In the past two posts, I outlined the Institute for Justice’s constitutional challenge to the bone marrow provision of the National Organ Transplant Act. In short, our clients want to use strategic incentives such as $3,000 scholarships to incentivize more lifesaving bone marrow donations, but doing so is considered criminal organ-selling.
Today, I’ll discuss the standard of review that applies to the bone marrow case, called the “rational basis test,” and critique the constitutional philosophy known as judicial minimalism. Tomorrow, I’ll talk about how principled judicial engagement works (as opposed to judicial activism, which is a legitimate, though overblown, concern).
The bone marrow case is about unenumerated rights so before getting to the rational basis test, let’s briefly discuss unenumerated rights. Among some conservatives, unenumerated rights are met with glib dismissal, often along the lines of “Last time I checked, the Constitution didn’t say anything about [asserted right X].”
But no one seriously disputes that unenumerated rights exist, although there is considerable debate over their nature and scope. Who doubts that we have the right to travel or vote or raise children? The right to earn an honest living in the lawful occupation of your choice was among the first unenumerated rights the Supreme Court recognized and that right has an undeniable basis in the Privileges or Immunities Clause of the Fourteenth Amendment (see Randy Barnett’s outstanding scholarship).
In terms of the bone marrow case, the right at stake is the right to defend human life through safe, effective, lifesaving, and otherwise legal medical treatment. Is there serious doubt that this right exists? Suppose Congress passed a law forbidding doctors from providing medical treatment to the sickest or oldest Americans in an effort to control healthcare costs. Wouldn’t that obviously violate the rights of doctors and patients? Until Congress enacted NOTA in 1984, the right of a parent like our client Doreen Flynn to secure otherwise legal medical treatment for her girls had never been conditioned on someone doing something for free.
The history of the Constitution supports unenumerated rights. Madison presciently warned against enumerating rights because he foresaw what has become a cornerstone of the judicial-minimalist worldview: the argument that the only rights we have are enumerated ones.
Inordinate emphasis on protecting only the relatively few enumerated rights cannot be squared with the Constitution as a whole. The Bill of Rights was part of a constitutional scheme that was both intended and understood to have created a government of limited, enumerated powers. Had the authors of the Constitution known that what I’ll call “legislative activists” in the elected branches would, with the eventual approval of the courts, repudiate any structural limitations on their power, then we would likely have a much different Bill of Rights, one that presumably would have expressly identified a much larger set of liberties. Judicial minimalists should understand that the enumeration of certain rights does not reflect a decision by the Constitution’s ratifiers that the federal government is supposed to be, to borrow Randy’s metaphor, a vast sea of government power with tiny islets of liberty.
Unenumerated rights are in the Constitution. But here’s something that isn’t: the rational basis test. Applying the rational basis doctrine to unenumerated rights emerged out of a series of 1930s cases, particularly Carolene Products and its infamous footnote four, which collectively stand for the proposition that legislation will be upheld as long as there is a rational basis for it. In an economic liberty case in 1955, Williamson v. Lee Optical held that a law need only have a “conceivable” rational basis, meaning that the actual purpose and effect of the law, and the facts of the case, supposedly don’t matter much. (Justice Douglas, who wrote Williamson, conveniently forgot about the rational basis test a decade later when he came across an unenumerated right he liked in Griswold v. Connecticut: privacy in the context of contraceptive use). In modern rhetoric, social and economic legislation subject to an unenumerated rights challenge will be upheld unless the plaintiff can “negative every conceivable rational basis for it,” whatever that means. Conventional wisdom holds that this is really just code for the government always wins.
This slicing and dicing of rights into different categories with different standards of review, and placing an extraordinarily onerous burden on certain rights, is pure judicial invention. Conservative-leaning judicial minimalists should reflect on the irony that their philosophy is rooted in the big-government agenda of the New Deal Era, and that among the Supreme Court’s most “minimalist” decisions—in the sense of showing extreme deference to the elected branches—are its most activist ones such as the refusal to enforce essentially any structural limits on federal power (Wickard, Raich).
There is no reason why the government’s legitimate functions—like protecting public health and safety—necessitate a standard of review in which courts are required to ignore pro-citizen facts, invent pro-government facts, and actively try to imagine reasons to uphold anything a legislature has done. Why is the truth antithetical to constitutional adjudication?
Not even the Supreme Court believes its own rhetoric about blind deference to legislatures. In the context of rational basis review, the Court pretends that legislative acts embody popular will and were created through a deliberative legislative process that must be respected at all costs. But in the campaign finance context, the Court uncritically accepts the premise that legislatures are corrupt or seem corrupt, and thus upholds massive restrictions on the First Amendment. How can the Court possibly reconcile its view of politics in the campaign finance context with its Pollyanna-perspective on legislatures in other contexts? (For the record, the solution to corrupt and activist legislatures is constitutional limits on their power, not campaign “reform” laws that vitiate rights to speak, assemble, and petition the government).
And if the rational basis test is so great, why not have it for everything? Pick a right you like and then think about what it would mean for that right to get rational basis review?
Fortunately for liberty and our clients in the bone marrow case, the Supreme Court also doesn’t believe its own rhetoric about the rational basis test. After all, if the standard were truly that government power will be upheld unless the citizen can “negative” every “conceivable” justification, then citizens would never win rational basis cases.
But they do. The Supreme Court has invalidated at least a dozen laws under the rational basis test. And there are literally hundreds of federal and state trial and appellate decisions doing the same in an array of contexts. They don’t do it often enough to provide our liberty with the protection it deserves, but courts certainly do protect citizens from irrational, arbitrary, and otherwise illegitimate uses of government power.
Tomorrow, I will discuss principled judicial engagement in the context of the bone marrow case and how to avoid falling into the trap of judicial activism.
Steve says:
I like this argument better, but then again, I’m a liberal who doesn’t mind unenumerated rights. I agree with the general principle that no one should be able to stop a patient from receiving the medical treatment that his doctor recommends, although I wonder if IJ is inadvertently stepping into the abortion debate here.
But I think the courts would see a clear difference between a law that forbids a doctor from performing a bone marrow transplant, and a law that permits the operation to occur but simply bars payment of compensation to the donor. Who knows, maybe the law ought to be analyzed under the “undue burden” standard that applies to abortion restrictions, in which case I doubt it would pass muster. But I think the courts would be cognizant of the fact that if they recognize that right, there’s no way to avoid going all the way down the slippery slope to a free market for kidneys and other organs, and I don’t see them taking that step. Still, at least it’s an argument that can be advanced in good faith, which I can’t say with respect to the equal protection argument.
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November 4, 2009, 11:27 amIJ’s Bone Marrow Case: Judicial Minimalism and the Rational Basis Test « Josh Blackman's Blog says:
[...] 2009 — Josh Blackman Jeff Rowes continues his great series of posts at Volokh. Here is his latest piece, where Jeff discusses unenumerated rights, the rational basis test, Footnote Four of Carolene [...]
Orin Kerr says:
I hereby pronounce Jeff Rowes unconstitutional under the unenumerated rights of the U.S. Constitution.
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November 4, 2009, 11:33 amMartinned says:
Based on which precedents?
But generally, I have to say that I get the symmetry between the narrowness and/or precision of the right, and the standard of review. It makes sense that something (relatively) vague like privacy or equal protection outside the protected class context should get a lower standard of review than the first amendment, which has been fleshed out in millions of cases.
Essentially it’s the difference between a rule that says: Laws that do X are forbidden, and we’ll review generously towards the legislature and a rule that says Laws that do Xa, Xb, Xc or Xd are forbidden, and we’ll be very precise about that.
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November 4, 2009, 11:45 amCarl The EconGuy says:
A law must be upheld if there is any “reasonably conceivable state of facts that could provide a rational basis for the classification” (United States Railroad Retirement Bd. v. Fritz).
In addition, the Court has said that “[i]t is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature” (FCC v. Beach Communications). Thus, a “legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data” (same case). So even if the legislature did not articulate a rational basis, the court can invent one.
Great. But the real problem with “rational basis” is that it only looks at potential benefits, not costs. If we were to take a stricter definition of rational basis, and require the legislature to balance benefits *and* costs, including indirect costs, we could reestablish the Lochner era.
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November 4, 2009, 11:45 amPatHMV says:
Utterly unconvinced. You can say it’s not all you want, but you’re still preaching for libertarian-based judicial activism.
It now appears that you are using the vehicle of the bone marrow case primarily to foster a significant change in Constitutional jurisprudence. You will lose, and massively.
It’s not in fact irrational to both believe that legislatures are corrupt (not that I am in any way a fan of campaign finance “reform”) and to believe that courts must defer to such legislatures except when there really is no actual rational basis for a law (i.e., no rational basis at all, not just a “we disagree with the rationale”)... one may simply believe that the alternative to deference to the legislature is to resign ourselves to living in an oligarchy dominated by the judicial branch.
This one case is making me rapidly lose much of the respect I once had for the IJ.
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November 4, 2009, 11:52 amOrin Kerr says:
Martinned,
The precedent is Jeff’s own argument.
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November 4, 2009, 11:57 amMartinned says:
What I meant is that, even more than their enumerated brothers, unenumerated rights have to be developed slowly, using the common law method. If pressed, I’m sure Jeff could develop a careful legal argument, citing ample precedent, supporting his position. Based on my (modest) understanding of this area of the law, I don’t think such an argument would cite enough precedent to be convincing, but I’m sure he would be willing and able to have a go. What he’s doing is not an ipse dixit.
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November 4, 2009, 12:03 pmBama 1L says:
What is so contradictory about:
1. The Court generally upholding legislation under a weak rational basis test.
2. The Court upholding campaign finance reform laws by accepting the legislature’s premises for passing it.
Those seem perfectly consonant.
If you want a tougher rational basis test and you aren’t willing to trust legislatures, how do your then justify your use of legislative history to interpret an unambiguous statute? What is your view of the legislative process? Why do you trust committee reports, early drafts, etc. to tell you the true reason for the law? I guess that will be tomorrow’s installment. I am genuinely curious.
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November 4, 2009, 12:06 pmanon says:
I like that you subject your own judicial philosophy to a rational-basis standard. Very meta.
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November 4, 2009, 12:08 pmOrin Kerr says:
Martinned: “If pressed, I’m sure Jeff could develop a careful legal argument, citing ample precedent, supporting his position.”
If that is the case, I hereby press Jeff for such a careful legal argument, citing ample precedent, supporting his position.
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November 4, 2009, 12:11 pmSamanthaC says:
Much of this discussion presumes a false dichotomy. It’s not “rational basis test” or “Lochner run wild.” There are all sorts of standards, some of which are very deferential.
So let’s step back a minute — the rational basis test is made up, and crazy. It’s not a real test — it’s “the government wins” test. (Whenever I explain it to nonlawyers, even very liberal progressives, they think it’s nuts.)
If you’re really following Beech Communications, nothing (including this case) should be able to pass the rational basis test. But doesn’t this case, and others, illustrate why the rational basis test is a bad rule?
Why not use this case as a reason to make up a better standard? Such as, the government has to articulate its real reasons for a law, and the opponents can try to disprove the rationality of those? (In other words, take out the part where the court gets to make up reasons.) Or apply something similar to the substantial evidence test used in adjudicating agency action.
It’s not Lochner or Bust. Law schools often suggest the only way to avoid Lochner is by not questioning economic legislation at all. That’s absurd. Requiring the government to articulate real reasons will not invalidate minimum wage laws, or welfare, or any other New Dealish legislation, because the government sincerely had reasons to pass it that it’s willing to defend. It will invalidate mistakes like this, that hurt people unthinkingly, for no real reason.
