THE GRISWOLD DIAGRAMS: TOWARD A UNIFIED THEORY OF CONSTITUTIONAL RIGHTS

Stephen Kanter*

INTRODUCTION Four decades after Griswold v. Connecticut,1 the fundamental controversy regarding the exercise of judicial review by the Supreme Court in our constitutional system remains the legitimacy of the Courts practice of deriving individual rights that are not textually explicit, and enforcing those rights against majoritarian legislative enactment. Since 1973, when Roe v. Wade2 was decided, much scholarly, judicial and public attention concerning fundamental rights has naturally focused on the abortion decisions. Unfortunately, the controversial and often outcome-oriented nature of the abortion discussion has contributed more heat than light, and obscured important threshold analytical questions. This Article starts from the proposition that a more interesting and fruitful approach is to take a step back from the abortion issue, and return to the basic underlying question of what, if any, are the proper constitutional theories, sources, and analytical methods for the derivation of individual rights by the Court in situations where the textual paternity of the claimed rights is unclear. The objective is to develop and propose a viable theoretical model as a critical first component of a workable and comprehensive set of analytical tools for the Court to use in assessing claims for fundamental individual rights. The Article begins with a careful look at various analytical approaches for finding fundamental rights from the different opinions in Griswold,3 and then evaluates several other approaches that have been
* Professor of Law (Dean 1986-1994), Lewis and Clark Law School, Portland, Oregon; S.B. 1968, Massachusetts Institute of Technology; J.D. 1971, Yale Law School. I would like to thank my students, Nathan Carter and Blerina Kotori, for their helpful research assistance. 1 381 U.S. 479 (1965) (holding unconstitutional Connecticut statutes criminalizing the use of contraceptives). 2 410 U.S. 113 (1973) (holding unconstitutional Texas criminal anti-abortion statutes). 3 Justice Douglas delivered the opinion of the Court, for himself, Chief Justice Warren and Justices Brennan, Clark and Goldberg. Griswold, 381 U.S. at 479-86. Justice Goldberg, joined by

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suggested elsewhere. The theoretical validity of each analytical framework is considered separate from the quality of the application of that framework by its proponents. This abstraction, and a companion diagrammatic representation of each framework,4 serves to focus attention on the merits or demerits of the general frameworks themselves. After extracting what is valid from these approaches, the Article constructs and proposes a new composite theoretical model for the courts to use in fundamental rights cases. The ultimate utility of the proposed model depends in part on two significant problems of implementation. These are: (1) the problem of identifying the proper sources of law and methods of interpretation that courts should use in applying the model and finding particular rights; and (2) the appropriate judicial mechanisms of enforcementincluding sensible prudential and structural limitations on such enforcementfor those fundamental rights that legitimately are developed by courts from appropriate source materials. These thorny implementation issues are addressed gingerly here, and only to the extent that they help to explain the proposed model. The primary goal is to engender debate and refinement of the proposed model. I am hopeful that the outcome of this debate will be a workable consensus for a model that is usable by the courts. Once this is accomplished, there will need to be a serious and more detailed exploration of sources, methods and institutional considerations in individual cases. The further devil (and hopefully the spare angel) is, as always, in these details. Part I of this Article discusses the Griswold majority opinion. Part I.A uses the language of penumbras relied upon by Justice Douglas, and demonstrates that there is legitimacy and vitality to this theory, even though it was rather vaguely and poorly explained in Griswold. Part I.B presents a more workable set of alternative models for the majoritys implied rights theory. These models contribute naturally and directly toward development of a satisfactory comprehensive approach for judicial use in finding fundamental rights. Part II considers two concurring opinions in Griswold. Part II.A develops a model for the proper interpretation of the Ninth Amendment from Justice Goldbergs opinion, and explains the role of this interpretation in my proposed composite model at the end of the Article. Part II.B looks closely at Justice Harlans views, and critically analyzes the underlying doctrine of substantive due process upon which he relied.

the Chief Justice and Justice Brennan, issued a concurring opinion. Id. at 486-99. Justices Harlan and White concurred only in the Courts judgment, and each issued a separate concurring opinion. Id. at 499-502 and 502-07, respectively. Justice Black filed a dissenting opinion, joined by Justice Stewart, and Justice Stewart filed a dissenting opinion, with the favor of joining returned by Justice Black. Id. at 507-27 and 527-31, respectively. 4 See infra Diagrams 1-10.

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Part III focuses on the most serious criticisms of the Griswold fundamental rights approaches. Careful attention is given to the dissenting opinions of Justices Stewart and Black, the scholarly work of Raoul Berger and Judge Robert Bork, and the more recent critical comments and opinions of some justices who were not on the Supreme Court when Griswold was decided. These views are entitled to respect, and the model proposed at the end of the Article takes account of them and attempts to address their legitimate concerns. Part IV addresses several of the most promising approaches that were not considered at all by any of the justices in Griswold. Partly for this reason, both proponents and opponents of judicially enforceable fundamental rights have given much less attention to these approaches than they deserve. Part IV.A justifies a robust role for a revived Fourteenth Amendment Privileges or Immunities Clause as one of several overarching principles in the proposed model. Part IV.B similarly discusses the additional interrelated animating principles of Liberty, Equality and the Pursuit of Happiness. Part V draws on the partial models presented and analyzed in Parts I through IV, and constructs and proposes a new comprehensive theoretical composite model for the courts to use in looking for and finding fundamental individual rights that are not textually explicit. Finally, the Article concludes with a call for other scholars and the courts to consider and debate the proposed model, suggest any refinements, and then accept it for use, both by the courts in deciding individual rights cases and by scholars in critically evaluating the courts work. I. THE GRISWOLD MAJORITY OPINION: ENVISIONING FUNDAMENTAL RIGHTS Whenever a court sets about the task of finding and enforcing an individual right, one of its primary concerns is to identify textual sources within the Constitution which might support the right. For a variety of reasons discussed later, the Griswold majority opinion confined its search to the provisions of the Bill of Rights and their implications. Although artificially limited in this regard, the opinion begins the process of developing a useful theory of implied rights, as discussed in Part I.A below. The theory is then re-conceptualized, generalized and made more functional in Part I.B.

