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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, November 11, 2009 ::
    Substantive Due Process and Unenumerated Rights: confronted with the Janus-face of the current Court, what's a student to due -- er, do?

    A student asks:
    In Con Law II class, I tried at the beginning of class to very poorly state an argument on why an incestuous Plaintiff ][i.e., a plaintiff arguing that incest is an unenumerated right protected by the Due Process Clause] would be able to win under Casey - which went with the Glucksberg approach - and used the Mystery Passage, etc. to find for the Plaintiffs. However, you later said under Lawrence, that the Plaintiffs would win as well b/c the Court left the door open. Can you please, please review for us the two approaches to analysis that we will be tested on at the end of the semester.Obviously, I am not the only one struggling to understand how the Court actually analyzes these things.
    Well, there's the Yale Law School answer: something along the lines of, look it up yourself -- I just do theory. But I actually don't believe in that sort of teaching, so I'll actually try, in this post, to go beyond what we've had time for in the classroom.

    First, let's clear up the basic confusion about what I said: Lawrence, and the Casey Mystery Passage, are favorable to our hypothetical incest litigants. Glucksberg is adverse to them. A state defending its incest laws could limit the damage from Casey by arguing that the Mystery Passage was deployed only in support of a right (abortion) already recognized by the Court. But Lawrence, which relies on the Casey mystery passage, is not so limited: to the contrary, it deploys the Casey Mystery Passage to recognize a right that was specifically rejected by the Court more recently than the abortion right was recognized.

    So, at the Incest Bowl, the teams are:

    On offense: Casey, Lawrence (and of course the cases, beginning with Griswold, that led to Casey)
    On defense: Glucksberg (and other cases, especially Michael H., that further explicate how tradition works as a tool of s.d.p. analysis)

    But what you really want to know is, how do these do contrasting analyses work?

    For the tradition-bounded Glucksberg analysis, this is fairly easy to answer (see infra). For Lawrence, it is not, because Lawrence is not a mode of analysis at all. It is a mode of attitudinizing. That is why I thought it was important to go through its opening paragraph and suggest that it compares unfavorably to the average freshman philosophy paper at CCNY. In apprenticing ourselves to the discipline of law, we made the sacrifice of agreeing to "think like a lawyer." We deserve better, for that sacrifice, than to find the Supreme Court thinking like a stoned teenager, and believing that doing so constitutes great judicial statesmanship.

    If I could tell you what "Lawrence analysis" consists of, I would. The best I can come up with is: if it's sex, or if it facilitates sex, then it's protected by the Due Process Clause. Not only can it not be prohibited: people who do it, or wish to, cannot be "demeaned." A long tradition of moral disapproval, far from strengthening the legislature's case, actually weakens it, b/c it constitutes an "irrational" motivation, suggesting in turn that "mere animus" against an unpopular group was the sole basis of the statute.

    Undoubtedly, the trend of the times is away from enacting sodomy statutes, towards repealing them, and away from enforcing them where they are still on the books. I suspect that in Lawrence we see a Court that simply couldn't wait for the obvious flow of popular opinion to become universalized in legislative and executive practice. Before that happened, the Court felt it had to get out there and be seen in its progressive plumage (having waited for Justice White to die, but, unchivalrously, not waiting for Justice O'Connor even to leave the Court).

    As the saying goes, "There go the people. I must join them, for I am their leader." In reality, no state other than Texas, and very few jurisdictions even there, needed the Supreme Court to tell them their police forces had better things to do than invade gay people's bedrooms. The Lawrence Court is taking a "heroic" stand against a largely imaginary dragon -- and in any event, an already-dying one. (As the good Dean Jeffries -- a Yale Law student in the early '60s -- reminded us in regard to Griswold: whatever problem the Griswold litigants were out to solve, actual difficulty in accessing contraceptives in Connecticut in that era could not by any stretch of the imagination have been one of them.)

    There is no certain limit to the application of Lawrence -- but there is also no certainty as to when the Court will or will not apply Lawrence (and/or the Casey Mystery Passage). We cannot know when a majority will decide it has to stand guard over getting it on (because liberty protects spatial autonomy in the higher sphere of free definition of the mystery of the upper atmosphere, or whatever), and when it will use a mode of analysis recognizable as legal. What did Lawrence tell us about why Glucksberg was inapplicable? Nothing. It ignored Glucksberg completely. It overruled Bowers despite the fact that Glucksberg constitutes substantial intervening authority that duplicated the analytic mode of Bowers and therefore actually strengthened its precedential weight. (And Glucksberg, needless to add, is not overruled.)

    So what, then, is the Glucksberg analysis, exemplified also by Bowers, and explained in more detail (esp. on the question of how to pick the right "level of generality" in defining the right that is being claimed) in Michael H. v. Gerald D.?

    Glucksberg analysis (text and tradition):

    1. Check the constitutional text. If you're dealing with an "unenumerated right," then, by definition, the text doesn't solve your problem, but it's good to be reminded that in Constitutional Law we're always trying to interpret a written text, and that text trumps everything else, including tradition.

    2. If there's no clause giving protection to the right being claimed, ask whether the right is nonetheless "deeply rooted in our nation's history and traditions" (Glucksberg), "essential to a fundamental scheme of ordered liberty" and "implicit in the concept of ordered liberty" (Palko v. Conn., where, you'll remember, the 5th Am. textual privilege against double jeopardy was held not to be so essential for 14th Am. purposes) and "so rooted in the traditions and conscience of our people as to be ranked as fundamental" (Snyder v. Mass.), then it should have protection, despite not being textually protected.