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November 4, 2009, 12:19 pmPatHMV says:
One of the fundamental flaws in Rowes’ analysis is what I pointed out yesterday... his belief that the courts are the primary protector of our rights (including unenumerated rights). That’s a very European view... witness martinned’s support above. Lots of countries have wonderful-sounding declarations of rights and court systems, but are remarkably unfree. The bulwark of our protection exists in the “checks and balances” of the political system. If Rowes and his ideological cronies can’t stop unwise or unsound laws passing through the political process (with all the roadblocks the Framers installed to make passing legislation usually pretty damn difficult), then that means the public in general doesn’t have much problem with those laws.
Yes, the courts should strike unconstitutional laws, when they violate the text of the Constitution (either because they violate a specific rights guarantee or because they exceed the powers granted to Congress), but that’s a far cry from the expansive non-“minimalism” for which Rowes is advocating.
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November 4, 2009, 12:22 pmMartinned says:
I think Jeff assumes, rightly or wrongly, that this blog is not the place for such detail. Alternatively, it is possible that they’re still working on that part, since their initial complaint is also a little thin on legal detail. (Not being an American lawyer, I’m not sure if that is strange.
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November 4, 2009, 12:22 pmyankee says:
This argument is extremely confused. You claim to be talking about the rational basis test, but spend the first half of the post talking about unenumerated rights. Then you switch to arguing that the rational basis test and the three-tiers-of-scrutiny system aren’t in the constitution, with an aside about this is supposedly inconsistent with the campaign finance cases. Then (finally) you provide two paragraphs of non-analysis to the effect that the courts have purported to strike down some laws under the rational basis test. You say nothing about why NOTA is more like Cleburne than like Lee Optical.
In theory, you could come up with a coherent theory of when a law fails the rational basis test by analyzing the cases where laws have been struck down under that test. If you could integrate them that way you might be able to get a court to sign off on it. But you haven’t made any effort to do that: all you’ve done is change the subject.
I am not impressed.
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November 4, 2009, 12:24 pmMartinned says:
The problem with that is that laws are written by Congress — who may or may not have one single reason for wanting a particular law — while the law is defended in court by the executive.
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November 4, 2009, 12:24 pmPatHMV says:
SamanthaC... when you say “the government” should have to give its reasons, who exactly do you mean? Do you think Congress as a body should be made a party to such litigation? Must Congress adopt each brief filed to state what its reasons are? Or will you allow the Solicitor General, from the Executive Branch, to state what those reasons are? What if Congress had one “real” reason for passing it, but the President had another “real” reason for signing it? What if the Democrats who voted for the bill had one “real” reason for voting for it, but the Republicans who voted for it had a whole different “real” reason for their vote?
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November 4, 2009, 12:26 pmMartinned says:
Geographically, I’m afraid you have it backwards. There’s no place on earth where lawyers rule the world like they do in the US. Only in the US do they seem to apply the rule of ubi ius, ibi actio so literally. My own country, for example, has a constitutional ban judicial review of statutes, while in many countries that do have such judicial review, its nature is much more modest. The reason for that is the widely held preference to place the primary responsibility for the constitutionality of laws with the legislature.
(Instead of the absurd idea that a legislator might vote for, or a president might sign, a law they believe to be unconstitutional. If you’re going to add a signing statement saying that certain aspects are unconstitutional, why did you sign it????)
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November 4, 2009, 12:27 pmMartinned says:
For the record, I support unenumerated rights because it is my sense that this is a reading more consistent with the (original) meaning of the relevant constitutional provisions, because I am actually pretty impressed with the common law system, assuming it works as it is supposed to, and because the recognition of unenumerated rights avoids the need to do all sorts of creative things with the other rights, such as making the second amendment about self-defence.
The fact that I hold this position does not, however, say anything about the level of judicial activism/scrutiny I favour. As I wrote above, I come from a legal system where the courts are much more modest in this respect, which has the benefit of depoliticising and re-legitimising them. Applying a relatively low level of scrutiny in many situations can help keep the courts out of cases that are essentially “un-legal”, in that they turn on questions of fact that the courts are no better equipped to judge than Congress. That way, the courts can avoid the impression that they vote their underlying policy preferences, and focus on what they’re supposed to do: solve legal disputes.
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November 4, 2009, 12:37 pmyankee says:
No, it’s not. In the U.S. system, the role of the complaint is to set forth facts that, if proven, would support judgment for plaintiffs under some legal theory. It is not the role of the complaint to argue the case.
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November 4, 2009, 12:47 pmDavid Chesler says:
What does it mean to disprove the rationality? For instance, Congress says “We shall pay people $4,500 to turn in their cars, because that will make them buy more GM cars.” Or “We shall outlaw cash payments for donations of parts of humans where the donating hurts more than a needle prick or takes more than an hour, because [choose reasons folks have given here and] there will be more than enough people who do it voluntarily” If the opponent can prove they were wrong (“The last time you did that they all bought Toyotas” “There is a shortage” “You can have a secure free state without RKBA”) does the court get to decide which argument the legislature should have believed and change what they enacted?
Does Congress have to provide a rationale in every case? What about statutes passed before this requirement?
There isn’t much difference between “The court can conceive of a reason while not giggling” and deference to whatever reason Congress now would attach to any bill — probably they’d just buy a rubber stamp that says “In order to better regulate interstate commerce” (see the two internet communications decency acts, IIRC.)
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November 4, 2009, 12:51 pmJeff Rowes says:
Here’s a thought-experiment for those who are so vexed by the notion of unenumerated rights and some modicum of even modest judicial review for them. If you think that a citizen should only prevail when she “can negative every conceivable justification” for a challenged law, what would be an example of a law that you think a court could invalidate under that standard? If you can’t think of any, then you should at least realize that it’s not that you support the rational basis test (at least as it’s sometimes formulated), it’s that you don’t support judicial review. Then we can at least have a candid debate about whether the history and caselaw of the Constitution support the view that unenumerated rights don’t exist and, therefore, judicial review of those rights doesn’t exist.
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November 4, 2009, 12:56 pmloki13 says:
I second Yankee’s post, supra. I have read the complaint, and I couldn’t make much of it. I have tried to follow your arguments with generosity, and I still can’t understand where you’re coming from.
The first part of this post deals with unenumerated rights. Great. But you’re confusing unenumerated “rights” with legislation generally. Every piece of legislation, in some way, impacts someone. In that way, of course, everything infringes on some sort of “right” (let’s call it a liberty interest, or an “unenumerated right”). But the unenumerated rights that we care about are the ones deeply rooted in our nations histories and traditions. See Glucksberg. So, quite simply, the first part of your argument just doesn’t make any sense– unenumerated rights has a specific connotation, and either you are arguing for the creation of a new unenumrated right (which you aren’t), you are arguing for the deprivation of a specific right as has been recognized (like liberty without due process– think of confinement), or you’re just throwing in the terms.
Your next argument is just “the government always wins”. Well, if there isn’t some *specific* reason that a law should be found unconstitutional, yes, the government should win. But you’re not arguing that. You’re not arguing that there’s a specific unenumerated right violated, you’re not arguing for the creation of a new unenumerated right (medical self defense, which was recently rejected for life-saving drugs), you’re not arguing that it violates the commerce clause (beyond Congress’ powers to implement)…. you’re just arguing that the legilsation isn’t rational– that *no one* could ever pass it. But as evidenced in the comment boards, there are people that could conceive of passing this legislation.
Then this, “And if the rational basis test is so great, why not have it for everything? Pick a right you like and then think about what it would mean for that right to get rational basis review?”
Because there are specific rights IN THE CONSTITUTION. Because there are specific things CONGRESS CANNOT DO. And you’re not arguing that.
As for SCOTUS invalidating “at least a dozen rights under rational basis”…. well, first you’d need to break down the difference between the EPC and SDP invalidations. Once you do that, you’d see the paucity of your EPC argument (I’d still like to see the EPC cites, solicitor). Then you’d note that since Carolene Products, out of all the legislation passed by states and the Congress, and ignoring Romer and Cleburne (and Lawrence?) you’d have 10 or less laws invalidated. Out of all the completely irrational legislation passed, that’s not much of a standard. Heck, think back to the founding. Between Marbury (specific part of the Constitution) and the activist judiciary of the 1870s, no legislation was struck down. From that point to Carolene Products, I believe all the legislation struck down was due to specific overreaches (either exceed commerce clause, or the lochner era SDP unenumerated rights etc.). So you have, what, 10 or less SDP rational basis liberty cases since the founding?
I just don’t know what to say at this point. I know a blog post is not the best place to detail scintillating legal arguments, but this is getting pretty bizarre.
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November 4, 2009, 1:00 pmloki13 says:
Here’s a thought-experiment for those who are so vexed by the notion of unenumerated rights and some modicum of even modest judicial review for them.
Here’s a thought experiment– SCOTUS has case law about unenumerated rights. See Glucksberg. What you’re arguing is that ever law infringes rights and that every law should be invalidated if it isn’t “good enough”. Please articulate what your “good enough” standard is.
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November 4, 2009, 1:05 pmjhubme_24 says:
So...
1. there’s a (Constitutional unenumerated) right to offer compensation to bone marrow donors
2. there’s no rational basis for the “rational basis” test
3. but since the bone marrow portion of NOTA is an “irrational, arbitrary, and otherwise illegitimate use[] of government power,” the courts will (or just should?) strike it down
Not sure, but it seems that every side seeking to show the unconstitutionality of a statute that would ordinarily be subject to “rational basis” testing would make the first two arguments, and I don’t think the courts have been sympathetic (or else it wouldn’t need to be argued anymore). The third point is the crux, but I guess we’ll have to wait until tomorrow to learn how excising laws against offering compensation to bone marrow donors can be done without eviscerating all laws against marketing organs. I hope you’ll thoroughly address why bone marrow transplantation should be considered safe in light of the considerable risk of graft-versus-host-disease and the accompanying poor prognosis for the recipient.
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November 4, 2009, 1:05 pmMartinned says:
How about Posner’s Horse meat case? (i.e. Cavel International v Madigan (2007).) I’m not sure if I support substantive due process as such, but if ever there was a law utterly lacking in rational basis, it is the law banning the slaughter of horses for human consumption (but not for the purpose of making dog food out of them).
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November 4, 2009, 1:08 pmkrs says:
This is frustrating, as I’m sympathetic to the policy interest and I really expected to see plausible legal arguments in today’s post. I hope the briefs are better than the blog posts. Maybe I’m not following the argument, but here’s how I understand it:
1.*EVERYONE* agrees that unenumerated rights are in the Constitution somewhere. Maybe the Privileges or Immunities Clause. The Founders clearly contemplated unenumerated rights and feared, rightly, that enumerating rights might lead future generations to act as though those were the only rights that existed against the government.
2. This isn’t about the right to pay for bone marrow; rather, it’s “the right to defend human life through safe, effective, lifesaving, and otherwise legal medical treatment.” QED. Who could possibly doubt that that right must be in the Constitution somewhere?
3. Suppose Congress passed other laws forbidding doctors from providing medical treatment to patients who needed it. Wouldn’t that clearly be unconstitutional?
4. The rational basis test is a judicial invention that came up during the New Deal and should therefore be rejected by the conservative Justices.
5. The current doctrine in which rational basis review applies to some rights and not others is arbitrary and not rooted in the Constitution.
