Capacious, Ordered Liberty

Liberty in Eclipse

In my explainer about the leaked draft of the proposed Alito majority opinion in Dobbs v. Jackson Women’s Health Organization I tried to be objective in my discussion of the proposed opinion and what would happen legally if it became adopted. Today, I’m going to indulge in expressing my own opinion about a facet of the opinion and how it might better be treated.

Deep and Implicit Roots

In Washington v. Glucksberg, 521 U.S. 702 (1997), a physician in Washington State wanted to administer assisted euthanasia to terminally-ill patients. Washington (at that time) criminalized this activity. Dr. Glucksberg claimed that his rights under the due process clause of the Fourteenth Amendment included a right to administer the medical procedure of euthanasia, and therefore Washington’s law was invalid. Chief Justice William Rehnquist, writing for the Court, rejected this claim, restating the right of substantive due process with an eye towards checking against people claiming that anything and everything imaginable could be called a Constitutional right this way:

Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” [Moore v. East Cleveland, 431 U.S. 494,(1977)}, at 503 (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,” Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937). Second, we have required in substantive-due-process cases a “careful description” of the asserted fundamental liberty interest. [Reno v.] Flores [507 U.S. 292 (1993)], supra, at 302; Collins [v. Harker Heights, 503 U.S. 115 (1990)], supra, at 125; Cruzan [v. Director, Missouri Department of Health, 497 U.S. 261 (1990)], supra, at 277278. Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking,” Collins, supra, at 125, that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment “forbids the government to infringe … ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” 507 U.S., at 302.
Washington v. Glucksberg, 521 U.S. 702, 720-721.

This passage is often abbreviated as a two-element test, as in the draft Dobbs opinion:

That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
Dobbs v. Jackson Women’s Health, draft slip op. at 5 (Alito, J.).

And there, in a nutshell, is the test for whether an unenumerated right is protected by the “substantive due process” clause of the Fourteenth Amendment.

Careful With That Description

Now, you might be wondering what happened to the third element Rehnquist described in the longer passage above, of a “‘careful description’ of the asserted fundamental liberty interest” and indeed, in Justice Alito’s draft opinion that concept is not mentioned or discussed. Let us not be quick to call fault for this — it is a draft opinion, after all.

Requiring a “careful description” of the proposed fundamental right kind of gives the legal game away. If you’re going to address a claim to an unenumerated right, you can strongly influence the disposition of that claim based on the way in which you frame that right. In every case, you’re going to have a person who wants to do a particular thing. In opposition, you’re going to have a governmental entity of some sort that wants to prevent that person from doing that thing.¹ What is that thing? How you describe it will do a lot towards molding judicial opinions about whether that thing is something that can plausibly be considered an individual right or not. As a general matter, the higher level of specificity with which this thing is described, the more likely it is that there won’t be a whole lot of historical support for it (legally) happening, and the less likely it is that there will be a moving moral argument that it should be permitted.

In his Dobbs draft, Justice Alito exerts considerable effort to argue that in ancient Anglo-American jurisprudence, there is a long tradition of criminalizing the induced termination of a pregnancy after “quickening,” which he says is when a mother can feel a fetus move within her womb, then re-defined as occurring between the sixteenth and eighteenth week of pregnancy. (Dobbs v. Jackson Women’s Health, draft slip op. at 16-21, especially pg. 16 & fn. 24 (Alito, J.)) From there, Alito asserts that elective abortion as a matter of right is not “deeply rooted in this Nation’s history and tradition.”² Thus does Alito try to win the substantive due process claim by describing “abortion” in such a way that reveals a lack of historical precedent for it.

The Year History Stopped

Alito calls upon us to focus on the way things were in the year 1868, because that’s the year the Fourteenth Amendment was ratified:

On occasion, when the Court has ignored the “[a]ppropriate limits’ imposed by “respect for the teachings of history,” Moore, 431 U.S., at 503, it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45, 25 (1905). The Court must not fall prey to such an unprincipled approach. Instead, guided by the history and tradition that ‘map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term “liberty.” When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.
Dobbs v. Jackson Women’s Health, draft slip op. pg. 14 (boldface added, other emphases in original).

Altio’s understanding of “liberty” was therefore crystallized at the time the Fourteenth Amendment was adopted. To better understand how this works to push the analysis towards finding against the existence of an unenumerated right, let’s think about voting, not abortion, for a moment.

