The key question posed by the Institute for Justice’s call for judicial engagement is not whether everyone can agree on a single theory of the Constitution, but whether we should insist that judges make a sincere effort to interpret and apply the Constitution in all cases.
It appears most people believe there are at least some unenumerated constitutional rights that courts should protect, including the right to travel, to marry outside one’s own race, to conceive and raise one’s own children, and perhaps to support oneself through work. In any given case, the government may be seeking to advance legitimate ends or illegitimate ends. A properly engaged judge makes a sincere effort to tell the difference in all constitutional cases.
For example, if you believe someone has an unenumerated constitutional right not to be forcibly sterilized at the whim of democratic majorities — as Carrie Buck was along with thousands of other women following the Supreme Court’s infamous decision in Buck v. Bell, 274 U.S. 200 (1927) — then it matters a great deal whether courts apply a sincere or an insincere standard of review. If the government claims, without evidence, that the sterilization is necessary to protect the life of the woman because she is non compos mentis and physically unable to endure a pregnancy, should a court accept that assertion at face value even in the face of evidence that the government’s true (and illegitimate) objective is eugenic, as it was in Buck v. Bell? That’s precisely what the rational basis test tells judges to do, and hopefully we can agree that the right not to be forcibly sterilized for improper purposes would be a cruel hoax if it were subject only to rational basis review.
The same is true of other constitutional rights, whether enumerated or unenumerated. The simple fact is that sometimes the government’s purposes are legitimate (protecting public health and safety) and sometimes they are not (eugenics, animus, economic protectionism, naked corruption). And though there will inevitably be close cases, judges are equipped to tell the difference; we know because they do so all the time in cases involving constitutional values the Supreme Court has deemed “fundamental.”
Those who wish to eliminate any basis for judges to protect unenumerated rights like the ones listed above have the alternative of amending the Constitution. Among other things, they would need to eliminate the Ninth and Fourteenth Amendments, and clarify that the Tenth Amendment and the doctrine of enumerated powers are not intended to limit the power of the federal government in any significant way, contrary to the plainly and repeatedly expressed understanding of the Framers. I doubt many people would support such an effort once they understood the effect it would have on liberty.