6. Some people win rational basis cases, so IJ should win this one.
7. The rational basis test is... just... so... unfair!
It strikes me as a lot of ipse dixit and appeals to emotion. Yes, there are unenumerated rights and yes, the rational basis test is a judicial invention, but it doesn’t follow from either of those things that the Constitution forbids Congress from prohibiting compensation for bone marrow donations. Among the many problems with the arguments that occur to me here is that this isn’t about “the right to defend human life through safe, effective, lifesaving, and otherwise legal medical treatment”; rather it’s about the right to pay people to donate marrow to facilitate it. Bone marrow donation is perfectly legal, as far as I know.
I suppose everyone who makes big changes happen has to deal with an annoying army of skeptics at the outset... maybe you’ll win and end up saving people’s lives by facilitating donations that would not occur but for the compensation that people want to provide.
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November 4, 2009, 1:12 pmyankee says:
But what does this have to do with the rational basis test? The Supreme Court has found that unenumerated rights exist and merit heightened scrutiny. See, e.g., the right to privacy cases. Liberals tend to support this approach, as do a lot of libertarians, e.g. VC blogger Randy Barnett. (Of course they disagree about what the unenumerated rights are but that is another matter.)
You are free to argue that the ban on bone marrow transmission violates an unenumerated right and should be subjected to heightened scrutiny. That’s very different from arguing that it violates the rational basis test.
And none of us are required to agree with the rational basis test to believe your argument isn’t very good. I personally think the rational basis test is incoherent, but it is the law as actually applied, and it is what you need to argue to win your case.
If you are claiming that NOTA violates the rational basis test, you need to argue that it is more like e.g. Cleburne than like Lee Optical. Arguing that the rational basis test should be reformed or abolished is a completely different enterprise.
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November 4, 2009, 1:12 pmSoronel Haetir says:
I have found this series of posts terribly disappointing. I am in fact in favor of open organ markets, yet the reasoning here strikes me as incredibly shoddy. Unrestrained courts, which this argument would lead to if followed, are no better than unrestrained legislatures.
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November 4, 2009, 1:14 pmloki13 says:
Martinned,
That was a case about the dormant commerce clause. Horse meat, Bo Derek, Blago, Posner, and the dormant commerce clause. Could you ask for anything more?
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November 4, 2009, 1:15 pmMartinned says:
You’re right, though I still think it is a prime example of exactly what Jeff asked for: a law with no rational basis.
BTW, on p. 10 and further of Posner’s ruling:
BTW, a nice example of why it isn’t necessary or even good to force the legislature to somehow stick to just one reason for the law is this year’s Iowa gay marriage ruling. The Iowa supreme court had no difficulty going over every proposed rational basis for the law one at a time. That analysis was under “heightened scrutiny”, but as far as I’m concerned the conclusion should have been the same under rational basis review. In any case, it shows that there’s no problem with the method.
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November 4, 2009, 1:32 pmSamanthaC says:
Your argument that you can’t really tell what Congress wanted to do and why proves too much. Courts *must* look at legislatures’ real reasons when they judge the constitutionality of laws that burden First Amendment rights or laws that seem to discriminate based on race or gender, for instance. To say that we can’t look at whether the legislature’s real reasons are justified is to say that other tests for constitutionality — such as strict scrutiny or intermediate scrutiny — can’t be performed.
Courts look at the legislature’s reasons all the time — and they judge what those were based on what the law says, based on what the members of the legislative body were talking about the time, and a host of other kinds of evidence. There can be gray areas, certainly, but most of the time it is obvious what kinds of problems the legislature is trying to solve and why.
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November 4, 2009, 1:32 pmJeff Rowes says:
I’ll talk about that tomorrow. I certainly do not think that “good enough” is the standard. That is just what extreme judicial minimalists seem to “see” in any argument suggesting that there are discernable unenumerated rights and the Republic can withstand principled adjudication.
Glucksberg is an interesting case. That’s a “fundamental” uneneumerated rights case (in which the alleged right was rejected), which introduces yet another artificial distinction. Yet the standard in Glucksberg would lead to what seem like odd results. A fundamental right must first be defined with great specificity and, once that is done, you ask whether that specific right is objectively rooted in the nation’s history such that ordered liberty could not exist without it. This seems appealing, and it’s certainly on to something, but this method can’t settle the question entirely because in 1967 in Virginia it surely wasn’t deeply and objectively rooted in the nation’s history that people could marry someone of a different race (as Glucksberg recognized, the Loving Court invalidated the marriage law on substantive due process as well as equal protection grounds).
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November 4, 2009, 1:34 pmyankee says:
The key point of Rowes’s argument:
This is the central problem with Rowes’s argument. Sure, people do win rational basis cases, but the vast majority of the time they lose. Why is the NOTA challenge like the cases the rational basis challengers win rather than the ones they lose? Rowes hasn’t said a word about that.
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November 4, 2009, 1:39 pmloki13 says:
SamanthaC,
I think you have the analysis backwards. First, the Courts always look to the text of a statute. That is (almost always) determinative. It is true that Courts will on occasion look to things such as legislative history to flesh out their understanding; there is a debate on SCOTUS (see Breyer, cf. Scalia) about the weight that should be given to this.
Why? Because the final text of the bill is what the Congress intended. Any single member can say things on the record (or add it to the record at a later date!), or testify later about what they “thought” the bill should be; but that was not the will of the entire Congress as passed through the legislation.
Sometimes, though, when looking at certain rights under strict scrutiny, the Courts will look past the text of a particular statute if there is a facially neutral statute with a disparate impact AND there is extreme evidence that the purpose of the statute was to create the disparate impact. Think of a bunch of meeting where a legislature says “we will pass this law in order to disenfranchise black people” but the actual statute is worded neutrally. These cases are few and far between, and falling out of favor.
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November 4, 2009, 1:39 pmloki13 says:
Jeff Rowes,
Thank you for your reply. As you can probably tell, I am unsympathetic to your claims, but I am hopeful that I can come to batter understanding of your analysis. If I could make a request for your next post(s):
1. If you could please flesh out the difference between the EPC and SDP portions of your analysis, or are you including both because many lower courts muddle the distinction?
2. Under your analysis, and based on current precedent, is there a difference between a “fundamental unenunerated right” and an “unenumerated right” and, given your analysis, doesn’t all legislation from states and Congress impact “unenumerated rights”?
3. What stadard of review would you suggest for the legislation (extension of current law)? How do you expect to win under the current law (rational basis)?
Again, I appreciate your engagement, and I understand if you cannot answer some questions due to your pending case.
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November 4, 2009, 1:45 pmOrin Kerr says:
Soronel writes:
But that’s not true if you are a libertarian who wants a small state by any means necessary. Legislative action tends to create regulation; judicial action tends to invalidate regulation. So if you are wiling to take any position to get to the small state you want, you should want to empower whatever branch leads to less regulation, that is, the judicial branch. Sure, it’s results-oriented: But if you are an activist, that just means you’re on the right track.
I personally think it would be refreshing if those who favor these positions would just be honest and admit the theory is entirely driven by their personal policy preferences. That is, you start with the desired policy result, and then reason back to whatever non-laughable theory most plausibly supports it. But then I guess constitutional law theory is not famous for its candor.
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November 4, 2009, 1:48 pmTGGP says:
Who doubts that we have the right to [...] vote
The founding fathers created a timocracy in which most did not have the right to vote. Unfortunately, many states removed property-based restrictions (the same things which had preserved Rhodesia from becoming Zimbabwe for many years) and it came to be thought of as the right of all adult white males.
Instead of “rational basis” & unenumerated rights, a better argument would be that the strictly limited powers granted to the federal government in the Constitution do not extend to all the things they try to do.
I like Orin’s joke. Ward Churchill argued that the Ninth Amendment included the unenumerated right not to be offended by Columbus Day parades.
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November 4, 2009, 1:51 pmPatHMV says:
Jeff Rowes said:
Horse puckey. I support judicial review. I don’t support the “rational basis” test, which I think in all cases serves merely as a proxy for the courts’ policy preferences. If Congress passes a law which infringes on the freedom of speech, I support judicial review to strike that law as unconstitutional. If you can clearly identify some unenumerated right, and show me where Congress has infringed upon it, then fine, I support judicial review of that. It is immaterial whether Congress has a “rational basis” for infringing on the protected right or not.
You seem to be saying that the “unenumerated” rights are different from the enumerated ones, in that Congress CAN restrict and infringe upon the unenumerated ones so long as it has a rational basis for doing so. I don’t agree. To the extent you are relying on the 9th and 10th Amendments, or some even more vague substantive due process theory, to establish judicially-enforceable “unenumerated rights,” can you identify what provision of the Constitution allows Congress to infringe upon them, but not the enumerated rights, with a “rational basis”?
There are, ultimately, only two questions to be asked when a court reviews the constitutionality of Congressional legislation. First, is the Congress empowered to enact that legislation by some affirmative grant in Article I (commerce clause, spending power, regulation of armed forces, etc.). Second, is Congress prohibited from enacting that legislation by some restriction or prohibition embodied in the Constitution, the Bill of Rights, or subsequent amendments. There is no place in that 2-step process for determining that yes, Congress has the power to enact that legislation generally, but it didn’t enact it in a manner which we the court think is rational, so the law is stricken.
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November 4, 2009, 2:01 pmMartinned says:
In Europe, sure they do (and are). But then, we have coalition governments who tend to speak with one voice. In the Netherlands, for example, if you want to know about the background of a law, you look at the government’s accompanying memorandum, which they send to parliament together with the proposal itself, and at the memorandum of reply, where they attempt to answer the questions posed in parliament. Unless the bill is substantially changed in parliament, the government’s initial stated reason for making its proposal will tell you all you need to know. If not, you can look at the debate transcripts, where one person speaks (and votes) for every party, and where the statements made by the three or so parliamentarians representing the coalition add up to parliament’s rationale.
In international law, treaties (not to mention all EU law) tends to come with recitals, which list the law maker’s considerations in enacting a certain law. While they tend to be quite vague, they are occasionally referred to by the courts. Look at art. 31 of the Vienna Convention on the Law of Treaties:
In a political system like the US Congress, however, where no one really remembers why political parties exist (or, if they should exist, why it should be these and not others), using Congressional intent as a yardstick is essentially unworkable.
Also, now that we’re talking about this, I’d like to note Justice Scalia’s argument that teleological interpretation makes lawmakers lazy, because it takes away their incentive to formulate carefully when they write a law.
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November 4, 2009, 2:11 pmSteve says:
BTW, a nice example of why it isn’t necessary or even good to force the legislature to somehow stick to just one reason for the law is this year’s Iowa gay marriage ruling. The Iowa supreme court had no difficulty going over every proposed rational basis for the law one at a time. That analysis was under “heightened scrutiny”, but as far as I’m concerned the conclusion should have been the same under rational basis review.
I think “it’s icky” is generally considered a good enough reason for a law under a rational basis standard, although not heightened scrutiny of course. Animal welfare laws are a good example.
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November 4, 2009, 2:17 pmDebauched Sloth says:
29.Soronel Haetir says:
I have found this series of posts terribly disappointing.
It’s funny you say that, because I’ve actually found the comments to to this series of posts rather disappointing. Very few people seem willing (or able?) to engage the fundamental question, which it seems to me is this: should the legislature’s authority over individuals be unfettered in the absence of a sufficiently specific enumerated right? The Framers of the Constitution and the Fourteenth Amendment seem pretty clear to have said “no” (see the 9th and 14th Amendments), but most of the people commenting on these posts seem to disagree, at least to some extent.
But despite all the Sturm und Drang, I have yet to see anyone really tackle the question of whether a legislature can ever behave so stupidly (or invidiously, or corruptly) that courts should intevene to protect even unenumerated rights. I consider that a fascinating question, in part because it is my perception that legislatures quite often act in ways that are arbitrarily stupid, indefensibly invidious, and/or very plainly corrupt.
