The Volokh Conspiracy
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In my two previous posts, I highlighted Judge Brett Kavanaugh's testimony about originalism and an interesting exchange he had about inalienable rights with Senator John Kennedy. The subject of unenumerated rights was also raised Senator Cruz. I reproduce that exchange here along with some comments on the separation of powers and an independent judiciary [with my commentary in brackets].
Day 2, Part II (45:52 – responding to Senator Cruz on the Ninth Amendment):
I think that the Ninth Amendment and the Privileges and Immunities Clause and the Supreme Court's doctrine of substantive due process are three roads that someone might take that all really lead to the same destination under the precedent of the Supreme Court, which is that the Supreme Court precedent protects certain unenumerated rights so long as the rights, as the Supreme Court said in the Glucksberg case, are rooted in history and tradition. Justice Kagan explained this well in her confirmation hearing that the Glucksberg test is quite important for allowing that protection of unenumerated rights, which the precedent definitely establishes. But at the same time, making clear that when doing that, judges aren't just enacting their own policy preferences into the Constitution.
An example of that is the old Pierce case where Oregon passed a law that said everyone in the state of Oregon had to attend a public school, and a challenge was brought to that by parents who wanted to send their children to a parochial school. The Supreme Court upheld the rights of the parents to send their children to a religious parochial school and struck down that Oregon law. That's one of the foundations of the unenumerated rights doctrine that's folded into the Glucksberg test and rooted in history and tradition.
[As I explained here, Glucksberg is a doctrine developed by the conservatives on the Court to limit the judicial protection of unenumerated rights to those rights that are "deeply rooted in the nation's tradition and history." The key variable is how concretely or specifically you define the rights. Very specific rights–like a right to use medical marijuana–cannot be deeply rooted. More general rights–like a right to preserve one's life and avoid pain and suffering–can be. Justice Kennedy, who had a pretty capacious view of liberty did not expressly repudiate Glucksberg. Going forward, whether a Justice Kavanaugh takes a cramped view of unenumerated rights will depend on how he chooses to define the right at issue. On the other hand, I have long maintained that the best way to protect the uneumerated rights retained by the people is not by judges identifying and protecting particular rights, but by holding Congress to its enumerated powers and the states to a proper conception of their police powers. You can read my most recent explanation of that approach here.–REB]
Day 3, Part II (3:40:25 – in response to Senator Kennedy's question of "What in God's name is a penumbra???"):
Senator, the Supreme Court, as I think you're referring to, once used that term, but it doesn't use that term anymore for figuring out what otherwise unenumerated rights are protected by the United States. What it refers to now is a test in the Glucksberg case, and Justice Kagan talked about this in her confirmation hearing when she was sitting in this seat. The Glucksberg case sets forth a test where unenumerated rights will be recognized if they're rooted in history and in tradition.
(3:41:51) In response to Senator Kennedy's question on the meaning of "deeply rooted"
So when the Court has referred to "deeply rooted in history and tradition," it has looked to history, and as for how deep the history must be, I don't think there's a one size fits all answer to that, and how much contemporary practice matters, I also don't think there is a one size fits all. But the important thing is—and Justice Kagan emphasized this in her hearing—that the Glucksberg test means the Court is not simply doing what your role is, which is to figure out the best policy and to enshrine it into the law in the Constitution, in the case of the Court, but rather is looking for as best it can, objective indicia of rights that are not explicitly enumerated in the Constitution, but that are nonetheless protected. The best example is the Pierce case. Oregon passed a law saying that everyone—and this is in the 1920s—that everyone in the state of Oregon, every student, had to attend a public school and could not attend a parochial or private school. Parents who wanted to send their child to a catholic school sued and argued that it violated the United States Constitution. It made it to the Supreme Court. The claimed right, in essence, was the right of parents to direct the upbringing of children by sending them to a private or parochial school, and the Supreme Court affirmed and recognized that right under the United States Constitution.
[This is potentially significant. Kavanaugh is here referring favorably to the 1925 Due Process case of Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, an unenumerated rights case that Justice Scalia disparaged as a relic of the misbegotten "Lochner Era." That Kavanaugh things well of this case is a positive sign.–REB]
(3:44:35) In response to Senator Kennedy's question on how nine people can determine what values all Americans cherish enough to be read into the Constitution as protected rights
I agree with you that the values question is one that is, of course, first and foremost, for Congress to figure out the policy—or the state legislatures. Judges, federal judges, the Supreme Court, we're not supposed to be—I think consistent with your question—importing our own values into the Constitution. It's not supposed to be five people. We're five people like every other American. We don't have a charter to create new rights just because we think they're best. […] Our role is rooted in law, it's rooted in precedent. It's not rooted in our values per se, but the values reflected either in the Constitution or in the legislation passed by Congress. I realize the grey areas in what I'm saying, but it's important to explain that.