Do you feel like you have a Constitutional right to vote? If you’re a U.S. citizen and not a convicted felon, I bet you do. But voting is not an enumerated right under the Federal Constitution. But, might voting be sufficiently “deeply rooted in the Nation’s history and traditions” as to qualify as an unenumerated right under the substantive due process clause?

Seems plausible! After all, people had certainly been voting for a long time by 1868. And I’d agree there’s an implication in the Constitution that someone should be voting at some point, because we have the Guaranty Clause. This provides that the several States must provide a “republican form of government.” That, in turn, strongly implies elections, and if you have an election, you need to have someone cast votes, votes that matter in determining the outcome of that election.³ But those voters might not include you.

“No, that can’t be right,” you could object. “The Constitution says a State can’t restrict the franchise.” Well, kind of. The text says that if you are eligible to vote for a member of your State’s legislature, then you must also be eligible to vote for members of the various Federal offices on the same terms. But it’s not explicit that State citizenship necessarily includes the franchise. It does specify that as long as the franchise isn’t restricted on the basis of race, sex, religion, or age over 18, it can be restricted on other criteria. But wait! Does it? A close reading of the Fourteenth Amendment’s Article 1 provides that a State might choose to restrict the franchise on the basis of race, if it is willing to accept reduced numbers of representatives in the House. It just happens that no State has been willing to do that just yet.

Beyond race, sex, religion, and age over 18, conditioning the kind of people who can be qualified to vote, or to vote meaningfully, might be defined by imaginative legislators to a very small number indeed. For instance, a State might take away your right to vote upon your conviction of a felony — even if it turns out that felony conviction is something that happens to members of one racial group more frequently than it does to others.⁴ A close reading of the Federal Constitution reveals that the right to vote it guarantees is at best implied, and if extant at all, somewhat flimsier than you might have imagined three paragraphs ago.

Property ownership was a requirement to vote for much of our early history; North Carolina had a property ownership requirement as recently as 1856. There is Warren Court-era precedent to the effect that any conditioning of the franchise on wealth violates the Equal Protection Clause, Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) though Warren Court era precedent with as little marbling with precedent and reasoning as Harper is apparently in low favor with certain members of the Supreme Court these days.⁵ It’s very easy after reading the Dobbs draft to imagine Justice Alito writing something like:

…as recently as twelve years before the adoption of the Fourteenth Amendment, there were property ownership requirements on the exercise of the franchise; the right of non-property owners to vote, at least as articulated here, was not “deeply rooted in the Nation’s history and traditions.” Unpropertied voters were historically novel in 1868. This notion of a purported right of a non-property owner to vote was not within the scope of ‘liberty’ as that term was understood to the Framers of the Fourteenth Amendment. It was not a right in 1868 and it is not a right today.

Or, alternatively, he might write:

…twelve years before the adoption of the Fourteenth Amendment, North Carolina became the last State to lift its requirement of real property ownership as a condition for exercise of the franchise in elections to State office. It did so legislatively, as did all of its sister States who had preceded it. Imposing or lifting such a requirement, therefore, has always been a matter of a State’s legislative and political decisions, and not a matter of Constitutional gravity. If anything, the “deeply rooted” … “history and traditions” of this Nation are that it is up to the individual States to decide whether one needs to own land or not as a condition of voting, and this is not a matter for the Federal government, and in particular the Federal Courts, to examine.⁶

Nor is there any tradition that your vote have to particularly matter, even cumulated as one among many, many votes. Just for instance, it’s permissible under the Guaranty Clause for a State’s Legislature to select a Governor from between the two candidates who received the most votes if no candidate received a majority, Fortson v. Morriss, 385 U.S. 231 (1966). This seems like an uncomfortable fit with majoritarian principles of democracy, especially if that legislature is gerrymandered such that majority control is held by a party that earned a net minority of votes, for example the way Wisconsin’s is. So as we all recall from 2016, just because a candidate gets the most votes doesn’t mean they win. A “republican form of government” doesn’t mean you get a vote that actually matters; minority rule is sanctioned in all sorts of ways by the Constitution.

I could go on. By now, you can see how the Glucksberg test, intended ab initio to be restrictive, lends itself to cherry-picking history so as to cast claims of rights in a restrictive way. The “deeply rooted in our Nation’s history and traditions” element thus favors finding governmental power instead of individual autonomy. By ending the relevant historical inquiry in 1868, it becomes much easier for a revanchist judge to keep a description of what our rights really are today to a recapitulated version of our country’s Bad Old Days.