The notion that citizens may only have recourse to the courts for protection of their autonomy when they can invoke a specifically enumerated individual right — which seems to be the essence of many if not most of the comments — is not only inconsistent with the text of the Constitution, but also 200+ years of American jurisprudence.
Absent a wholesale rejection of that jurisprudence (which I suspect most commenters are unwilling to actually endorse, no matter how much they may enjoy barking at Jeff about his selection and framing of the issues in this case), the question is whether the rational basis test is an intellectually defensible standard. Jeff says it is not, and part of what he plans to do with this case is show why it is not. That strikes me as project that anyone who dislikes intellectual dishonesty (of which rational basis review and the Supreme Court’s Commerce Clause jurisprudence are two stellar examples in my book) should at least find intriguing, perhaps even laudable.
But as I said, for whatever reason no one seems interested in engaging Jeff’s posts on that basic point. Bummer.
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November 4, 2009, 2:18 pmloki13 says:
Debauched Sloth,
I think you are setting up a nice strawman here:
The notion that citizens may only have recourse to the courts for protection of their autonomy when they can invoke a specifically enumerated individual right
Isn’t this a *democracy*? Aren’t most of the commenters arguing that our system is set up as a democracy, and that, for the most part, the majority rules? While there are certain delineated exceptions to that (enumerated rights, fundamental rights as recognized through SDP — or, if you prefer, the 9th Am., EPC), the masic premise is that the correct solution to bad legislation is to vote out the legislators.
As I have posited above, the rational behind this argument is that every piece of legislation impacts someone’s rights, somehow, and would thus be amenable to a judge striking it down. Perhaps that would be your ideal world. It’s certainly not what people expected when the Constitution was ratified.
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November 4, 2009, 2:24 pmyankee says:
But Rowes purports to be arguing that NOTA fails the rational basis test. That’s completely different from arguing that the rational basis test should be replaced with something else, or that it implicates an unenumerated right and fails heightened scrutiny.
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November 4, 2009, 2:25 pmMartinned says:
That’s why I wrote “as far as I’m concerned”. The “it’s icky” defense is how Posner “saved” the horse meat ban I quoted above.
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November 4, 2009, 2:26 pmPatHMV says:
Martinned... when I referred to European thinking, I was thinking not so much about judicial review but about the notion, which seems to me more prevalent in European political/legal thinking, that it is sufficient to protect our rights to simply enumerate them in some formal document, without much thought to the actual dispersion of powers to different components of the government. In European parliamentary systems, after all, there’s really only two branches of government, the legislative/executive and the judicial.
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November 4, 2009, 2:34 pmDebauched Sloth says:
Loke 13 says: Isn’t this a *democracy*?
Actually no. I’ve always understood that America is a constitutional republic, not a democracy. Working through what that means in practice — let’s say for a family whose child might die as a result of congressional negligence combined with knee-jerk judicial minimalism (there are other brands of judicial minimialism, of course, but in my experience knee-jerk is by far the most common) — is what I understand to be the whole point of this case.
And that’s why I’m so disappointed in the comments responding to Jeff’s posts — because I’ve seen so little effort to do that.
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November 4, 2009, 2:39 pmJay says:
I think it’s important to distinguish between a right being “unenumerated” and a right not being covered by the text of the Constitution. IJ is not arguing that judges should go outside of the Constitution. They’re arguing that the text of the Constitution commands judges, as a matter of objective law, to take seriously the claims that government is unduly restricting rights, even if those rights are not specifically enumerated. At the federal level, this comes from the combined concepts of enumerated government power and the Ninth Amendment, and at the state level, this comes from the Fourteenth Amendment, primarily through the Privileges or Immunities Clause (although of course, that provision has been forgotten and partially replaced with strange concepts like “substantive due process”).
Regarding PatHMV’s concern about judicial activism, it depends on what you think activism is. I think a good definition of activism, and one that you and I would probably agree to, is judges substituting their own personal preferences for the command of the law. But this can cut both ways: activist judges might strike down constitutional laws that they dislike, or they might uphold unconstitutional laws that they do like.
Now, if your concern is that the kind of unenumerated rights being discussed here are simply not in the Constitution, I think that’s a fair point. But that’s largely an historical and interpretive question about what the Ninth and Fourteenth Amendments (particularly Privileges or Immunities) were understood to mean. I used to share your concern about this very issue, but based on what I’ve seen in the historical sources, I’m convinced that Privileges or Immunities was actually a pretty clear concept that was understood to cover these kinds of “unenumerated” rights. Don’t take my word for it, of course, but do consider examining the literature for yourself (as already mentioned above, Randy Barnett’s Restoring the Lost Constitution is a great place to start).
For judicial conservatives who believe in a deferential role for the judiciary, the question is what is actually doing the work. Is it that a proper textualist and originalist reading of the Constitution commands this deference, or is it an independent desire for a presumption of government legitimacy in any close cases? Conservatives like Justice Scalia would have you believe that there is no tension in being an originalist minimalist, but I think that point is debatable. To put it another way, if you were convinced that the text and history commanded a more engaged role for the judiciary, what would you think then? Answer that question for yourself, and then look at the sources.
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November 4, 2009, 2:53 pmOrin Kerr says:
Debauched Sloth,
Could you do us the favor of listing the set of unenumerated rights that the Constitution protects? That way we can understand what unenumerated rights you have in mind, and we can all be on the same page when discussing the issue.
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November 4, 2009, 2:55 pmSteve says:
let’s say for a family whose child might die as a result of congressional negligence combined with knee-jerk judicial minimalism (there are other brands of judicial minimialism, of course, but in my experience knee-jerk is by far the most common) — is what I understand to be the whole point of this case.
Does the person who won’t donate their bone marrow to that child unless they get paid, knowing the child will die without a transplant, bear any culpability — or is it all the fault of Congress and those black-robed minimalist tyrants? Just curious.
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November 4, 2009, 2:58 pmMartinned says:
That’s not what you said before, in the comment I responded to. There, you were ascribing the “belief that the courts are the primary protector of our rights” to Europeans.
As for your new comment, I’d say laying down people’s rights in a formal document is certainly a start. The only one that really matters, the ECHR, has had its own court since the beginning, and that court works pretty well. (Except against Russia, which is why the lawyers are trying to figure out how to fire Russia from the treaty.)
The difference isn’t in the “formal document”, but in different ideas about the appropriate balance of power between the courts and parliament. It isn’t that Europeans don’t think about enforcement, but that they don’t want the courts overruling the people’s elected representatives every step of the way.
In Britain, the courts can give a “statement of incompatibility”, in the Netherlands, the courts dodge the problem by examining compatibility with treaties instead, in Germany, they have a special court who alone are allowed to deal with these matters, in France, they have a limited window after the vote in parliament during which time the bill can be put before the Conseil Constitutionnel, which, to make things worse (or better) consists not only of jurists but also of former presidents of the Republic. The list goes on and on. All of this is not due to a lack of attention for enforcement of rights, but design.
The fact that Montesquieu’s misunderstanding of the UK constitution gave the US such a rigid system of division of powers does not mean that that is the only way to go. Separating the executive from the legislature does little to protect the rights of citizens, but does a lot to hamper the functioning of government. (Whether that is a feature or a bug is a different story.)
The key question is the division of power between the politicians and the lawyers, where one could easily make the argument that US courts aren’t only overreaching, but also (as a consequence) overpoliticised.
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November 4, 2009, 3:01 pmloki13 says:
I apologize for using the phrase democracy (followed by example of limits on majoritarian rule, which you cut out) instead of your favored phrase. Gosh, it most feel good to a word instead of the substance of a post, right? I better put more effort in trying to reposnd to Jeff’s posts, with, like, cases and stuff. Oh, wait, I did!
I do enjoy how you phrase your objection– it’s for the children! It’s good to know, because that’s how most bad law starts. But you don’t get to the *right* being infringed. People are allowed to donate to their heart’s content– for the children (and, I guess, adults). You just can’t pay for it. Just like people can have sex– they just can’t pay for it. These may be stupid laws, but they’re not *irrational*.
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November 4, 2009, 3:07 pmPatHMV says:
“knee-jerk judicial minimalism,” Debauched Sloth? Seriously? It has become quite clear that Rowes intends to use this case not to fix one small problem with NOTA, but to enshrine some new legal doctrine.
I confess I have not spent a great deal elaborating on why exactly I think it is bad for courts to be able to toss out an act of Congress simply because they think it is the wrong policy, because I think that’s fairly obvious, frankly.
What Rowes has tried to do is build a whole jumble of different legal doctrines (scrivener’s error, use of legislative history to interpret vague statutes, “rational basis,” “unenumerated rights,” etc.) to toss out this act, but then frankly admit that he’s really trying to use the courts to enact policies he favors by giving new vigor to the “rational basis” test. I have given that precisely as much attention and effort as I think it deserves... very little.
We’re talking about social policy here, and one of the tricky things about social policy is that it can have lots and lots of both intended and unintended consequences, as well as benefits. Our system leaves it to Congress, not the courts, to weigh the benefits and consequences of particular social policies. YOU claim that the NOTA ban on sale of bone marrow means that children “might die.” But of course Congress regularly both allows and even requires policies which mean that some children might die. For example, Congress could enact safety standards for cars which would add 1000 pounds to the weight of each car, but would guarantee that any children in the car would survive a collision with an 18-wheeler. Doing so, of course, would raise the cost of cars and reduce their gas mileage. That’s a decision for CONGRESS to make. I don’t take a position, at the moment, on whether the NOTA ban on bone marrow sales should be reversed. I only assert that it is NOT the place of the courts to weigh the costs and benefits and potential consequences of that policy choice.
If I recall correctly, Rowes said in an earlier post that the ban on the sale of bone marrow has been in place since the Reagan administration... 4 Presidents ago. In all the time since then, has Congress NEVER been asked to fix this “mistake?” Either the people in favor of the sale of bone marrow have never bothered to even ask Congress to fix it, or Congress has considered, and chosen not to, adopt the minor change that Rowes is seeking to impose through judicial fiat. In fact, the Act was first adopted in 1984, and was amended in 1988 and 1990... obviously no one caught this “mistake” during those two amendments, either.
As I said before, Mr. Rowes, this mixing and matching really damages your argument. If Congress hasn’t fixed it in over 20 years, then it’s really hardly a “mistake” to my mind. If you think that Congress just flat doesn’t have the power to prohibit the sale of replaceable bodily cells, then say so directly and be done with it, and leave out all the other malarkey.
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November 4, 2009, 3:08 pmDebauched Sloth says:
49.Orin Kerr says:
Debauched Sloth,
Could you do us the favor of listing the set of unenumerated rights that the Constitution protects? That way we can understand what unenumerated rights you have in mind, and we can all be on the same page when discussing the issue.
Unfortunately, I can’t. But I’m in good company there, including Coke, Blackstone, Madison, Jefferson, John Bingham, and the rest of the Reconstruction Republicans in 39th Congress who made a valiant but ultimately futile attempt (due to the Supreme Court’s activism in Slaughter-House) to terminate the culture of tyranny and oppression that plagued the South following the Civil War and which eventually blossomed into Jim Crow while the courts stood minimalistically by.
As you know, few questions of constitutional law have been more widely or thoughtfully written about than the subject of unenumerated rights, and I’d be happy to direct you to some of that literature if you’d like. If you promise to read it.
