to require. Moreover, sharp theoretical disagreement seems inevitable. Although such disagreement does not undermine the actual legitimacy of unenumerated rights, it does serve to weaken the apparent legitimacy of their protection by judges. . . .
Instead of authorizing a search for particular rights, the Ninth Amendment can be viewed as establishing a general constitutional presumption in favor of individual liberty. According to the presumptive approach, individuals are constitutionally privileged to engage in rightful behavior—acts that are within their sphere of moral jurisdiction—and such behavior is presumptively immune from governmental interference. Identifying rightful conduct by determining the proper contours of this moral jurisdiction is what distinguishes liberty from license. This kind of inquiry is exactly what common law courts have been doing for centuries with occasional assistance from legislatures. The freedom to act within the boundaries provided by one's common law rights may be viewed as a central background presumption of the Constitution—a presumption that is reflected in the Ninth Amendment.
Over the past 27 years, I and others have spent a lot of time elaborating on this approach to protecting the background rigths, privileges, and immunities that are retained by the people without needed to identify and enumerate them. My book, Restoring the Lost Constitution: The Presumption of Liberty, was my attempt to show how such a presumption was more consistent with the text of the Constitution, and avoided the practical difficulties of judges attempting to identify and protect the "rights of man."
Instead of identifying a set of special rights and immunizing them from government regulation, legislatures should be held to the proper scope of their "just powers" (to quote the Declaration of Independence). At the federal level, the national government should be held to its enumerated powers. In this way, does the enumeration of powers protect the enumerated and unenumerated rights retained by the people. For example, by invalidating the Gun Free School Zones Act because it exceeded the commerce power, the Court protected the right to keep and bear arms without having to invoke the then-lost Second Amendment. Courts should not invent doctrines like "the substantial effects" doctrine that allow Congress to exceed these powers under a hyper-expansive reading of the Necessary and Proper Clause.
With this I expect Reinsch to fully agree. He writes:
And so a government of few and defined powers presents the problem of power not as a moral issue, but as a basic question: Does it have the power? Secondly, the concept of enumerated powers should take off the table a range of considerations that were appropriately left to the states.
Yet advocates of "judicial restraint" have criticized the Court for even tepidly adhering to the limits on federal power. Some were unsupportive of our challenge to Obamacare. And we know that Chief Justice Roberts (over Justice Kennedy's objection, as well as that of Justices Scalia, Thomas and Alito) asserted the doctrine of judicial restraint to justify his "saving construction" that converted the individual insurance "requirement" enforced by a "penalty" into an option to buy insurance or pay a small noncoercive "tax." If you are for the active judicial enforcement of the enumerated powers of Congress, then you are not for "judicial deference." You are for judges acting to enforce the Constitution.
But what about state legislatures? Reinsch relies on Russell Hittinger's argument that the framers of the Constitution "resisted not only the constitutionalization of natural rights rhetoric, Hittinger notes, they even resisted a Bill of Rights, until compromise demanded recognition of it to secure necessary ratification votes." True, advocates of a constitution that then lacked a bill of rights argued in the ratification conventions why such a thing was both unnecessary and dangerous. Later, though, in Congress James Madison proposed that such natural rights rhetoric be added to the Preamble, and someone in the Senate proposed it be added to the proposed amendments that became the Bill of Rights.
More importantly, the Constitution's supporters insisted that a bill of rights was necessary and useful for governments of general powers like those of the states. Indeed several state constitutions contained such "natural rights rhetoric," some modeled after Virginia's Declaration of Rights that was authored in 1776 by George Mason.
- Massachusetts: "All men are born free and equal, and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness."
- New Hampshire: "All men have certain natural, essential, and inherent rights; among which are—the enjoying and defending life and liberty—acquiring, possessing and protecting property—and in a word, of seeking and obtaining happiness."
- New York: "We hold these Truths to be self-evident, that all Men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty, and the Pursuit of Happiness."
- Pennsylvania: "That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are, the enjoying and defending of life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."
- Vermont: "That all Men are born equally free and independent, and have certain natural, inherent and unalienable Rights, amongst which are the enjoying and defending Life and Liberty; acquiring, possessing and protecting Property, and pursuing and obtaining Happiness and Safety."
- Virginia: "That all men are by nature equally free and independent and have certain inherent rights, . . . namely the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."
Far from being irrelevant to state courts, such "natural rights rhetoric" had been used by the Massachusetts supreme court to invalidate slavery in that state in 1783 ( which may help explain why Congress refrained from including such language in its proposed amendments).
Keep in mind that, like most of the natural rights retained by the people. the police powers of the states are "unenumerated." Those who cite the uncertainty of identifying unenumerated natural rights are quite content to assert the equally unenumerated police power of states. Yet while these powers are general, few believed that they were unlimited, as federalist Justice Chase famously explained in Calder v. Bull.
Since the inclusion of the Thirteenth and Fourteenth Amendment in the Constitution, it falls to courts to identify the scope of these unenumerated police powers to see if a particular restriction of liberty was within the just powers of the state to enact it. Or instead, whether it was an act of "partial" legislation designed to enrich or benefit some, usually the economically powerful, at the expense of others, usually their competitors. At a minimum, identifying when the proffered health and safety justifications for state regulations are pretextual is well within the competency of courts in an adversary system.
While this is not always going to be easy—I could write my own essay on its challenges—it is not the same as advocating that courts identify and elevate some unenumerated natural rights to the exalted status of "fundamental" and shield them from reasonable regulation to protect the health and safety of the public.
I respectfully suggest that Reinsch and other defenders of judicial "deference" and "restraint" address the arguments that defenders of judicial engagement have actually been making all these years, rather than the same old straw man.