Order Is A Fulcrum

Later in the Dobbs opinion, Alito also downplays the notion of “ordered liberty,” defining it as the “boundary between competing interests”: he says both Roe and Casey “struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed ‘potential life.'” Id., at 31.⁷ Alito neither offers nor points to any guidance at all about how to best define that balance point, only that there should be one. Neither does the Glucksberg case, nor do any of its progeny.

Thereafter, Alito tasks Roe and Casey for “legislating from the bench” and coming up with the (perfectly reasonable and plausible, in my opinion) balance points of trimesters (Roe) and viability (Casey). It’s certainly true that there wasn’t any precedent, caselaw, or even statutory law cited to point to these places are when the relative balances of interests would shift. Alito’s own reading of Glucksberg requires that there be such a point. But since he doesn’t like the points chosen in those cases (without explaining why) he accuses those cases with creating such balance points from whole cloth, never mind that there wasn’t actually any precedent from which they could have drawn, and that his own read of the law was that they had to pick something as a boundary upon the right.

How to draw the boundary, then? The very phrase “ordered liberty” reminds me that the reason the original Framers abandoned the Articles of Confederation and created the Federal Constitution was that there needed to be a government that guaranteed freedoms, but was simultaneously powerful enough to accomplish needful things like building infrastructure, running a subsidized post office, maintaining a military, and collecting taxes to pay for it all. But we also seek a society in which the “capacious” promise of liberty is meaningfully realized.

There’s a sweet spot between these, where things are lawful but free. A judge, particularly without any attempt at reaching that spot by a legislature to guide, has little choice but to figure out something reasonable and hope that it sticks. But there’s no lodestar principle in the caselaw beyond “what seems to be fair.” Per Alito in the Dobbs draft, this is an absolute necessity, and simultaneously it is also fatally unprincipled.

Same Text, Better Test

The basic idea behind Glucksberg’s limitations isn’t bad, mind you; it’s how it’s come to be used — it renders the notion of unenumerated rights all but a dead letter.⁸ There’s got to be a better way, and here’s my idea to try on for size.

1. The right must be described carefully. This means we should articulate and consider the nature of the autonomous action that the individual will take at multiple levels of generality.
2. The right must be deeply rooted in the Nation’s history and tradition. This should mean that whatever the person is actually doing is something generally understood to be an area in which the government typically defers to individual decision-making. Note the use of the present tense.
3. The right must be implicit in the concept of “ordered liberty.” This should mean that in determining the existence of the right, we should maximize individual autonomy to the extent reasonably possible.

Element #1: There is no getting around partisans and litigants trying to define the proposed right in question in ways intended to favor their own sides. It’s a fundamental lawyering technique. So a requirement that we understand what’s under discussion in both very specific and more generalized ways is the best I can come up with. Let each side propose both a specific and a general statement of the proposed right under dispute. That will require them to address both specific factual scenarios and broader understandings of what the people affected by the dispute are doing. We can at least encourage good faith even if we can’t guarantee it.

Element #2: My point here is to look at our complete history and traditions. Much has changed in our society since 1868. We should consider ideas, cultural developments, and social concepts more recent than this arbitrary point in time because what the Framers of the Fourteenth thought of liberty might not be the same as us, and we have to decide what rules are going to be on a prospective basis. It’s silly to act like the law attained some sort of apotheosis four years after the end of the Civil War and it’s all been downhill from there. Bear in mind, I don’t suggest that we abandon considering our culture and history. I suggest we consider more of it. Our culture and history are alive, not dead, so let our jurisprudence not pretend they crystallized in amber six generations ago.

As for what to look for, an Alito-like recital of statutes and ancient hornbooks tells us important information, but it isn’t going to be enough. What have people actually done? The law is what is written on the books, true, but it is also what police and prosecutors and lawyers and litigants and judges and juries and jailors actually do. History and traditions are more than laws; they are what people actually do and think and say and experience. Are these areas where people have typically acted on their own, or acted in some sort of relationship with government, or (mostly) done what the government told them to do? If they act on their own, as they please, then the thing in question starts to look more like a right, because individuals acting autonomously without governmental sanction is what rights are. That’s what we should be looking for.