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November 4, 2009, 3:15 pmOrin Kerr says:
Dabuached,
Ah, so you don’t believe in unenumerated rights: You believe in unenumerable rights. But of course, that’s what I believe in, too, at least for purposes of this comment thread, because I need this doctrine to support my view that Jeff Rowes is unconstitutional.
I realize that as a Sloth, you might not have read enough Blackstone, Madison, or Dr. Seuss to see why Jeff Rowes is obviously unconstitutional under the doctrine of unenumerable rights. Alas! Sadly, this is all-too-common among sloths. But if you want, I’d be happy to direct you to some good sources — starting, of course, with the classic “The Cat in the Hat.”
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November 4, 2009, 3:25 pmMartinned says:
No offense, but that’s cheating. You asked him to list them all, and the point of the 9th amendment is that that is impossible or at least undesireable. I’m sure he could name a few, like the right to privacy already mentioned several times above.
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November 4, 2009, 3:30 pmEinhverfr says:
A couple things from the article:
I didn’t think either of these involved unenumerated rights. Rather I thought that they involved unacceptable infringements on the part of the government against a “natural” (in the eyes of the Constitution) right to liberty and life. In essence, “rational basis” is a test regarding the level of process due in order to uphold most most laws.
If Congress were to pass a law tomorrow making it a crime to resuscitate anyone with the first name of Jeff (for example in order to save health care expenses), this might be seen as an Unconstitutional death sentence even if it is not, properly speaking, a Bill of Attainder.
Also the government doesn’t always win on rational basis cases. It is just a low bar to uphold the law which, presumably, the citizens and their representatives want.
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November 4, 2009, 3:31 pmShelbyC says:
Well, according to the Constitution, isn’t it anything outside the proper scope of “law”, or maybe anything “[un]necessary” or “[im]proper”? It’d be nice if the constitution were clearer about what things like that mean, but hey, isn’t that what judges are for?
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November 4, 2009, 3:34 pmPatHMV says:
Debauched Sloth, the failure of the courts to stop Jim Crow laws had nothing to do with unenumerated rights and everything to do with the court’s failure to enforce actual, enumerated rights. Plessy v. Ferguson,a politically-inspired monstrosity, failed by looking at a hypothetical “equality of result” rather than the equal protection of the law which is mandated by the 14th Amendment. One need not find an unenumerated right to ride a train to condemn Plessy, one need only find that the legislature mandated different treatment based on race, and this differing legal treatment, regardless of the hypothetically “equal” nature of the physical accommodations, was a failure to guarantee all individuals the equal protection of the laws based only on skin color.
Moreover, Congress was expressly given the power to enforce the 13th, 14th, and 15th Amendments by legislation. Sadly, rather than rely on that express grant of power, the courts have tended to make up bizarre doctrines like “substantive due process” to justify Congressional interventions in that area.
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November 4, 2009, 3:35 pmJay says:
Orin Kerr says:
Debauched Sloth,
Could you do us the favor of listing the set of unenumerated rights that the Constitution protects? That way we can understand what unenumerated rights you have in mind, and we can all be on the same page when discussing the issue.
Well, a good place to start would be to look at Justice Bushrod Washington’s statement in Corfield v. Coryell, which the drafters of the Fourteenth Amendment relied on and quoted frequently:
“What these fundamental principles are [the privileges and immunities of citizens], it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.”
Restraints on life-saving medical procedures would pretty clearly seem to implicate the right to “pursue and obtain . . . safety.” Now, it was always understood that rights could be regulated (which used to mean “be made regular,” not “prohibited,” as it does today). But if the government is going to justify a facial imposition on the exercise of these liberty rights, it bears the burden of justifying the imposition as necessary.
I’m not claiming that the above quoted passage is the definitive statement on enumerated rights. It’s just an example. But there is remarkable consistency amongst the Framers (both of the Ninth and Fourteenth Amendments) about what these rights entailed. They almost uniformly mention preserving life and liberty, acquiring, possessing, and protecting real and personal property, making binding contracts, and pursuing happiness and safety.
Now, is the practical application of these doctrines complicated? Absolutely. Will reasonable people disagree about what is protected? Of course. But that is by no means unique to unenumerated rights. What does freedom of speech protect? What is the free exercise of religion? What is a reasonable search and seizure? We would never say that it is “improper” for courts to answer those questions, just because the answers aren’t facially obvious. The Constitution tells courts to answer those questions. Why should we require otherwise for the Ninth and Fourteenth Amendments? A minimalist judge might claim he is acting with “humility,” but really, he is imposing his own view of judicial deference on the Constitution.
NOTE: I am not claiming that this particular argument is the theory of IJ’s case. IJ is in the awkward position of having to find ways to argue for unenumerated rights when the Court has all but rejected the concept (except of course, when it comes to abortion and sodomy). This is why they have to rely on a broad reading of equal protection and “substantive due process.” Nevertheless, I don’t think it’s illegitimate to push for liberty-protecting decisions under those doctrines when this kind of liberty was supposed to be protected all along.
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November 4, 2009, 3:45 pmOrin Kerr says:
Martinned:
I would have been delighted by a list of just most of the unenumerated rights, or even a bare majority of them. On the other hand, if Sloth’s view is that it is actually impossible to ever list the full set of unenumerated rights, then I think it is actually quite fair to say that this signals a belief in unenumerable rights, not unenumerated rights.
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November 4, 2009, 3:47 pmDebauched Sloth says:
55.Orin Kerr says:
Dabuached,
Ah, so you don’t want unenumerated rights: You want unenumerable rights.
Not quite. What I’m saying is that I agree with Madison, Jefferson, Bingham, and countless others who recognize that is impossible to provide a complete and comprehensive list of rights, in part because legislatures are so darned persistent and ingenious at avoiding textual limits on their authority (cf. Lopez, Raich).
One could certainly argue that courts shouldn’t enforce any unenumerated rights at all, but as I noted above, that would require overturning centuries of precedent, and I’ve never seen anyone willing to actually go that far. (Are you?)
If the choice is a stark one between an omnipotent government or an overly constraining judiciary (which I think it basically is), then yes, I prefer an overly constraining judiciary. More importantly, I have formed the very strong belief after much reading (including books with no pictures in them!) that the people who wrote and ratified the Constitution, the Bill of Rights, and the Fourteenth Amendment felt that way too, and that the unbroken line of Supreme Court precedent recognizing (though not always meaningfully enforcing) unenumerated rights is also correct, though badly in need of thoughtful, originalist adjustment. (Cf. The Privileges or Immunities Clause of the 14th Amendment.)
I realize we may disagree on that (or not — I still can’t tell), but it’s sure nice to live in a country where we can do so without risking a jail sentence.
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November 4, 2009, 3:51 pmloki13 says:
Wow. Imagine putting all that effort, and citing actual legal scholarship, only to show that you can’t even bother to correctly cite what rights the court has found.
Lawrence found the particularized right to “sodomy”? Really? Wouln’t it more fair (and closer to correct) to say that they found the right to... how did Justice Washington say it... allow for the enjoyment of life and liberty?
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November 4, 2009, 3:55 pmPatHMV says:
“it bears the burden of justifying the imposition as necessary.” There’s the difficulty with the “unenumerated rights,” Jay. Who gets to decide what is “necessary?” If the courts get to decide it, then they enlarge their role and decrease our ability to make difficult and controversial policy decisions ourselves. Plus, if the court can make these types of policy vetoes only on Constitutional grounds, then that makes it almost impossible for the public to reverse, and to the extent that the policy enjoys a fair amount of public support, the effort to reverse the court’s choice necessarily undermines the view of the courts as neutral arbiters.
Moreover, there is the exceedingly practical difficulty posed by a case like this one. Mr. Rowes assures us that his clients do NOT want a whole-sale open market for bone marrow. They want only a nice scholarship program for the marrow donors. Congress, as a legislative body, would have the power to provide for such programs. But if the court tosses out the Congressional ban on bone marrow sales, the court has no way to impose alternative policy limitations in its place. The court cannot possibly say “the ban on actual sales by this language is ok, but the ban, by the same language, of a non-profit scholarship program meeting criteria X, Y, and Z is unconstitutional.” No, the court can only either read “bone marrow” out of NOTA, or it can uphold the law as written. Those are pretty much its only options. Thus, if it does what Mr. Rowes wants, it will be legal to sell bone marrow to the highest bidder. As I noted yesterday, I foresee all the for-profit plasma centers coming up with their own, commercial, national registry, relying on their extensive supply of college students so hard up for drinking money that they sell their plasma weekly.
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November 4, 2009, 3:58 pmShelbyC says:
Wasn’t the Bill of Rights a list of a bare majority of unenumerated rights, until it was enumerated? As was the right not to be enslaved, the right of women to vote, etc?
And imagine that the constitution disappeared, poof, and they asked you to write a new one. Could you list all the rights of man that the government can’t morally infringe? If not, then the full panoply of rights is unenumerable.
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November 4, 2009, 4:00 pmJay says:
Lawrence found the particularized right to “sodomy”? Really? Wouln’t it more fair (and closer to correct) to say that they found the right to... how did Justice Washington say it... allow for the enjoyment of life and liberty?
So, I apologize if my tone was unclear. I was just being snarky about the hand-picking of “fundamental” rights that the Court has decided to announce in the past half-century. I obviously think that general rights of reproductive liberty and private sexual conduct among consenting adults are well within the enjoyment of life and liberty (although I do think that abortion is less clear, because it seems to require a determination about where life begins, which is probably not commanded by even a “libertarian” conception of the Constitution).
My point is just that it’s disingenuous for the Court to say that homosexual sodomy, which traditionally had been criminalized, is part of a fundamental right, but the right to pay someone to provide voluntary, safe, and life-saving medical treatment is not. I agree that IJ has a tough case before them given the present state of the law. But that just shows how absurd the present state of constitutional law really is.
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November 4, 2009, 4:07 pmanon says:
Courts do this all. the. time. They’re called as-applied constitutional challenges. See, e.g., FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) (holding that the general ban on corporate express advocacy could not constitutionally apply to nonprofit corporations that accept no for-profit corporate donations).
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November 4, 2009, 4:11 pmOrin Kerr says:
ShelbyC:
You seem to be assuming that I would try to write a constitution that adopts natural law theory.
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November 4, 2009, 4:14 pmShelbyC says:
I’m not sure I understand what you mean by “an unenumerated right in the Constitution.” There are fundamental human rights, some of which are enumerated in the constitution. The constitution explicitly deprives Congress of the power to violate these rights. Other rights aren’t mentioned in the constitution, but could be subject to judicial review, depending on the interpretation of other parts of the constitution, such as the necessary and proper clause or the due process (of law) clause. IANAL, but my understanding is that the courts have interpreted the due process clause to make certain unumerated rights subject to judicial review by finding certain things outside the scope of law. (Substantive Due Process)
As for the ham sandwich, the process of applying reason to the world that led the founders to discover and enumerate the right to freedom of speech, and that leads me to believe the right to, say, private sexual activity, is an unumerated fundamental human right, has not led me to conclude that my eating a ham sandwich violates any such rights.
But hey, I’m not always the best at applying reason to the world, so maybe I’m wrong. :-).
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November 4, 2009, 4:24 pmShelbyC says:
OK, I’ll change the hypo. Imagine they asked you to write a new one that applies natural law theory... :-).
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November 4, 2009, 4:26 pmJay says:
PatHMV says:
“it bears the burden of justifying the imposition as necessary.” There’s the difficulty with the “unenumerated rights,” Jay. Who gets to decide what is “necessary?” If the courts get to decide it, then they enlarge their role and decrease our ability to make difficult and controversial policy decisions ourselves.