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Justice Douglas, Penumbras, and a Theory of Implied Rights

In identifying a source for fundamental rights, Justice Douglass majority opinion in Griswold sketched5 a super-penumbral rights approach that can be productively diagrammed as a plate of sunny-side up eggs.6 Before discarding this approach as an obvious piece of extra-constitutional sleight of hand, it is worth exploring its underpinnings more carefully. The central idea is that each textually explicit core right also has a protective shell, and a set of corollary or derivative rights. The Court describes these necessarily implied or peripheral rights as penumbras; that is, each core right casts a shadow or has a penumbra that contains the implied rights. This is a well-established approach to constitutional text, and hardly a novel or inadmissible proposition conjured out of the ther by Justice Douglas.7
5 Griswold, 381 U.S. at 479-86. Justice Douglas has been justifiably subject to criticism for the sketchy and incomplete quality of his Griswold opinion. See, e.g., Richard A. Posner, Legal Reasoning From the Top Down and from the Bottom Up: The Question of Unenumerated Constitutional Rights, 59 U. CHI. L. REV. 433, 445 (1992) (stating that Douglas wrote the opinion in his usual slipshod way); Glenn Harlan Reynolds, Sex, Lies and Jurisprudence: Robert Bork, Griswold and the Philosophy of Original Understanding, 24 GA. L. REV. 1045, 1062 (1990) (stating that the opinion in Griswold bears the unmistakable mark of Justice Douglas enthusiasm, and that the Courts reasoning might have been stated more clearly); Pierre Schlag, The Aesthetics of American Law, 115 HARV. L. REV. 1047, 1111 (2002) (stating that Justice Douglass opinion for the Court reads more like an amateur exercise in metaphysical poetry than law); Laurence H. Tribe, In Memoriam: William J. Brennan, Jr., 111 HARV. L. REV. 41, 45 (1997) (calling Douglas opinion unsatisfyingly sketchy). Such criticism, however, does not a fortiori condemn the analytical framework proposed as a theoretical matter, or show that it was misapplied in the instant case. This is perhaps particularly so in a legal culture based on a common law methodological approach, which by its nature disclaims completeness or scientific perfection in its legal system. Better craft is nonetheless certainly to be strived for, both to improve the reliability and quality of result and to maintain the legitimacy and the equally important perception of legitimacy vital to the Courts role in our Constitutional democracy. 6 See infra Diagram 3. 7 See, e.g., Missouri v. Holland, 252 U.S. 416, 433-34 (1920) (addressing the issue of whether a treaty is forbidden by some invisible radiation from the general terms of the Tenth Amendment); Helvering v. Davis, 301 U.S. 619, 640 (1937) (holding that there is a penumbra in which discretion is at large in determining the limits of the Congressional spending power); McCulloch v. Maryland, 17 U.S. 316, 407 (1819) (holding that the Constitution requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose these objects be deduced from the nature of the objects themselves). For more history of the judicial usage of penumbra before Griswold, see, e.g., Henry T. Greely, A Footnote to Penumbra in Griswold v. Connecticut, 6 CONST. COMMENT. 251, 252-60 (1989); Burr Henly, Penumbra: The Roots of a Legal Metaphor, 15 HASTINGS CONST. L.Q. 81, 83-92 (1987). In 1934, Karl Llewellyn argued for the forthright recognition of the penumbral qualities of the Constitution. See K.N. Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 26-28 (1934) (urging that the Constitution be seen as a fundamental framework and a working . . . institution whose edges are penumbra-like[,] while critiquing a more orthodox strict textual or original intent model as unworkable, and heavy with the fragrance of a charnel-house). The idea that laws have cores and penumbras was also the subject of a debate between Professors Hart and Fuller, which began years before Griswold was decided. Compare

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Justice Douglas, referring to the concrete clauses of the First Amendment,8 cited a number of proper examples of what I will call the Basic Core/Penumbra Model in operation.9 Penumbral First Amendment rights include a right of association, and privacy of constitutionally valid association;10 parental control and choicewithin limitsover their childrens education;11 academic freedom, especially in the university setting;12 freedom of inquiry and thought;13 the right to
H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 607 (1958) (arguing that a law has a core, in which interpretation of its meaning is relatively settled and there is no need for discretion, and a penumbra in which it is not) with Lon L. Fuller, Positivism and Fidelity to LawA Reply to Professor Hart, 71 Harv. L. Rev. 610, 670 (1958) (arguing instead that a law has a structural integrity which allows a judge great discretion within its limits but does not permit him to go beyond those limits). 8 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. CONST. amend. I . 9 See infra Diagram 1. 10 Griswold, 381 U.S. at 482-83. (The association of people is not mentioned in the Constitution nor in the Bill of Rights. . . . Yet the First Amendment has been construed to include [this right].) The predicate assertion is not strictly true. The First Amendment does expressly protect the right of the people peaceably to assemble, and to petition the Government but these rights are narrower and qualitatively distinct from the nonetheless related penumbral right of association. Justice Douglas would have done better to mention the rights of assembly and petition as part of the core of the First Amendment giving rise to the broader penumbral right of association. See Healy v. James, 408 U.S. 169, 181 (1972) (noting that the freedom of association . . . has long been held to be implicit in the freedoms of speech, assembly, and petition). Later cases clarify and refine the penumbral associational rights. See, e.g., Roberts v. United States Jaycees, 468 U.S. 609 (1984) (refusing to exempt the all-male Jaycees from a state law banning sex discrimination for public accommodations). Justice Brennan, writing for the Court, discussed two forms of protected association: the right to make choices to enter into and maintain certain intimate human relationships . . . as a fundamental element of personal liberty[,] Id. at 617-18; and [t]he right to associate for expressive purposes[.] Id. at 623. 11 Griswold, 381 U.S. at 482 (relying on Pierce v. Society of Sisters, 268 U.S. 510 (1925) and Meyer v. Nebraska, 262 U.S. 390 (1923)). Although Justice Douglas recast the original basis of these decisions from Fourteenth Amendment liberty and substantive due process to the First Amendment, he was surely correct that with the First Amendment now firmly incorporated against the States, and with modern developments in substantive First Amendment jurisprudence, the rights in question would be protected as penumbral rights under the First Amendment. 12 Griswold, 381 U.S. at 482 (citing inter alia Sweezy v. New Hampshire, 354 U.S. 234 (1957) (setting aside a contempt conviction for Sweezys refusal to answer questions at a State legislative hearing about a lecture he delivered at the University of New Hampshire)). Justice Frankfurter, concurring, asserted that for societys good, academic freedom must be left as unfettered as possible and can only be subordinated by the State for reasons that are exigent and obviously compelling. Id. at 262. See generally LILLIAN HELLMAN, SCOUNDREL TIME (1976) for a literary account of the McCarthy era, blacklisting, and the assertion of First Amendment immunity from answering the questions of the House Committee on Un-American Activities. The concept of academic freedom gained further support in later cases. See, e.g., Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589 (1967) (striking down a requirement for university employees to sign a certificate declaring they were not Communists on threat of dismissal). Justice Brennans majority opinion held that academic freedom is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. Id. at 603; Papish v. Bd. of Curators of the Univ. of Missouri, 410 U.S. 667 (1973) (holding state universitys expulsion of a graduate student, for distributing a political

