Orin Kerr:
?????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?

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.

Orin Kerr: 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.

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?

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.

Orin 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.

Just like I’m puzzled why you kept trying to stick me with option (a).

Martinned: But you need something unenumerated to make that work, i.e. either “PorI or through SDP”.

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.

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 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?

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.

But you need something unenumerated to make that work, i.e. either “PorI or through SDP”.

yankee: 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.

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).

David Nieporent: 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.

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.

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.

Orin Kerr: Martinned, The concept of a written constitution is that the written constitution cabins discretion.

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).

Orin Kerr: 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).

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.

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.

loki13: 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?

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.

Orin Kerr: 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).

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.”

Unrestrained courts, which this argument would lead to if followed, are no better than unrestrained legislatures.

Worse. Legislators can be voted out of office.

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).

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.

loki13: 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.

“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.

Martinned: Cool! Let’s talk about constitutional torts, that’s always fun.

What, you wanna Bivens me? That’s so 1983, dude!

Orin Kerr: 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?

Cool! Let’s talk about constitutional torts, that’s always fun.

Orin Kerr: 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.

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.

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.

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?

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.

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.

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).

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.”

readery: 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?

For the former you don’t have standing, and for the latter: your boss?

PatHMV: PatHMV 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).

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.

Who do I sue?

Orin Kerr: 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.

I don’t believe you. I think you’re making it up.

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.

Orin Kerr: I hereby pronounce Jeff Rowes unconstitutional under the unenumerated rights of the U.S. Constitution.

Jeff Rowes is not state action.

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.

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…