Justice Scalia Versus 'Liberty'

Scalia has identified himself as a "faint-hearted originalist." Nowhere is his faint-heartedness more evident than in his refusal to seriously consider whether and to what extent the Constitution protects unenumerated rights.
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Justice Antonin Scalia is no fan of free-floating liberty. On Monday, writing for a fractured majority in Kerry v. Din, Justice Scalia determined that the refusal of a visa to a U.S. citizen's spouse (an Afghan citizen and former civil servant in the Taliban regime) did not impinge upon a constitutionally protected interest in marriage and thus needed not be supported with any reasoned explanation. In the course of doing so, Scalia heaped scorn upon the notion that the "original meaning" of the Fifth Amendment's Due Process of Law Clause might protect such a "free-floating," "categorical" liberty interest in marriage, or, indeed, any "liberty interest" at all, beyond an interest in not being physically restrained or imprisoned.

This is not the first time Scalia has ridiculed so-called "substantive due process." (He has gone so far as to call it "babble.") But it ought to be the last. The Due Process of Law Clauses of both the Fifth and Fourteenth Amendments are properly understood to require the government to offer a reasoned explanation for any intrusion upon individual freedom, even if it falls short of physical restraint or imprisonment and even if the freedom at issue is not expressly listed in the text of the Constitution. Scalia's disparagement of substantive due process, taken together with his refusal to consider whether other textual provisions of the Constitution are properly understood to protect textually unenumerated rights, suggest that Scalia may be elevating concerns about judicial discretion over his duty to determine the true meaning of our written law.

What is substantive due process, anyway? Before critics coined the term as a pejorative, people tended to use the more precise and complete term "due process of law." As Scalia notes in Din, the concept can be traced back to the "law of the land" clause in Magna Carta. Members of the Founding generation understood it to refer to inherent limits on governmental authority. When the government deprived people of life, liberty or property without any rational, public-oriented justification, its actions were not considered "law." The Constitution's authors understood due process of law to incorporate natural rights that precede government--to protect the innumerable actions that individuals can take without violating the rights of others. Such rights could never be exhaustively listed, as the Framers understood and acknowledged. From the 1780s through the middle of the 19th century, judges enforced unwritten natural rights with no hesitation or controversy. As early as 1819, the Supreme Court interpreted a state's law-of-the-land clause as being "intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice."

Following the Civil War, state courts, and, later, the Supreme Court, used the Fourteenth Amendment's Due Process of Law Clause to safeguard individual freedom from state encroachment. The Court drew no fundamental distinction between rights expressly listed in the Bill of Rights and textually unenumerated rights. Thus, in Meyer v. Nebraska (1923), the Court explained that liberty "denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience." In Lochner v. New York (1905), the Court struck down a law that prohibited New Yorkers from working in a bakery more than 10 hours per day or 60 hours per week; in Buchanan v. Warley (1917), it struck down an ordinance prohibiting blacks from living on a block where the majority of residents were white; in Pierce v. Society of Sisters (1925), it struck down a law outlawing private schools. In all of these cases, it found that the government had restricted individual liberty without a reasoned, legitimate justification.

The first concerted criticism of substantive due process came from Progressives. Progressives argued that the theory of natural rights that informed substantive due process was outdated and that the Constitution should be interpreted to allow the government to act as a benevolent force for good in wide areas of social and economic life, in keeping with the needs of a modern, industrialized society. Later, a New Deal Court that embraced the Progressive critique of the so-called "Lochner era" sought to reconcile a conception of judicial review that offered meaningful protection for some individual rights with an expansive role for government. Justice Hugo Black articulated a theory of "total incorporation," arguing that the Fourteenth Amendment was designed to make the substantive guarantees set forth in the Bill of Rights (and only those guarantees) applicable to the states. Even those justices who did not accept total incorporation generally believed that only textually enumerated rights merited meaningful judicial protection.

This jurisprudential approach, which has been aptly termed "New Deal Originalism," eventually found favor with conservative critics of the perceived "activism" of the Warren Court. Judge Robert Bork criticized the Court's decision to strike down a ban on contraceptive use in Griswold v. Connecticut (1965), contending that, because the legislation at issue did not "threaten any [textually] guaranteed freedom," Griswold was "indistinguishable from Lochner." Although Bork framed his arguments in originalist terms, he glossed over important aspects of the history of the Fourteenth Amendment, which discloses a strong commitment to protecting unenumerated natural rights. Reading Bork, one is left with the impression that he was primarily concerned not with determining the Constitution's original meaning but with limiting judicial discretion--ensuring that judges did not find a way to impose their personal views on the rest of the nation.

Scalia's jurisprudence, too, seems to be driven by a perceived need to limit judicial discretion. He is prepared to acknowledge natural rights that can be connected to express textual limits. Thus, writing for the majority in District of Columbia v. Heller (2008), Scalia determined that the right to bear arms in self-defense is derived from the natural right of self-defense and is protected by the Second Amendment. At the same time, he has denigrated the idea that the Constitution generally protects natural rights--the "Thoreauvian 'you-may-do-what-you-like-so-long-as-it-does-not-injure-someone-else' beau ideal"--and has asserted that judges may not "deny legal effect to laws that (in my view) infringe upon what is (in my view) [an] unenumerated right." Further, in McDonald v. City of Chicago (2010), he declined an express invitation to consider whether the Fourteenth Amendment's Privileges or Immunities Clause is properly understood to protect substantive rights--including, perhaps, unenumerated rights-- against the states. Instead, he concurred in a decision grounded in --of all things!--substantive due process, despite his "misgivings ... as an original matter," reasoning that the doctrine is "both long established and narrowly limited." (By contrast, Justice Clarence Thomas accepted the invitation, making a persuasive originalist case in his concurrence that the Privileges or Immunities Clause protects the right to bear arms in self-defense against the states.) Original meaning seems to matter less to Scalia than keeping the scope of judicial review "narrowly limited."

Scalia has identified himself as a "faint-hearted originalist." Nowhere is his faint-heartedness more evident than in his refusal to seriously consider whether and to what extent the Constitution protects unenumerated rights. Genuinely originalist judicial engagement would require diligent inquiry into the truth concerning the meaning of every constitutional provision. So long as Justice Scalia neglects this inquiry and chooses instead to acquiesce in precedent that he deems illegitimate (while deriding it and seeking to limit it), his criticism of the Court's alleged departure from original meaning will lack substance.

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