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distribute, receive and read information;14 and freedom of belief.15 One can now confidently add to this list of penumbral First Amendment rights, inter alia, freedom of conscience,16 certain forms of symbolic
cartoon depicting policemen raping the Statue of Liberty, violated the students First Amendment rights; the mere dissemination of ideasno matter how offensive to good tasteon a state university cammpus [sic] may not be shut off in the name alone of conventions of decency. Id. at 670.); see also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.). 13 Griswold, 381 U.S. at 482. Justice Douglas appears to rely on Wieman v. Updegraff, 344 U.S. 183 (1952) for this proposition; see also Wooley v. Maynard, 430 U.S. 705, 714 (1977) (We begin with the proposition that the right of freedom of thought [is] protected by the First Amendment); and Schneiderman v. United States, 320 U.S. 118, 137 (1943) (The consitutional fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come. Instead . . . the First Amendment [guarantees] freedom of thought.). 14 Griswold, 381 U.S. at 482 (relying on Martin v. Struthers, 319 U.S. 141 (1943) (upholding the right of a Jehovahs Witness to distribute leaflets door to door)). A line of cases interpreting and expanding these rights has followed. See, e.g., Lamont v. Postmaster Gen., 381 U.S. 301, 306-307 (1965) (finding unconstitutional the requirement that a recipient of communist political propaganda sent through the mails from a foreign country submit a request to the Post Office in order to receive the material); Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982): [T]he right to receive information and ideas . . . is an inherent corollary of the rights . . . that are explicitly guaranteed by the Constitution, in two senses. First, the right to receive ideas follows ineluctably from the senders First Amendment right to send them . . . More importantly, the right to receive ideas is a necessary predicate to the recipients meaningful exercise of his own rights of speech, press, and political freedom. See, e.g., McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (striking down Ohios election law prohibiting distribution of anonymous political leaflets). 15 Griswold, 381 U.S. at 483 (relying on W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (overruling Minnersville v. Gobitis, 310 U.S. 586 (1940), and striking down the compulsory flag salute policy of the Board of Education)). Justice Jacksons oft-quoted statement in his Barnette majority opinion is that if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. Barnette, 319 U.S. at 642. This American ideal is in stark contrast to human experience throughout much of history which is replete with examples of forced conversions, coerced confessions and imposed renunciation of beliefs. Fleeing from religious and political persecution of this sort was one of the major motives for coming to America, and establishing the principles of the Declaration of Independence and the Constitution. 16 See, e.g., Gilbert v. Minnesota, 254 U.S. 325, 335-36 (1920) (Brandeis, J., dissenting) (objecting that as upheld by the majority the statute invades the privacy and freedom of the home. Father and mother may not follow the promptings . . . of conscience or of conviction, and teach son or daughter the doctrine of pacifism.) (emphasis added); Welsh v. United States, 398 U.S. 333, 340 (1970) (holding that the statute, which allowed conscientious exemption from the draft on religious views, must also allow exemption based on deeply held secular moral convictions). Justice Harlan, in his concurrence, insisted that a distinction between religious beliefs and deeply held personal conscience beliefs violated the Free Exercise and Establishment Clauses: [T]he conscience of religion may not be preferred simply because organized religious groups in general are more visible than the individual who practices morals and ethics on his own. Id. at 360 n.12; Abood v. Detroit Bd. of Ed., 431 U.S. 209, 234-35 (1977) ([f]or at the heart of the First Amendment is the notion that . . . in a free society ones beliefs should be shaped by his mind and his conscience rather than coerced by the State). Cf. Washington v. Glucksberg, 521 U.S. 702, 727 (1997) (Rehnquist, C.J.) (liberty necessarily includes freedom of