So, I agree that this is a challenging question. This is precisely why I was such a reluctant convert to the “libertarian” constitutional position, if it’s fair to call it that. But I’ll offer two answers. First, this is what courts do all the time with rights that we take for granted. Freedom of speech is a good example. Generally, the government may only directly restrict free speech when the restriction is narrowly tailored to a compelling government interest. But what counts as compelling? How important, and by what standard? Sure, we might say that this should just be a democratic, legislative judgment, but this basically amounts to a repudiation of all judicial review (at least for individual rights). Why do we feel comfortable having courts adjudicate these questions in the context of free speech (or racial classifications, or unreasonable searches and seizures, or “congruence and proportionality” for Section 5 of the 14th Amendment)?
But of course, that still leaves the substantive question, which is more complicated. The best I can say here is that the standard for “necessary” has to do with “necessary to protect the lives and liberties of other citizens.” This is what is behind the idea of “regulating” rights, in the sense of making them regular. Certain forms of government “regulation” are necessary to define rights in ways that the rights of citizens do not conflict. Take free speech again. I think incitement to violence is an area where it makes sense for the government to “restrict” speech. It’s not just that preventing incitement to violence is really important; it’s that it directly threatens the rights of others. Stopping the spread of communism, however, might be really important, but this should not justify the government restricting the advocacy of communist ideology, because the mere spread of ideas does not hurt anyone. However, once I joined an active network working to overthrow the government, this could then be restricted.
Again, I’m not saying the answers to all of these questions are obvious. But we expect the Court to answer them in other contexts. Furthermore, I agree with Debauched Sloth: If the choice is between a government that violates too much liberty and one that protects too much liberty, I’ll take the latter every day of the week and twice on Sunday.
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November 4, 2009, 4:49 pmMartinned says:
... which would be bad, because?
Sure, the rights protected by the 9th amendment can be described as unenumerable, in that it isn’t a fixed list. If it were, the framers might as well have made the Bill of Rights longer to include them all. Instead, the 9th hearkens back to the common law rights that came before, rights whose number isn’t fixed, and where new rights can occasionally be recognised, just like old rights can become obsolete. (3rd am anyone?)
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November 4, 2009, 4:51 pmPatHMV says:
Anon... I didn’t agree with the Court when it did that in FEC v. Mass. Citizens for Life, either. It smacks of policy compromise, rather than actual analysis of constitutional requirements.
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November 4, 2009, 5:05 pmloki13 says:
Jay,
I understand your position that just because line-drawing is hard, it doesn’t mean it cannot be done. What I think most people (including this anonymous internet commenter/Norse God) have a problem with is this:
When the government (assume, arguendo, we are only talking about the Federal Government and we can bypass incorporation for now) passes a law that directly impacts some right that is known (either enumerated or a fundamental unenumerated right), it must fall within certain parameters. There has to be a damn good reason for it (to move away from the lawyerin’ terminology for a second).
This proposal is different. Every law passed impacts people at some point. Therefore, every law, in some way, violates some sort of “unenumerated right”. This gives the judiciary a veto over every single piece of legislation passed. This is a government by the judiciary (similar to Iran), not anything that was intended when the Constitution was ratified.
This, then, becomes an argument based on policy preferences and devoid of anything that exists in our current jurisprudence or, for that matter, in the text or the original expected application of the Consitution (intent). You want less laws; you don’t believe you can elect a Congress that will get rid of laws; therefore, you will use the judiciary to accomplish the political goals that you cannot achieve through democratic means. I happen to think that this is poorly-thought out (as most judges are not libertarians, and will be much more likely to strike down legislation that you might happen to agree with than do a cost-benefit analysis a la Easterbrook), but it is what it is.
Even worse, this counteracts the useful impact of conservatives on the judiciary. There is much less sanction for “judicial activism” than there was. This would open the floodgates again. Think of a new Warren Court (with the lower courts stacked too), one that views all legislation in terms of “helping out the poor” and strikes down legislation that doesn’t (because it isn’t rational!) while letting the rest slide. This is a can of worms I don’t want to see opened.
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November 4, 2009, 5:06 pmOrin Kerr says:
Okay, Martinned. I hereby recognize a constitutional right to force you to agree with me. It is an unenumerated right, but I have found it; I see it quite clearly now. So long as I see it, you must agree with me. (I realize that this might not meet your own view of what unenumerated rights are, but I know deep down I am right and you are wrong, so you’re stuck with it. sorry!)
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November 4, 2009, 5:21 pmPatHMV says:
Jay, of course there are always difficulties using language to proscribe human behavior or establish judicial philosophies. However, there’s a big difference between a test like “narrowly tailored to achieving a compelling governmental interest” and “rational basis.” The former provides significant signaling to the courts and Congress that its power in this area is very limited, that the right in question can only be touched in very limited circumstances, and with very good reasons. It’s not mathematically precise, but it gives at least some decent guidance about how rare Congressional action interfering with that right should be.
But “rational basis” provides no guidance at all, really. It tells the court that it can throw out an act of Congress if the court believes that Congress could not have a “rational” basis for enacting it. In practice, however, it gives no guidance at all to the courts, the legislature, or the people. If in fact it were only used in circumstances where there is literally no reasonable basis at all for the legislation, that it is “irrational” under a very strict sense of the term, that might be ok. In reality, however, it has not been so limited, and its advocacy here by Jeff Rowes is certainly not so limited. Instead, it means “we disagree with the reasons” or “we just don’t think that Congress weighed the costs and benefits properly.”
Our host, Prof. Volokh, takes the position, as I understand it, that there is a Constitutional right of self defense, and that right is sufficiently broad that it encompasses the right to purchase organs from willing sellers. I disagree with him. But it is a consistent Constitutional view, and adopting it would not fundamentally alter our system of jurisprudence. The same cannot be said of Mr. Rowes’ proposal.
When you start looking at it from a “rights” framework, things get pretty difficult, because pretty much every exercise of one’s rights affects other people to some extent. Your right to build a house without regard to fire codes increases your neighbor’s risk of losing his house to a fire started by your faulty wiring. Your right to smoke on a public street forces me to either avoid a wide area around you or to inhale cigarette smoke. Your right to buy and sell bone marrow will force society to make difficult choices as well... such as the story a few years ago of the German woman who was denied unemployment insurance when she refused work as a prostitute (it wasn’t true, but the hypothetical remains valid).
Our Founders decided not to rely on a laundry list of “rights” to protect our liberties. Instead, they created a system of government structured in a manner that seemed to them most likely to effect their (and our, their descendants’) safety and happiness.
When Randy Barnett proposed earlier this year a series of amendments to the Constitution which did nothing more than add some more “rights” and try to impose a requirement for textualism in constitutional interpretation, without addressing the structural political forces which have led us to this point, I was beyond distressed.
If Congress has become institutionally devoted to “big government,” then we need to make some institutional, structural changes to combat that. You can run from the people, but you can’t ultimately hide. The only way that libertarian views, such as this argument against the ban on marrow sales, can prevail over the long term is to convince the public that it is the right way to go. Winning in court ultimately only buys you a little time. Rowes is no different in principal from the advocates for same sex marriage who sought to impose that rule through judicial fiat, rather than through democratic action.
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November 4, 2009, 5:29 pmJay says:
loki13 says:
This, then, becomes an argument based on policy preferences and devoid of anything that exists in our current jurisprudence or, for that matter, in the text or the original expected application of the Constitution.
I guess then that I would be curious about what you think the Ninth and Fourteenth Amendment actually cover. What is your textual and historical interpretation of “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...”? On its face, this seems like a pretty powerful statement, and the debate surrounding the passage of the Fourteenth Amendment seems to support the idea that this protected a wide range of unenumerated rights, at least including preserving life and liberty, acquiring, possessing, and protecting real and personal property, making binding contracts, and pursuing happiness and safety, as well as the original Bill of Rights.
Like I said earlier, don’t take my word for it — look at the sources yourself, and then decide if you think I’m right. But assuming this were true, wouldn’t this require a textualist/originalist to support the basic view I have been talking about? You seem to acknowledge that at least some fundamental unenumerated rights do exist. All I’m suggesting is that the Ninth and Fourteenth Amendments cover a lot more ground than the Court has previously acknowledged.
I don’t think that the system I’m advocating would give the judiciary a veto over every law, any more than our current system already does. After all, any court could find any law unconstitutional if it was just determined to do whatever it wanted to do. I’m just suggesting a different standard for judges to apply when considering the kinds of challenges they always hear. Of course this power could be abused, but that’s true under any level of deference, and there are ways to address those concerns.
I’m also not particularly concerned about “opening the floodgates” of Warren Court-era judicial tinkering, because the change that I’m suggesting is a change in favor of supporting constitutional text and history, not “evolving” past it. Even though modern judicial conservatives tend to advocate both judicial objectivity (that is, judges should say what the law is, not what it should be) and judicial deference, there is just no necessary connection between these two ideas. I think that argument would be easy enough to make, even to a populace that has (thankfully) become skeptical of judicial activism.
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November 4, 2009, 5:36 pmanon. says:
This response, along with your other comments, reveals that your opinions about what constitutes appropriate constitutional adjudication are 1) far removed from the way constitutional adjudication is actually done, and 2) far removed from the opinions of mainstream judicial minimalists.
What really seems to be bothering you is not IJ’s claims, but rather that current constitutional-law doctrine permits litigants to go into court and say, “no reasonable person could believe that applying this law to my personal situation advances any legitimate government interest, therefore, it can’t constitutionally apply to me.” Well, too bad–those are the rules for litigating unenumerated-rights cases. I invite you to explain why IJ should lose this case under those rules–i.e., provide a rational argument for why prohibiting a nonprofit from giving college scholarships to bone-marrow donors advances any legitimate interest–rather than complain that IJ’s claim is foreclosed by your personal theory of constitutional interpretation.
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November 4, 2009, 5:54 pmDjDiverDan says:
Ok, I now get that what you are really talking about is a 9th Amendment “unenumerated rights” slash “fundamental liberty interest” substantive due process type of argument — BTW, I certainly hope you can get to the crux of your argument a WHOLE LOT FASTER in any Brief you file in Court than you have in these posts, or you are going to completely lose even the most sympathetic judge — but for heaven’s sake, why on earth would you actually ASK for the Court to apply a “rational basis” test to your claim? As many posters have pointed out, quite accurately I believe, “rational basis” is almost never a real legal test, its what the Court says it is applying as a prelude to upholding the legislation. While some posters may be correct that a Court will never go down the route to a test that will allow free markets in human organs or tissue (though I frankly don’t see anything inherently horrible about such a free market, as long as there are sufficient safeguards to insure that the sales are truly voluntary — no kidnapping victims to rip out a kidney), why not at least press for the “undue burden” test? I’ve always been of the opinion that litigation is a lot like negotiation — you can’t get what you don’t ask for. So, again, if you are simply pressing the whole “rational basis” argument, to the exclusion of much a stronger claim, i.e., that the right to get this type of medical treatment, a bone marrow transplant, is a fundamental right which is unduly burdened by the fact that the prohibition on compensating donors artificially restricts the availability of marrow donors for transplant, in the hope (utterly vain, IMHO) that a Court will be willing to turn “rational basis” into a genuine legal test, rather than vapid rationalization to uphold legislative judgment, you are not serving your client well.
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November 4, 2009, 6:01 pmJay says:
PatHMV says:
But “rational basis” provides no guidance at all, really. It tells the court that it can throw out an act of Congress if the court believes that Congress could not have a “rational” basis for enacting it. In practice, however, it gives no guidance at all to the courts, the legislature, or the people.