    Ignore history-nihilists who say we can't know anything about the past. The vast majority of academic historians ignore such people: so should you. As for moderate history-skeptics, who say the past is knowable but permanently indeterminate, b/c our knowledge of it is always changing (hopefully improving), say, yes, but, we do know some things. E.g. it's unlikely that the long tradition of criminalizing sodomy and using opprobrious labels for it was actually a backhanded, ironic way of celebrating it. Some people argue (controversially) that 19th doctors favored abortion restrictions only b/c they wanted to keep the abortion business for themselves; but even if that were true, it wouldn't show that abortion was a "right," to be set alongside contracting, speech, and jury service.*

    3. Defining the right: Since any claimed right can be squeezed up the pole of generality until you reach something like "good thing," we need to be more specific. "Good thing" is too general to deal with. It's true, but too trivially so to be meaningful, to say that "good things" are part of "our tradition." I suppose a legislature that legislated against "good things" would necessarily lack a rational basis for doing so, but that too is at best a trivial truth, b/c an "anti-good-things" bill is not something any legislator actually proposes. So we need to be more specific.

    But how much more? Not infinitely specific, right down to the hair color and musical preferences of the plaintiff. Defining the right with such ridiculous precision would leave the Court unable to find a tradition one way or the other.

    Take Meyer v. Nebraska. What were the rights claims there? They boiled down to two, and neither of them were articulated as "good things," or even something slightly less general, but still very general, like "intimate relationships." They were (1) the right to pursue a lawful and respected calling (that of teacher), and (2) the right of parents to select educational options for their children. The first has deep roots in American practice and in privileges-and-immunities jurisprudence. The second is a short-step inference from the fact that, although schooling in the U.S. has usually been delegated by parents to organized schools when possible, nonetheless, this has not always been possible, and in any case, parents have always been heavily involved in preparing their children for organized schooling, helping them succeed in it, and choosing among schooling options when options have been available.

    Note that the definition of the rights in Meyer did not get too specific. The Court did not define the rights-claim as, e.g., the right of German-American parents in Nebraska who go to churches whose names start with Z to direct the education of their children. Adding those details would have made it impossible to find a tradition either for or against the asserted right. They would also have added nothing meaningful to the claims.

    For the "Ninomaniac" take on how to get the level of generality/specificity "just right" in articulating an unenumerated rights claim under s.d.p., see footnote six of Michael H. v. Gerald D. There Scalia proposes that the right level is -- not the most specific level possible, as the Casey joint opinion erroneously claims he believes -- but rather the most specific level at which it is possible to find a tradition either for or against the resulting claim. Is this a perfect solution? At least it is a solution that can be defined -- unlike any that the dissent in that case suggests -- in terms other than leading to a preferred result.

    One objection to the Glucksberg analysis, especially when filtered through the Scalian approach to selecting a level of generality at which to define the rights-claim, is that by privileging tradition and demanding specificity, it tends to lead to conservative outcomes, and thus is not as neutral as its advocates claim. This is true, but only up to a point. As I pointed out in class, tradition, as used in s.d.p. analysis, describes what legislatures MAY do, not what they MUST do. The real function of Glucksberg, as opposed to Lawrence, is to limit the scope of judicial dictation to legislatures, and thus, to the people.

    As a result of Glucksberg, the people, through their state elections and state legislatures, can still debate assisted suicide and adopt and change laws accordingly. As a result of Michael H., with its strong "traditionalism," the people, through their state elections and state legislatures, remain free to decide whether blast-from-the-past adulterous dads should be able, or not, to assert parental rights over children of currently intact families. But as a result of Roe and Casey, the people must leave abortion unregulated before "viability" and cannot restrain it at any stage by any law that the Court might eventually conclude is an "undue burden" on the abortion right. And as a result of Lawrence, the loosening of sodomy laws, which was already in progress as a result of widespread social re-thinking, has suddenly been imposed as a top-down constitutional rule -- a rule, moreover, that would have profoundly shocked the original Framers, the framers of the 14th Am, and indeed every constitutional authority down to and including Justice Harlan II, who, in his dissent in Poe v. Ullman urging that Connecticut's contraception ban be overturned, wrote:
    [T]he very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the physical wellbeing of the community but has traditionally concerned itself with the moral soundness of its people as well. Indeed, to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from community concern a range of subjects with which every society in civilized times has found it necessary to deal. The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any constitutional doctrine in this area must build upon that basis.
    367 U.S. 497, 545-546 (1961)


    * Prof. John V. Harrison, U.Va., says the framing generation of the 14th Am would have placed jury service, along with voting, on the "political" side of the then-current "civil rights"/"political rights" dichotomy, a view that aligns him, pro tanto, with Justice Field's dissent in Strauder (tho' Harrison agrees with Strauder on other grounds). It seems to me jury service bids fair to be seen as a more basic right than voting, from the p.o.v. of what the framers of the 14th would have seen a fundamental right to be. I base this on the Bill of Rights, which says a lot about juries, but nada, nil, bupkus about voting.

    :: David M. Wagner 10:49 AM [+] ::

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