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expression,17 and the right not to speak or to be involuntarily associated with ideas not held as ones own.18 The modern Courts partial protection of commercial speech,19 non-malicious libel of public figures,20 and emotionally distressing parody21 are also properly viewed
conscience). 17 See, e.g., Tinker v. Des Moines Ind. Cmty. Sch. Dist., 393 U.S. 503 (1969) (upholding the right of a junior high school student to wear a black arm band to school to protest the Vietnam war); Cohen v. California, 403 U.S. 15 (1971) (reversing Cohens disturbing the peace conviction for wearing a jacket in a courthouse hallway with the words Fuck the Draft on the jacket); Spence v. Washington, 418 U.S. 405 (1974) (reversing Spences conviction for hanging a flag he owned out of his apartment window with a peace symbol taped to it to protest the invasion of Cambodia and the killings at Kent State University); Texas v. Johnson, 491 U.S. 397, 397 (1989) (holding that flag burning as a means of protest is expressive conduct entitled to protection); United States v. Eichman, 496 U.S. 310 (1990) (reaffirming Texas v. Johnson and striking the Flag Protection Act passed by Congress in response to the Courts decision in Johnson); and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (nude dancing as protected symbolic expression); see also the controversy surrounding the proposed march of the Nazis in Skokie, Illinois, where the courts upheld the right to march and wear symbols including the Nazi swastika in Natl Socialist Party v. Skokie, 432 U.S. 43 (1977); Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), stay denied, 436 U.S. 953 (1978); Cf. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (rejecting an attack on a Park Service regulation prohibiting overnight camping in certain parks, though assuming arguendo, but not deciding, that sleeping in public parks as a demonstration to call attention to the plight of the homeless is expressive conduct protected to some extent by the First Amendment). 18 See Wooley v. Maynard, 430 U.S. 705 (1977) (affirming the right of objectors to cover New Hampshires motto Live Free or Die on their auto license plates). Chief Justice Burgers majority opinion held that the First Amendment includes both the right to speak freely and the right to refrain from speaking at all. Id. at 714 (emphasis added). That the right not to speak is truly penumbral and not just an example of a possible general rule that each affirmative right necessarily includes its flip side or negative as part of its core is demonstrated by the fact that not all of the rights in the Bill of Rights have been interpreted to include their flip sides. Compare, e.g., Faretta v. California, 422 U.S. 806 (1975) (the Sixth Amendment right to counsel also includes a right to self representation without counsel) with Singer v. United States, 380 U.S. 24 (1965) (the jury trial right does not give defendant an unfettered right to waive jury and demand to be tried by a judge). Justice Scalia makes a similar point in arguing that a right to eat ought not to require recognition of a constitutional right to starve oneself to death. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 981 n.1 (Scalia, J., dissenting). Justice Scalia is probably correct that there is no such general right, but under certain circumstances there may be a strong claim for a composite or hybrid right. Consider, for example, the reported death of a chronically ill woman in Portland, Oregon who chose to end her life by refusing to eat or drink. Don Colburn, End Comes for Patient Who Fasted, THE OREGONIAN, July 29, 2005, at D01. See infra notes 65-80 and accompanying text for further discussion of composite or hybrid rights. For the penumbral right not to be associated with individuals espousing unwanted ideas, see, e.g., Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995); Boy Scouts of America v. Dale, 530 U.S. 640 (2000). 19 See, e.g., Central Hudson Gas v. Pub. Service Commn of N.Y., 447 U.S. 557 (1980) (applying mid-level protection for non-misleading commercial speech concerning lawful activities or products); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (holding unconstitutional a statute prohibiting price advertising by liquor retailers except at the point of sale). 20 See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 283 (1964) (holding that proof of actual malice is required to sustain a libel action brought by public officials against critics of their official conduct); Curtis Publg Co. v. Butts, 388 U.S. 130, 165 (1967) (Warren, C.J., concurring) (extending the New York Times standard of proof to apply to public figures as well as public officials in order to afford the necessary insulation for the fundamental interests

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as further examples of implied or penumbral speech rights, in view of the prior categorical rejection of these forms of expression.22 Justice Douglas employed analogous, non-constitutional, core/penumbra reasoning to justify third party standing for the defendant appellants,23 allowing them to assert the putative rights of married couples to be free from government investigation and prosecution for use of contraceptives during private marital sexual relations. The Justice supported this analysis by indicating: The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them.24 This rationale, and its penumbral conclusion that Griswold and Buxton could assert the claimed rights of their married clients/patients,25 went unchallenged, and we therefore can assume that it was properly accepted by all members of the Court. Similarly, unless one adopts a dangerous and unjustifiably narrow view of the Courts responsibility to interpret and enforce the Bill of Rights, the Court acts responsibly and legitimately when it finds penumbral rights that flow naturally from one of the textually explicit core rights, especially where the enforcement of the penumbral right serves to protect the core right from dilution or adverse effect.26
which the First Amendment was designed to protect). 21 See Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988) (holding public figures and officials may not recover for intentional infliction of emotional distress caused by parody without a showing of a false statement of fact which was made with actual malice[.] Chief Justice Rehnquist wrote that such a standard is necessary to give adequate breathing space to the freedoms protected by the First Amendment.) Id. 22 See the earlier traditional view of Valentine v. Chrestensen, 316 U.S. 52, 54 (1942) (holding that the First Amendment does not protect purely commercial advertising); see also Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942) (There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words[.]). Subsequently developed penumbral speech rights have sharply narrowed these categorical exceptions. See supra notes 17-21. 23 Estelle T. Griswold, Executive Director of the Planned Parenthood League of Connecticut, and C. Lee Buxton, Medical Director for the New Haven Clinic. 24 Griswold v. Connecticut, 381 U.S. 479, 481 (1965). 25 That conclusion is also supported by the fact that Griswold and Buxton were subjected to criminal prosecution, conviction and fines, and that their convictions were for aiding and abetting their clients/patients prohibited use of contraceptives. Griswold, 381 U.S. at 480. Certainly the accessory should have standing to assert that the offense which he is charged with assisting is not, or cannot constitutionally be a crime. Id. at 481. But this general proposition alone is not always sufficient. For example, one may be guilty of manslaughter for aiding and abetting a suicide even if suicide itself is no longer a crime. 26 The majority opinion is sprinkled liberally with language indicating that Justice Douglas was indeed relying on this unassailable rationale for the first order core-penumbra theory. Without those peripheral rights the specific rights would be less secure. Griswold, 381 U.S. at 482-83. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful. Id. at 483. [S]pecific guarantees in the Bill of Rights have

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Justice Douglas suggested a similar model for other provisions of the Bill of Rights,27 particularly the Third28 and Fourth29 Amendments and the portion of the Fifth Amendment protecting the accused from being compelled in any criminal case to be a witness against himself[.]30 Unfortunately, the opinion did not even give brief citations regarding penumbral rights for these amendments, as was done with respect to the First Amendment, nor did it demonstrate care in defining the contours of the penumbral rights associated with each textual clause of the Bill of Rights. Nonetheless, there are good examples of penumbral rights for the other amendments. For example, Katz v. United States31 extended the procedural protections of the Fourth Amendment to government electronic interception of private telephone conversations from a public phone booth, although the government made no physical search of the defendants person, house, papers or effects, the only items expressly protected by the core text of the Fourth Amendment. Justice Stewart, writing for the Court, asserted that the Fourth Amendment protects
penumbras, formed by emanations from those guarantees that help give them life and substance. Id. at 484. 27 Id. 28 No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. U.S. CONST. amend. III. 29 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend. IV. 30 U.S. CONST. amend. V. 31 389 U.S. 347 (1967).