So, I definitely agree with you here. I think the “rational basis” test is the worst of both worlds — it tells people that all government action is subject to at least some kind of review, when in fact, the standard is almost uniformly deferential (except of course, when it suddenly isn’t, without any explanation why — See Lawrence v. Texas, Cleburne v. Cleburne Living Center, etc.). What I’m suggesting is that a stricter standard should apply to all governmental deprivations of liberty, not just a hand-picked few, and that this is precisely what the Ninth and Fourteenth Amendments were designed to do.
I also agree with you that victories in court are by no means sufficient. No Constitution will be effective if the people have forsaken its fundamental values. But I don’t think people really have given up on the idea of a broad conception of liberty — the problem is that they’re led to believe that governments have legitimate reasons for their actions when the reality is that so much government action is just the result of special interest dealing. If the government were actually required to defend its laws, I think you would see people take more seriously “libertarian” conceptions of government. (It’s also worth noting that IJ usually engages in massive public relations campaigns for all of their cases, so they’re well aware that legal victories are necessary but not sufficient.)
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November 4, 2009, 6:06 pmMartinned says:
I’m not sure why I keep getting these replies from you. Why do you keep implying that I’m proposing some kind of ipse dixit approach to unenumerated rights? The Courts, most importantly the Supreme Court, can recognise new rights, working slowly, using the generally recognised methods of analogy and extension, broadening or narrowing existing precedents, just like they already do with the enumerated rights. This couldn’t be further from ipse dixit.
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November 4, 2009, 6:10 pmyankee says:
Just wondering, Orin, can you enumerate all the Privileges and Immunities of Citizens in the several States, or all of the the privileges or immunities of citizens of the United States?
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November 4, 2009, 6:13 pmOff Kilter says:
OK: Okay, Martinned. I hereby recognize a constitutional right to force you to agree with me. It is an unenumerated right, but I have found it; I see it quite clearly now. So long as I see it, you must agree with me. (I realize that this might not meet your own view of what unenumerated rights are, but I know deep down I am right and you are wrong, so you’re stuck with it. sorry!)
Wow. I’m beginning to be sorry I didn’t go to law school. I had wrongly assumed that actual argumentation was required to win a legal argument. Orin shows it is much easier than that. OK has clearly figured out that recognition of unenumerated rights is equivalent to recognition of anything claimed to be an unenumerated right. It’s not as if lawyers ever have to argue for the correctness of their positions, after all...
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November 4, 2009, 6:22 pmSuperSkeptic says:
Madison presciently warned against enumerating rights because he foresaw what has become a cornerstone of the judicial-minimalist worldview: the argument that the only rights we have are enumerated ones.
I was under the impression that this was Hamilton’s counter-argument to the anti-federalists’ insistence upon the Bill of Rights.
DjDiverDan mostly embodies my position again today. You are arguing for the ideal libertarian judiciary, but that’s not reality.
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November 4, 2009, 7:21 pmhilzoy fangirl says:
Jeff Rowes is not state action.
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November 4, 2009, 7:45 pmPatHMV says:
anon, Jeff Rowes himself acknowledges that the approach he advocates is looked upon with significant skepticism by what he calls “conservative leaning judicial minimalists,” by which I think he means the approach currently practiced or advocated by most conservative legal jurists and scholars, from Justice Scalia on down (note Rowes’ specific criticism of Raich, in which Justice Scalia voted with the majority).
Jay, I’m not opposed to having some political body to require that kind of justification from Congress, but I don’t think that courts are at all the way to do it. I wish that Barnett, instead of proposing his new Bill of Rights, would have given more structural thought to the problems. There are a number of structural changes which should be considered. For example, we could create a third house of Congress, one which is empowered only to set the rules of procedure for the House and Senate. It could be a very large body, elected every other year, perhaps in the off years, meeting only a couple of times a year to make it harder to buy off with lobbying dollars. Perhaps the third house could have veto power, but no ability to propose legislation. You could, conceivably, give it authority to subpoena members of the House and Senate to provide the sort of justification you would like.
But of course the “interest group” complaint really has no bearing on this particular piece of legislation; I really doubt that some high-paid lobbyist managed to get “bone marrow” inserted at the very last minute before final passage of NOTA.
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November 4, 2009, 7:50 pmShelbyC says:
I don’t believe you. I think you’re making it up.
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November 4, 2009, 8:24 pmreadery says:
I think it’s irrational that the government is spending billions of dollars to stimulate the economy out and I’m no getting any of it. Any rational person would immediately see I’m in great need of economic stimulation. And I think my salary is irrationally low.
Who do I sue?
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November 4, 2009, 8:25 pmanon. says:
That’s totally nonresponsive to my last comment. Your comments reveal that you don’t think courts should grant as-applied exceptions to laws. That’s fine, but there is not a single member of the Supreme Court who agrees with you. Courts can and do grant as-applied exemptions to laws. So the question is: are the plaintiffs in this case entitled to such an exemption? And the test that all nine justices of the Supreme Court agree applies to answering that question is whether a rational person could believe that prohibiting the plaintiffs from giving college scholarships to bone-marrow donors advances a legitimate government interest.
So if you think IJ should lose, apply that test–explain to me how prohibiting this specific scholarship plan advances a legitimate government interest.
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November 4, 2009, 8:30 pmMartinned says:
For the former you don’t have standing, and for the latter: your boss?
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November 4, 2009, 8:41 pmPatHMV says:
Anon... I’m not challenging the idea that laws can be applied in an unconstitutional manner... but only by finding that Congress had no power to ban the particular act that the law is being applied against. And the burden is not, in fact, on those defending the constitutionality of Congressional action to justify it. It is, by very well accepted precedent, presumed to be constitutional. It doesn’t infringe on any suspect class. It is IJ’s burden to prove its unconstitutionality, and so far they are doing a seriously piss-poor job.
Technically, yes, the court could conceivably declare simply that enforcement of the ban on organ sales against this particular defendant in this specific set of facts would be unconstitutional, and then leave it to the next case to determine whether actually selling the bone marrow would also be unconstitutional. But they most certainly cannot simply say “we will approve limited bone marrow sales under the following conditions, and here are detailed regulations which will govern the program.”
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November 4, 2009, 9:36 pmanon. says:
I can only assume at this point that you’re studiously avoiding answering my question because you cannot, in fact, articulate a single conceivable explanation for how prohibiting moremarrowdonors.org from giving college scholarships to bone-marrow donors advances a legitimate government interest. (That makes two of us.)
But if I’m wrong, please, provide me with an explanation for how prohibiting this specific scholarship plan advances a legitimate government interest. Under the rational-basis test, you only have to give me one to win (but it has to comply with the laws of the known universe; “this scholarship program will cause an alien invasion” won’t cut it).
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November 4, 2009, 10:25 pmOrin Kerr says:
Martinned:
I am just as frustrated as you are, Martinned. You are proposing to give the courts a blank check; it is a power to recognize any rights a couple of guys who have been Senate confirmed feel like recognizing, and then then to impose it on everyone in the United States. And yet when I point out some of the obvious problems with this — most obviously, that limitless power can be abused — you just posit that courts would not abuse this power. I suppose if you have such deep faith in people who have been confirmed by the U.S. Senate, there really is no need to limit those platonic guardians. But it strikes me as a very foreign and naive way to understand the United States judicial system.
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November 4, 2009, 10:31 pmOrin Kerr says:
Hilzoy fangirl: “Jeff Rowes is not state action.”
You’re assuming that the not-yet-discovered rights in the constitution must only apply to the state. But how do you know how those not-yet-discovered rights will apply?
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November 4, 2009, 10:33 pmanon. says:
I’ll open up my previous question to you, too, Prof. Kerr.
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November 4, 2009, 10:50 pmloki13 says:
I can only assume at this point that you’re studiously avoiding answering my question because you cannot, in fact, articulate a single conceivable explanation for how prohibiting moremarrowdonors.org from giving college scholarships to bone-marrow donors advances a legitimate government interest. (That makes two of us.)
But if I’m wrong, please, provide me with an explanation for how prohibiting this specific scholarship plan advances a legitimate government interest. Under the rational-basis test, you only have to give me one to win (but it has to comply with the laws of the known universe; “this scholarship program will cause an alien invasion” won’t cut it).
Ah.... I see! So, anon, you are arguing that not only must a law be rational in general, but it also must be rational as applied to every single person.
So, in order to get a driver’s license (say) you have to be 16. We can talk about whether that is a rational line-drawing, but under your “as applied” rational basis standard, a state would have to show that every single person under 16 should not get a driver’s license?
Truly, the mind boggles. I do like your proposal– imagine if there was some body empowered to weigh the pros and cons of policy decisions and act upon them. Perhaps such a body could be elected? Of course, it will be difficult considering the body would have to judge how their decision affects every single person, and cannot make laws for, oh, the general welfare.
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November 4, 2009, 10:53 pmMartinned says:
Fair enough, but what you’re describing is a problem of all judicial review. There’s nothing very different here depending on whether we’re talking about enumerated or unenumberated rights. Where did Miranda come from? Why isn’t obscenity protected speech? Where did the Supremes get the right to narrow the search incident to arrest exception, after having made it up out of whole cloth in the first place?
The Bill of Rights only enumerates rights in very vague language, so no one can reasonably insist that there is no need for (common law method) judicial interpretation of the provisions. I’m not sure why it is preferable for Scalia to find a general right to self-defense in the 2nd amendment, which only talks about the militia, instead of in the 5th or 9th where such a natural right seems to belong.
Also, as I already wrote above, the question of finding unenumerated rights is entirely distinct from questions of the appropriate level of judicial activism and/or the level of scrutiny that should come with these rights. As I wrote waaay up-thread, I’d say that the level of scrutiny should generally be proportionate to the precision with which a certain right is defined. Since unenumerated rights will normally be quite vague, one would expect them to come with low levels of scrutiny. (i.e. rational basis review) Personally, I favour a relatively modest court, who only rarely declare laws unconstitutional. From a policy POV, I certainly wouldn’t want them to give Jeff what he wants. (From a legal POV, my sense is that he doesn’t have a case, either.) None of that means that we should just ignore the plain language of the 9th amendment, though.
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November 4, 2009, 10:54 pmMartinned says:
Cool! Let’s talk about constitutional torts, that’s always fun.
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November 4, 2009, 10:57 pmloki13 says:
What, you wanna Bivens me? That’s so 1983, dude!
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November 4, 2009, 11:15 pmRJM says:
“Similarly we recognize that the constitutionality of a statute, valid on its face, may be assailed by proof of facts tending to show that the statute as applied to a particular
article is without support in reason because the article, although within the prohibited class, is so different from others of the class as to be without the reason for the prohibition . . . though the effect of such proof depends on the relevant circumstances of each case, as, for example, the administrative difficulty of excluding the article from the regulated class.”
That, of course, is a quotation from the radically Lochnerian
Supreme Court decision in Carolene Products. So, loki, you can feel free to scoff at anon’s statement of the law, but (to the extent you put any weight on what the Supreme Court says) he’s not actually asserting anything controversial. The mind does, indeed, boggle.
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November 4, 2009, 11:16 pmloki13 says:
RJM,
Wow, you are so wonderful at making this a teachable moment. The concept that a court might look at a particular case (or controversy?) is baffling to me. I had no idea that there were as-applied challenges. Are there facial challenges too?
While we are at the teachable moment stage, RJM, please explain to me why a person, who is 15 years old with perfect reflexes and has been privately driving for years (on private roads) cannot get a drivers license in his as-applied challenge. I need to be edumacated in these intricacies. I just cannot fathom how this whole “court thingy” works.