Element #3: This is where most of the analytical effort should go; achieving a capaciously-free, lawful, and pragmatically possible future for the nation is the objective, not a grudging, reluctant, skeptical, retrospective slog through history. We should begin with the presumption that people whose actions do not harm their neighbors may do as they please, and that it is for the government to identify reasons why they should not. We already have a considerable body of jurisprudence informing our ability to identify “compelling governmental objectives,” or “legitimate governmental objectives,” how to identify whether a rule regulating the boundary between individual autonomy and the attainment of those governmental objectives is narrowly-tailored, and so on. United States v. Carolene Products Co., 304 U.S. 144, 152 & fn. 4 (1938).

We will build upon the identification of these unenumerated rights over time; this is the process of creating a common law. The boundaries will evolve over time as we acquire experience. We have done this with free speech. We have done this with criminal procedure. We have done this with the relationship of religious institutions and the government. We have done this with antidiscrimination law. We can do it with unenumerated rights too, if we’re serious about the promise that the Constitution truly does preserve unenumerated as well as enumerated rights.

The more expansive means of identifying enumerated rights I propose here shouldn’t be understood to suggest any particular question would necessarily resolve one way or the other. Back to abortion — I’m not sure whether my expanded interpretation of the Glucksberg test would come out in favor of sustaining Roe or overruling it. I think it would be more likely to sustain, because a) we wouldn’t effectively stop looking at our history and traditions in 1868, and b) we would approach the question of whether something is a right or not with a rebuttable presumption that individuals have autonomy, rather than a presumption that the government has power.

Even if I didn’t like the result in a particular case, I’d feel a little bit better about it if the courts making these inevitable judgment calls were required to approach the issue of individual rights with a presumption of individual liberty, not of governmental power.

1. This, by the way, is why I say that there is no such thing as a “state’s right.” Governmental entities have powers. Only individuals have rights. In some spheres of human activity, the individual has the ultimate decision, and in others, the government does. Constitutional law is about judicially determining where an individual right ends and the government’s power begins.
2. I anticipate that a dissent will 1) point out the sleight-of-hand in calling all post-quickening abortions with the blanket term “abortions,” thus including pre-quickening abortions in the holding, and 2) point out absences from the historical record for permitted or at least tolerated historical abortions which Alito chose to gloss over in his historical survey.
3. I pray that you recall this idea the next time you hear some half-baked claim that the United States “is a Republic, not a Democracy.”
4. You will search the Constitution in vain for text authorizing taking the franchise away from felons. That’s a common-law tradition from pre-Revolution Merrye Olde England.
5. There are still property ownership qualifications for certain kinds of special local districts, largely those with the power to issue surtaxes on property taxes.
6. If the idea of a real property ownership requirement seems unrealistic to you in 2022, how about past military service? Or possession of a high school diploma? Or the ability to produce State-issued photo ID? If there isn’t a fundamental constitutional right, there’s all sorts of ways your ability to vote might be restricted and frankly I don’t care to offer up any additional inspiration to anyone.
7. Notice that the “competing interests” are the power of the State to prohibit abortion for the sake of protecting what is here termed ‘potential life,’ and in opposition, the autonomy of the pregnant woman to decide whether to continue or terminate her pregnancy. Rights are the boundaries of individual autonomy as exercised against state power.
8. As for unenumerated rights claimed under the Ninth Amendment, to be asserted as against the Federal government, the promise of the text (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) is hobbled by caselaw even more constrictive than Glucksberg. In U.S. Public Workers v. Mitchell, 330 U.S. 75 (1947) the Court wrote: “If granted [enumerated] power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.” Conservative legal thinkers like Antonin Scalia and liberal thinkers like Laurence Tribe have both opined that the Ninth refers to “natural rights” that are not Constitutionally protected, so that the omission of a natural right from those enumerated in the Constitution might not be used to exclude it from other discussions. Which, in my opinion, is a distinction without a difference, rights being things individuals may do autonomously, whether enumerated or not. But the prevailing opinion is that such rights are presumptively in place but may be disrupted by the enactment of any positive law, whether legislative, judicial or executive (which is to say, regulatory) in origin. As you might imagine, my thought about the Ninth Amendment is that a regime similar to what I describe for Fourteenth Amendment substantive due process should prevail, particularly one that assumes that such rights exist, and that the Courts should enforce them.