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Justice Harlans influential concurrence people, not places.32 recalibrated the Fourth Amendment protection to match an individuals penumbral reasonable expectation of privacy.33 Miranda v. Arizona34 attached a penumbral protection to the Fifth Amendments Self-Incrimination Clause. Chief Justice Warren, writing for the Court, held that a suspect must be advised of his right to have counsel present during custodial interrogation, even if the suspect has not been formally charged with a crime; this right is indispensable to the protection of Fifth Amendment privilege because [t]he circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege [not to incriminate himself] by his interrogators.35 Since the textual Sixth Amendment right to counsel does not attach until a suspect is formally charged,36 it is clear that the Miranda right to counsel is completely penumbral to the core Fifth Amendment right of silence. In an entirely different context, the Supreme Court found that a penumbral notion of equality, beyond the core procedural fairness due process requirement of the Fifth Amendment, limited the federal government. Brown v. Board of Education,37 of course, held that statemandated segregated schools are inherently unequal and violate the Fourteenth Amendment Equal Protection Clause. In Bolling v. Sharpe,38 the Supreme Court was confronted with the question of whether segregation in the federally run schools of Washington, D.C. was also unconstitutional. The Sharpe Court acknowledged that there was no equal protection clause limiting the federal government in the Fifth Amendment, but asserted that the concepts of equal protection and due process . . . are not mutually exclusive and discrimination may be so unjustifiable as to be violative of due process.39 Essentially, the Court concluded that a penumbral equality notion was necessary to avoid an unthinkable result, and to protect the core fundamental fairness at the heart of due process.40 The Courts regulatory takings cases provide further examples of penumbral rights for another clause of the Fifth Amendment: nor shall private property be taken for public use, without just compensation.41
Id. at 351. Id. at 360. 384 U.S. 436 (1966). Id. at 469. See, e.g., Kirby v. Illinois, 406 U.S. 682 (1972); Texas v. Cobb, 532 U.S. 132 (2001). 347 U.S. 483, 495 (1954). 347 U.S. 497 (1954). Id. at 499. Id. at 500. Federal race-based affirmative action programs are subject to modified strict scrutiny equality analysis also as a matter of Fifth Amendment due process. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). 41 U.S. CONST. amend. V.
32 33 34 35 36 37 38 39 40

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The core textual right limits the governments eminent domain power, that is the power to seize the property and take legal title away from the private owner, and requires compensation. Less complete government interference with private property that constitutes a deprivation is subject to due process safeguards, but not necessarily to compensation. That is, all takings are deprivations, but not all deprivations are takings. The Court has found penumbral compensable takings even where there is no exercise of eminent domain under a general ad hoc case-by-case test,42 and under several categorical per se rules.43 The right to effective appointed counsel at the publics expense for indigent defendants in felony and most misdemeanor cases is an example of a penumbral Sixth Amendment right.44 That this right is truly penumbral is shown by the fact that some misdemeanor defendants are not entitled to appointed counsel, despite the textual coverage of core Sixth Amendment rights in all criminal prosecutions.45 Finally, the many special heightened procedural protections at capital sentencing hearings are penumbral rights required by the Supreme Court, relying upon the Eighth Amendment, to reduce the risk of erroneous cruel and unusual death sentences that would violate the core Eighth Amendment right.46 Once one accepts the Basic Core/Penumbra Model,47 an incremental, yet important expansion to a second order theory follows as a matter of logic. Suppose that an asserted right cannot be found in the core or penumbra of any one of the Bill of Rights, but that the asserted right can be meaningfully constructed from a number of pieces (like the pieces of a jigsaw puzzle) and that each one of those pieces can
42 See, e.g., Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922) (holding that the coal company could not be prohibited from removing their subsurface coal without compensation, though it might harm another partys house. Justice Holmes stated the rule: [W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.) Id. at 415; Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978); Lingle v. Chevron, 544 U.S. 528 (2005). 43 See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 421 (1982) (any government imposed permanent physical occupation of private property is a per se taking, even if it is minor); Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (holding a government regulation preventing an owner from building on his beach front property to be a per se taking, where his proposed building did not constitute a nuisance and where the regulation effectively denied him all economically beneficial uses of his land). 44 See Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25 (1972); Strickland v. Washington, 466 U.S. 668 (1984). 45 U.S. CONST. amend. VI; see Scott v. Illinois, 440 U.S. 367 (1979) (holding that there is no Sixth Amendment right to counsel in a misdemeanor case where the judge promises the defendant in advance that she will not go to jail even if convicted). 46 U.S. CONST. amend. VIII. See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976); Gardner v. Florida, 430 U.S. 349, 357 (1977); Presnell v. Georgia, 439 U.S. 14, 16 (1978); Eddings v. Oklahoma, 455 U.S. 104, 118 (1982) (OConnor, J., concurring); Ake v. Oklahoma, 470 U.S. 68, 87 (1985) (Burger, C.J., concurring). 47 See supra Diagram 1.