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November 4, 2009, 11:28 pmOrin Kerr says:
Martinned,
The concept of a written constitution is that the written constitution cabins discretion. I assume you believe this is false, and that a written and unwritten constitution are the same; therefore, in your view, “There’s nothing very different here depending on whether we’re talking about enumerated or unenumerated rights.” I disagree on that point, and it seems that is our core disagreement (or at least one of our several core disagreements).
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November 4, 2009, 11:47 pmreadery says:
Worse. Legislators can be voted out of office.
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November 5, 2009, 1:14 amyankee says:
Well, part of the problem is that the written constitution indicates that there are unenumerated rights in several places: the Privilege and Immunities Clause, the Privileges or Immunities Clause, and the Ninth Amendment. Perhaps the Constitution would be better if it didn’t have those clauses, but it does. Your approach is also rather radical, since it would require overturning all the cases protecting things like the unenumerated right to equal protection of the laws as against the federal government.
I would add that the history of American constitutional jurisprudence does seem to indicate that the written constitution doesn’t do a lot to cabin the Supreme Court’s discretion. We have a bunch of enumerated rights, but that hasn’t stopped the court from finding unenumerated ones; nor has the enumeration stopped it from radically shifting its interpretation of what the enumerated rights mean. We have a list of enumerated Congressional powers, but that hasn’t prevented the Supreme Court from finding a de facto plenary legislative power, provided that the statute includes some pieties about interstate commerce.
In practice, the Court’s discretion is cabined by means other than the written Constitution: its power is entirely dependent on its legitimacy with the other branches of government and with public. If it were to lose that legitimacy, its power could be eviscerated by means such as impeachment, court-packing, restriction of jurisdiction, or flat-out refusal to obey its decisions.
The written Constitution does affect how people view the Supreme Court’s decisions, and thus indirectly affects the Court’s legitimacy, and this is important. It is, however, a very different story from “enumerated rights = narrowly cabined discretion, unenumerated rights = unlimited discretion.”
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November 5, 2009, 1:30 amDavid Nieporent says:
No, it wouldn’t. You completely missed his point. While Lawrence spoke in vague and general terms (the “sweet mystery of life”), it clearly didn’t mean it generally; you’d be laughed out of court if you tried to argue, e.g., that it recognized a constitutional right to use cocaine. It meant sex. Sex is the only area where the post-Lochner court has ever recognized some general right to the enjoyment of life and liberty.
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November 5, 2009, 5:42 amJay says:
yankee says:
Well, part of the problem is that the written constitution indicates that there are unenumerated rights in several places: the Privilege and Immunities Clause, the Privileges or Immunities Clause, and the Ninth Amendment. Perhaps the Constitution would be better if it didn’t have those clauses, but it does.
I completely agree. I would greatly appreciate hearing what Orin Kerr, or anyone else skeptical of unenumerated rights, thinks these provisions of the Constitution actually mean. To my knowledge, no one of that perspective has yet to answer this question. This is what I mean when I say that judicial conservatives have to decide what is actually doing the work in their jurisprudence: textualism/originalism or an independent desire for judicial deference — because there seems to be a pretty strong argument that the text and history of the Constitution command judges to do exactly the sort of thing that judicial conservatives find so undesirable.
I should also note that allowing judges to protect unenumerated rights does not allow them to find “whatever they want.” There is a great deal of scholarship on exactly what sort of unenumerated rights the Constitution was designed to protect. The most important limit here (though there are others) is that the Ninth and Fourteenth Amendments only protect liberty rights. This means that it would be quite easy to show that they do not protect the “right” to education, health care, or any other “social right,” or the right to strike down Jeff Rowes or any other non-state action.
Sure, you could always say “well, judges might abuse this,” but like Martinned said above, that’s a problem with judicial review generally, not unenumerated rights. What would stop a court from saying “freedom of speech requires that people have the means of engaging in speech, so the government is required to provide X amount of money to each citizen to participate in electoral advocacy each election cycle” or from saying “freedom of speech can be threatened by both state and non-state actors, so it is unconstitutional to refuse to hire someone for a job because of their political views.” The response to either of these decisions would be “you’re crazy — that is not supported by the text or historical understanding of the First Amendment,” but this would be the exact same response to judges that found such “rights” under the Ninth or Fourteenth Amendments.
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November 5, 2009, 6:59 amMartinned says:
Well, I think a Bill of Rights as short as the American one doesn’t change very much, no. If the goal is really to restrict the discretion of the courts this way, you’d need a whole lot more detail. A more important restriction for the courts is the rule of stare decisis, which works regardless of how much you write down.
When I first started studying the law, it seemed obvious that our system of legal codes (= civil code, penal code, code of civil procedure, etc.) was superior to the common law. But the more I’ve learned about the latter, the more my impression is that the difference really isn’t that big. It’s more a difference of method than of result.
Comparing the way the US courts deal with constitutional questions to the way Dutch and European courts do, you can restrict the discretion of the courts by writing down the law in great detail, as with the EU treaties and — to a varying degree — European constitutions, or you can restrict the courts’ ability to take on constitutional cases in the first place.
As long as you do neither, the courts will build whole buildings of case law out of “Congress shall make no law (...) abridging the freedom of speech” or, to name an ECtHR success story, “Everyone’s right to life shall be protected by law.” And that really isn’t very different from ordinary common law rights.
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November 5, 2009, 9:28 amAultimer says:
The mechanism of that discretion relies on the same deep faith in platonic guardians, except that one can roll up the written constitution and hit said guardians with it. Faith is like turtles (all the way down).
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November 5, 2009, 10:57 amyankee says:
I still want to know whether Orin thinks it was a mistake to recognize the unenumerated right to equal protection against the federal government or the unenumerated right to free speech against the states. The enumerated rights are quite explicit about this: equal protection only applies to the states (“nor shall any state ...”) and freedom of speech only applies to the federal government (“Congress shall make no law ...”).
I have no objection to judicial enforcement of unenumerated rights, so I see no problem with this. But if you really think only enumerated rights should be recognized, you have to oppose incorporation of the First Amendment and reverse incorporation of the Fourteenth. Those are the result of the substantive due process much detested by opponents of unenumerated rights. You can deal with the First Amendment incorporation issue by using privileges or immunities rather than SDP, but then you’re stuck giving effect to unenumerated privileges or immunities. For reverse incorporation you’re stuck with substantive due process.
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November 5, 2009, 11:46 amloki13 says:
Ah, DMN, but Jay was pleasant enough to retract his comment because it was wrong. You, however, persist in the unwavering pursuit of the incorrect even when the facts are marshalled against you.
To recap:
1. Claim is that Lawrence found a right to “sodomy”.
2. I countercalimed, “No it dinnit!”
3. Jay, as a gentlemen, retracted his claim, recognizing that he was being snarky (as opposed to Loki, who is never snarky).
4. You... blah blah blah.
Admittedly, no one is quite sure what Lawrence stands for. You can thank Justice Kennedy for that. We’re not even quite sure what level of review was used (rational? rational plus? intermediate minus? slightly strict?). Maybe it applies to, inter alia, sex toys. Maybe not. But one thing we do know from reading it is that it did not find a “right to sodomy”. Why? Because as any half-brained 1L who has taken ConLaw can tell you, whether you win or lose an argument in front of SCOTUS depends on the level of specificity with which you define a right (see Michael H., see also Glucksberg). There is no right for “black voting”. There is a right to vote, whih cannot be denied to black individuals. So you can blather on all you want. But when somone says that Lawrence found a right to sodomy, they are wrong. Jay knew that. I knew that. Apparently your crystal ball says otherwise.
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November 5, 2009, 1:52 pmloki13 says:
Yankee–
I cannot speak for OK, but from a textualist perspective, I can say the following:
1. The First Amendment would be an easy one. If you believe in incorporation (either through PorI or through SDP) then the “Congress shall make no” is superceded by the later 14th Amendment. Think of it in terms of a contract. Provision 1 reads: “James will do X.” At a later date, Provision 14 is added which reads “All responsibilities assigned to James are jointly the responsibility of Bill.” Not too difficult.
2. The reverse incorporation of the EPC is more difficult to defend from a textualist perspective. It was results driven, in that SCOTUS was trying to integrate the DC school system. There’s no real basis (the 5th occured before the 14th, so it clearly wasn’t expected to incorporate it) and Due Process and EP are considered separate usually from a textualist perspective (because they’re separate in the 14th). This might surprise you (it did me) but there are lower federal courts that *do not* apply the EPC to the Feds (I’ve read some cases out of the 5th/11th).
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November 5, 2009, 1:59 pmMartinned says:
But you need something unenumerated to make that work, i.e. either “PorI or through SDP”.
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November 5, 2009, 2:07 pmOrin Kerr says:
????? I am very curious as to where you got the idea that I would want to overrule Bolling v. Sharpe!!! I don’t, obviously: Can you explain why you imagine me having such ideas?
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November 5, 2009, 2:38 pmOrin Kerr says:
I should add that obviously there are many more options than (a) allowing limitless judicial creation of unenumerated rights and (b) overruling all Supreme Court decisions that are not based on constitutional text. I think both of these two specific options are rather absurd, and I’m puzzled as to why the rejection of one seems to be interpreted by some commenters (such as Yankee) as embracing the other.
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November 5, 2009, 2:41 pmloki13 says:
Huh? I don’t understand this at all. Separate issues:
1. You have the BOR, as applied to the Feds (Am. 1–8... we’ll get to 9 later).
2. You have incorporation of the BOR (1–8) against the states through a textual hook– the 14th Am. It’s SDP through jurisprudence, or PorI through scholarship. :) But there’s nothing “unenumerated” going on.
3. Then there’s the listed rights which are a bit squishy (life, libery, property without due process). They’re enumerated.
4. Then there’s the fundamental unenumerated rights found through SDP (jurisprudence) or through the 9th Am. (inkblot/scholarship). These are things like marriage, right to raise children, procreation (contraception, abortion), bodily integrity.
5. Then there’s some nebulous unenumerated rights as proposed by other on this thread.
Make more sense? But it’s incorrect to call the incorporated First Am. an unenumerated right.
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November 5, 2009, 2:55 pmMartinned says:
@loki13: You’re right to distinguish between unenumerated rights properly understood, i.e. the ones referred to in the 9th amendment, and the rest. Still, as others have pointed out above, apart from the 9th amendment there are a few more clauses in the Bill of Rights and the 14th amendment that seem to open the door to claims that have no direct basis in the text. The Priviliges and Immunities clause does not say what priviliges and immunities are intended, just like the 9th amendment does not say which “others retained by the people” the framers had in mind. Likewise, the due process clause doesn’t say which process is “due”. All three are invitations to the judiciary to engage in common law constitutional lawmaking. One of the ways they have seen fit to do so is incorporation, or, more specifically, incorporation through the due process clause instead of the P&I clause.
In that way, the distinction between an incorporated right to free speech and an unenumerated right to privacy is not very clear. They both involve the Supreme Court using the common law method to take significant steps away from the safe ground of the explicit text.
Just like I’m puzzled why you kept trying to stick me with option (a).
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November 5, 2009, 3:12 pmyankee says:
I don’t think you believe that. What I think is that your (apparent) opposition to any protection for unenumerated rights logically requires it. Essentially my argument is a reductio ad absurdum.
I’m confused; I’m not arguing that the courts should have limitless discretion to find unenumerated rights. You, however, seem to be arguing that there should be no protection for unenumerated rights at all. Are you saying that you do support judicial protection of (some) unenumerated rights?
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November 5, 2009, 3:27 pm