Day 3, Part III (55:55 – in response to Senator Kamala Harris questions about unenumerated rights that are not in "that book" you carry–referring th Kavanaugh's dogeared copy of the Constitution):
Three points, I believe, Senator. Point one, the Constitution—it is in the book that I carry. The Constitution protects unenumerated rights. That is what the Supreme Court has said. […] Point two is Glucksberg, the case that you're referring to. It specifically cited Planned ParenthoodCasey as authority. Casey reaffirmed Roe. Casey is cited as authority in Glucksberg. And point three, Justice Kagan talked about this in her hearing when she sat in this chair, pointed to Glucksberg as the test for recognizing unenumerated rights going forward. I agree with her description of that in her hearing.
[This suggests a more Kennedyesque than a Scalian reading of Glucksberg.–REB]
"Which rights in particular do you believe are 'praiseworthy' of ending?" (57:02):
That was the test that was set forth by the Supreme Court going forward for recognition of additional unenumerated rights. That was cited as authority in that case, Planned Parenthood v. Casey, which reaffirmed Roe.
Day 3, Part III (2:17:02 – in response to Senator John Cornyn on the Bill of Rights being an "a la carte" menu):
As a sitting judge, I try to apply all of the provisions of the Constitution and all the precedents of the Supreme Court without picking or choosing which precedents or which pieces of precedents that I might favor, or which pieces of the Constitution or the laws passed by Congress.
"Are any one of the Bill of Rights more important than another?"
I think they're all important. All the provisions of the Constitution and the structural provisions, of course, are essential, or the Bill of Rights would not be nearly as meaningful because we couldn't have the structural protections to ensure an independent judiciary to protect them.
Day 3, Part IV (20:00 – in response to Senator Ben Sasse on the 9th and 10th amendments, and unenumerated rights):
I think one of the ideas at the convention, and they did talk a bit about a Bill of Rights there, or about individual rights, and they do have some in Article I, Section 9 and Section 10 – we forget those rights. But I want to underscore that the ex post facto and bill of attainder provisions are critical to individual liberty. It is the very definition of a tyrannical government when what you did yesterday is made illegal tomorrow, and you're punished for what you did yesterday when it wasn't illegal then. Those were some of the foundational individual liberties. But the I idea I think they had—and it was maybe a bit of a political miscalculation at the convention—was because the federal government was only given certain, specified powers, we don't need to put in a Bill of Rights because the government won't have the power to do these things in the first place. That didn't go over so great in some of the ratifying conventions, and some of the promises that were made were, instead of amending the existing structure, let's get to work as soon as we get to New York in 1789 on a Bill of Rights. There were a variety of discussions, and that's what Madison did when they got there in 1789. So, I think your point is correct in respect with thinking about where rights come from, but I think in the practical politics of the day, the people thought the government wouldn't do that and they said, "What are you talking about? There're lots of powers in this Constitution. Even if you think that, let's make sure that the federal government can't infringe these core liberties, which we think are fundamental to being an American."
On the Separation of Powers and Independent Judiciary
Opening statement (3:17:45):
Our independent judiciary is the crowned jewel of our Republic. In our independent judiciary, the SC is the last line of defense for the separation of powers, and for the rights and liberties guaranteed by the Constitution.
Day 2, Part II (2:06:37 – discussion of his favorite Federalist Papers):
Federalist 10, which talks about factions in America and explains that having the separation of powers in the federalism system, dividing power in so many different ways would help prevent a faction from gaining control of the entire—all the power for the people of the United States—and that makes it frustrating at times because it's hard to have legislation, but that division of power helps protect individual liberty. […] Federalist 47 – the accumulation of all power in one body is the very definition of tyranny.
Day 2, Part II (2:10:03):
If there were some perfect group of people, we would put all the power in that one body, but because we're imperfect, putting all the power in that one body would be the definition of tyranny. The way we deal with the imperfection while also having a government because we're imperfect is dividing the power, separating the power and, to my mind, that all reinforces why the Framers—despite the flaws in the Constitution, and there were flaws—the genius of separating the legislative power and having a federalism system where we have state governments that can further protect liberty and laboratories of democracy, as well.
Day 3, Part IV (22:57 – in response to Senator Sasse's question regarding the right to express unpopular ideas and on whether free speech can ever be called "violent"):
I will just add one sentence to the the anti-majoritarianism point. We think of the individual liberties specified in the Constitution as supporting that, but the structure—the separation of powers and federalism—is part of that same overall idea, which is the protection of individual liberty against majoritarian rule, and the whole document tilts toward liberty.
["the whole document tilts towards liberty" is very Kennedyesque. My former student Helen Knowles wrote a book on Justice Kennedy's approach called The Tie Goes to Freedom. By "Kennedyesque," I don't mean the sort of nonoriginalist reasoning that appealed to Justice Kennedy. I mean viewing liberty–not the will of democratic majorities–as lying at the core of what the Constitution protects.–REB]