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be found in the core or penumbra of one of the clauses of the Bill of Rights. Then the asserted right is legitimate and presumptively entitled to judicial protection.48 This second order core/penumbra analytical approach will be referred to as the Sum of the Parts Model, and it can be graphically represented as follows:

The difficulty with the majority opinion in Griswold under either the Basic or the Sum of the Parts core/penumbra framework arises from the fact that the majority did not claim, and it is not clear that a convincing claim could have been made, that the fundamental right asserted was contained within the boundaries of the cores and penumbras of the cited provisions of the Bill of Rights.49 This leads to either the rejection of the majority approach or a requirement for the justification of a third order Super-Penumbral Model.50 Such an approach in effect, that the individual cores and penumbras taken together have their own larger penumbra, depends upon the unremarkable notion (relied on for the second order Sum of the Parts Model) that the different rights provisions of the Constitution should be read together, and the related notion that when this is done, the Whole
48 The Court can be most confident of this approach when most or all of the pieces of the claimed right are found in the cores of express rights; conversely the Court should be somewhat more careful or cautious as more of the pieces are found in penumbras, particularly if they are found near the outer edges of the penumbras. See infra notes 155-156, 214 and accompanying text for further discussion of these points. 49 Perhaps this is what Justice Black meant when he said that his disagreement with Justice Douglas majority opinion is a narrow one. Griswold v. Connecticut, 381 U.S. 479, 511 (1965). 50 See infra Diagram 3.

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(i.e. the total area of constitutionally protected rights) exceeds the Sum of the Parts. This method of interpreting legal texts, or other texts for that matter, is widely applied in a variety of cases. For example, it is used as a rule of construction for contracts, where the provisions are interpreted to create broader obligations when read as a whole than they do when read in isolation.51 The method is also a standard canon of statutory construction applied by courts to give the fullest possible meaning to the legislatures statutory purposes.52 There is even more reason to view a constitution as a unified whole and to try to give effect to as many of its policies and values as possible. Chief Justice Marshall stated as much in McCulloch v. Maryland, when he explained that the question of whether Congress had the power to incorporate a bank was to depend on a fair construction of the whole instrument . . . . [W]e must never forget that it is a constitution we are expounding.53 Marshall went on to state that the Banks claim, although there was no express provision for the case, was sustained on a principle which so entirely pervades the constitution . . . as to be incapable of being separated from it, without rending it into shreds.54 The Griswold majority suggested that it was indeed relying on a super-penumbral framework when it stated that the individual provisions of the Bill of Rights have penumbras,55 and that these create zones of privacy56 which, when taken together, include the specific type of relationship privacy claimed in that case.57 Additional evidence that the majority opinion endorsed a super51 See, e.g., Chicago & Nw. Ry. Co. v. Kramme, 59 N.W.2d 204 (1953) (holding that a contractor who had agreed to indemnify a railway company against liability for injury had to reimburse the company for an injured persons expenses even though the company was not actually liable to that person. The court found that the agreement to indemnify, when viewed as a whole, was in fact an absolute promise to assume and pay the necessary and reasonable expense plaintiff seeks to collect.). Id. at 206. 52 See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976) (holding that the contribution provisions of the Federal Election Campaign Act of 1971 were constitutional, but the expenditure provisions were not. Chief Justice Burger dissented in part, objecting to this piecemeal approach to statutory construction: By dissecting the Act bit by bit, and casting off vital parts, the Court fails to recognize that the whole of this Act is greater than the sum of its parts . . . . [W]hat remains after todays holding leaves no more than a shadow of what Congress contemplated. Id. at 235-6 (Burger, C.J. concurring in part and dissenting in part)) (emphasis added). 53 McCulloch v. Maryland, 17 U.S.316, 406-07 (1819) (emphasis added). 54 Id. at 426. Similarly, Justice Harlan emphasized the special significance of purpose underlying constitutional text in Poe v. Ullman, 367 U.S. 497, 544 (1961) (For it is the purposes of those guarantees and not their text, the reasons for their statement by the Framers and not the statement itself). One of the most important expressly stated animating purposes of the Constitution is to secure the blessings of liberty to ourselves and our posterity[.] U.S. CONST. pmbl. 55 Griswold, 381 U.S. 479, 484 (1965). 56 Id. 57 The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. Id. at 485.

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penumbral approach is included in its statement: In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.58 This language followed the Courts discussion of Pierce and Meyer, and generalized one level further from the penumbral rights of those two cases (respectively, parental choice of a childs education and the right to study a foreign language or any other subject). The Court inductively found a meta right, relying on several penumbras associated with core First Amendment rights, and on the proposition that these penumbras have their own larger penumbra containing the meta right. That is, the Whole (larger penumbra) is greater than the sum of the several penumbras.59 Still stronger support for the validity of a super-penumbral theory comes from Boyd v. United States.60 Boyd is cited by the Griswold majority for the proposition that the Fourth and Fifth Amendments should be read together to more broadly protect the privacies of life than they would if read separately.61 In expounding his superpenumbral interpretation of the Fourth and Fifth Amendments [running] almost into each other, Justice Bradley writing for the Boyd Court, set a particularly good example.62 He analyzed and worked out
Id. at 482. Similarly, in discussing NAACP v. Alabama, 357 U.S. 449 (1958), the Court noted that freedom of association was a peripheral (or penumbral) right and, as a penumbra to that penumbra, the Court protected the privacy of the associations membership list against state compelled disclosure as entailing the likelihood of a substantial restraint upon the exercise by petititioners members of their right to freedom of association. Id. at. 483 (quoting NAACP, 357 U.S. at 462). 60 116 U.S. 616 (1886). 61 381 U.S. at 484 and accompanying footnote (quoting Boyd, 116 U.S. at 630, The principles [described by Lord Camden in Entick v. Carrington, [1765]19 How. St. Tr. 1029 K.B. Ct.C.P.] . . . apply to all invasions on the part of the government and its employees of the sanctity of a mans home and the privacies of life. The invasion in Boyd was a request that the defendant, accused of shipping cases of plate glass in violation of the customs laws, produce an invoice for 29 of the cases. Boyd, 116 U.S. at 618. The particular law to which the defendant objected held that if any business book, invoice, or paper belonging to . . . the defendant . . . will tend to prove any allegation made by the United States, and the defendant failed to produce such papers on request, the allegations . . . shall be taken as confessed, unless his failure or refusal to produce the same shall be explained to the satisfaction of the court. Id. at 619-20. The Court found this compulsory production, while it lacked certain aggravating incidents of actual search and seizure, achieved the substantial object of those acts in forcing from a party evidence against himself, and thus fell within the scope of the Fourth and Fifth Amendments. Id. at 622. 62 Id. at 630. Bradley stated that the essence of Lord Camdens Carrington opinion was that it described an indefeasible right of personal security, personal liberty and private property, and that in protecting that right, the fourth and fifth amendments run almost into each other. Id. In other words, when the Fourth and Fifth Amendment prohibitions against unreasonable seizures and self-incriminations are read together, they suggest an indefeasible right that is broader than the text of either amendment might suggest if it was read alone. Later on Bradley provides a further rationale for such a construction: [T]he two amendments . . . throw great light on each other. For the unreasonable
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the scope of the interplay between the Fourth and Fifth Amendments and their combined application to the Boyd facts, carefully utilizing constitutional text, history, the framers experience, precedent, logic and the values implicit from these sources.63 Decades later, Justice Brandeis declared that Boyd was a case that will be remembered as long as civil liberty lives in the United States . . . which in giving effect to the principle underlying the Fourth Amendment . . . refused to place an unduly literal construction upon it.64 Some of the Supreme Courts most intriguing individual rights decisions rely on a composite or hybrid rights approach, similar to Boyd, where the whole right is more potent than the sum of its constituent parts. For example, Stanley v. Georgia65 found constitutional protection for an adults possession of obscene films in the privacy of his home despite the fact that a majority of the Court considers obscenity to be categorically excluded from First Amendment protection,66 and even though the significant privacy of the home does not create a general sanctuary exempt from law enforcement intrusions so long as there is compliance with Fourth Amendment procedural

searches and seizures condemned in the fourth amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the fifth amendment; and [this kind of compelled selfincrimination] throws light on the question as to what is an unreasonable search and seizure within the meaning of the fourth amendment. Id. at 633. 63 For example, Bradley justified his reliance on Lord Camdens Carrington opinion by noting its historical significance as: on [sic] of the landmarks of English liberty . . . applauded by lovers of liberty in the colonies as well as in the mother country . . . Can we doubt that when the fourth and fifth amendments to the constitution of the United States were penned and adopted, the language of Lord CAMDEN was relied on as expressing the true doctrine on the subject of searches and seizures, and as furnishing the true criteria of the reasonable and unreasonable character of such seizures? Id. at 626, 630. The same overarching concept of liberty, Bradley argued, was written into both the Fourth and Fifth Amendments. Id. 64 Olmstead v. United States, 277 U.S. 438, 474, 476 (1928) (Brandeis, J. dissenting). Brandeis was only partly correct; while Boyd retains its intellectual appeal as an example of super-penumbral reasoning, it has lost much of its force as law. See, e.g., Fisher v. United States, 425 U.S. 391, 407 (1976) (holding that a summons directing taxpayers to produce documents created by their accountants for the accountants preparation of their tax returns does not violate the Fifth Amendment since the documents did not contain the taxpayers own compelled testimonial communications; Several of Boyds express or implicit declarations have not stood the test of time.); Andresen v. Maryland, 427 U.S. 463 (1976) (holding that a valid search warrant for incriminating testimonial papers in petitioners law and corporate office per force does not violate the Fourth Amendment, and does not violate the Fifth Amendment either since the search does not constitute compulsion on the individual to produce the papers); see also Robert S. Gerstein, The Demise of Boyd: Self-Incrimination and Private Papers in the Burger Court, 27 UCLA. L. REV. 343 (1979). 65 394 U.S. 557, 559 (1969). 66 See, e.g., Miller v. California, 413 U.S. 15 (1973).

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requirements.67 Clearly, neither amendment by itself, even when augmented with its penumbral rights, would have been sufficient. Stanley prevailed only through the greater composite of the two provisions and their penumbral concerns. Griswold is quite similar in that the fundamental right is a combination of the privacies of place, the home and especially the marital bedroom, together with personal autonomy and control of ones own body, intimate marital relations and procreation.68 A growing number of other cases decided by the Supreme Court also rely on composite or hybrid rights as the basis for ruling in favor of the individual and against the constitutionality of a variety of state policies restricting individual freedom.69 In Yoder, the Court relied principally on a penumbral aspect of the First Amendments Free Exercise of Religion Clause and upheld the right of Amish parents to remove their children from school altogether after the eighth grade in contravention of Wisconsins facially neutral compulsory attendance law. Nonetheless, the Court later justified Yoder and its result as a
67 See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961) (also involving obscene films); Illinois v. Gates, 462 U.S. 213 (1983). 68 Plyler v. Doe, 457 U.S. 202 (1982) is another important case utilizing a composite or hybrid rights approach. The majority in Plyler applied heightened mid-level equal protection scrutiny to overturn the Texas policy of excluding children of undocumented aliens from free public education. Id. at 239. The Court combined the factors of the childrens involuntary illegal status with the importance of education to form a quasi-suspect/quasi-fundamental hybrid right, but notably did not find either that this class of children was suspect or that education was a fundamental right. Id. at 221. Neither factor alone would have been sufficient for the children to prevail. Cf. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (holding that publicly funded K-12 education is not a fundamental right for Due Process of Equal Protection purposes, and refusing to strike Texass local property tax funding system that left different school districts with greatly disparate per pupil funding). 69 Other cases where composite/hybrid rights were, or may have been, necessary to the Courts results include inter alia Wisconsin v. Yoder, 406 U.S. 205 (1972) (combining free exercise of religion with the right to control the education of ones children); Cantwell v. Connecticut, 310 U.S. 296 (1940) (combining freedom of even offensive speech and freedom of religion); Wooley v. Maynard, 430 U.S. 705 (1977) and West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (combining the penumbral right not to speak with freedom of religion); Meyer v. Nebraska, 262 U.S. 390 (1923) (combining the penumbral rights of the teacher to teach and the student to learn a modern language, and the parents to control their childrens education); Loving v. Virginia, 388 U.S. 1 (1967) (combining race equality with the freedom to marry an eligible partner of ones choice); Roberts v. Jaycees, 468 U.S. 609 (1984) (suggesting that a combination of the penumbral rights of expressive association and choosing individuals for intimate relationships would form a powerful composite right); Lawrence v. Texas, 539 U.S. 558, 562 (2003) (like Griswold combining protection of dwellings and other private places with an autonomy of self that includes . . . certain intimate conduct); Washington v. Glucksberg, 521 U.S. 702, 716, 720, 725 (1997) (exploring the combination of the right to refuse unwanted medical treatment with a potentially emerging penumbral right to protect dignity and independence at the end of life); see also id. at 743. (Stevens, J. concurring in the Courts judgments in Glucksberg and Vacco v. Quill, 521 U.S. 793 (1997) (This freedom embraces not merely a persons right to refuse a particular kind of unwanted treatment, but also her interest in dignity, and in determining the character of the memories that will survive long after her death.).

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hybrid situation involving a free exercise claim coupled with a claim of the right of parents . . . to direct the education of their children.70 The Smith Court distinguished Yoder and refused to recognize a constitutional exemption to Oregons generally applicable criminal peyote prohibition based solely on Smiths free exercise of religion claim, unaccompanied by another component right.71 This, together with the indisputable fact that a state requirement demanding children be reasonably educated trumps parental refusal based solely on control over their childrens upbringing, demonstrates that neither Yoder claim by itself would have been sufficient. The Amish parents prevailed on the strength of the greater combined or hybrid right, at least as Yoder is explained in Smith.72 Finally, one of the better examples of a composite/hybrid right that clearly reflects a Super-Penumbral or Whole is Greater than the Sum of Its Parts approach is the right to travel. The elements of this right come from many sources, among them the penumbral Dormant Commerce Clause,73 the Commerce Clause itself (especially as enforced by Congress in the 1964 civil rights laws),74 pre-Constitutional documents,75 structural implications from the Constitution,76 the First Amendment right to petition the Government for a redress of grievances[,] Equal Protection,77 the Citizenship Clause of the Fourteenth Amendment78 together with the Privileges and Immunities Clause of Article IV, 2, or with the Fourteenth Amendment Privileges or Immunities Clause.79 Clearly, the strength of the right to travel or migrate is greatly enhanced by its multi-source composite character, as

Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 881-82 (1990). Id. at 882 (The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right.). 72 One need not necessarily agree with the Smith Courts refusal to apply strict scrutiny, or with its result denying members of the Native American Church a constitutional exemption for their sacramental use of peyote, to appreciate the validity of the Courts necessary proposition that the strength of a composite or hybrid right is greater than either of its components, and also greater than the sum of the two components. 73 Edwards v. California, 314 U.S. 160 (1941). 74 See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964). 75 See especially the rights of ingress and regress to and from each State guaranteed by express provision in the Articles of Confederation, Art. IV. 76 See, e.g., United States v. Guest, 383 U.S. 745, 758 (1966) (suggesting that although the right to travel finds no explicit mention in the Constitution[,] . . . freedom to travel throughout the United States . . . [is] a necessary concomitant of the stronger Union the Constitution created.); Crandall v. Nevada, 73 U.S. 35 (1868). 77 See, e.g., Shapiro v. Thompson, 394 U.S. 618 (1969); Zobel v. Williams, 457 U.S. 55 (1982). 78 Edwards, 314 U.S. at 181 (Douglas, J., concurring) (The conclusion that the right of free movement is a right of national citizenship stands on firm historical ground.). 79 See Saenz v. Roe, 526 U.S. 489 (1999); cf. United Bldg. & Constr. Trades Council v. Camden, 465 U.S. 208 (1984).

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evinced by the declaration in Saenz that the right may be even more powerful than a fundamental right protected by strict scrutiny.80 All of these decisions, especially the ones that have been broadly accepted, add significant weight to a Whole is Greater than the Sum of Its Parts or Super-Penumbral Model.

Of course not every composite claim of right will prevail.81 This may be a proper result when the claim is rejected by a court conscientiously applying the Super-Penumbral Model, but not finding the right. The denial of the claim, on the other hand, is quite troubling when a court neglects to apply the model altogether. B. Alternative Views of the Griswold Majoritys Implied Rights Analytical Framework

Alternative A: Justice Douglas fleetingly suggested another way to

80 Saenz, 526 U.S. at 504 (Neither mere rationality nor some intermediate standard of review should be used . . . . The appropriate standard may be more categorical than that articulated in Shapiro, . . . but it is surely no less strict.). 81 See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (permitting the search of a University newspaper office with a valid warrant, and rejecting the composite First Amendment free press and Fourth Amendment privacy proposal for a subpoena-first requirement absent suspicion that the newspaper was itself involved in criminal activity). Interestingly, Congress responded unfavorably to this limited interpretation and legislatively granted conditional subpoena-first protection for newspaper, publishing and media entities. Privacy Protection Act of 1980, 42 U.S.C. 2000aa, et. seq. (1996); see also Fisher v. United States, 425 U.S. 391, 407 (1976) and Andresen v. Maryland, 427 U.S. 463 (1976) (implicitly rejecting composite Fourth and Fifth Amendment claims).

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visualize or think about the super-penumbral, or the whole is greater than the sum of its parts idea. He wrote cryptically, Various guarantees create zones of privacy . . . . The Third Amendment in its prohibition . . . is another facet of that privacy.82 Any complex system of ideas, or a three dimensional crystalline object such as a diamond, has many facets. The diamond, or the whole body of knowledge, or a complete system of rights, contains all of its own facets, but the combination of any finite subset of the facets does not equal the whole. If enough of the right facets are selected and studied carefully, however, they will suggest a close approximation of the whole, and allow us to appreciate the greater essence of the whole. Justice Douglass implication in Griswold is that the particular zones of privacy (facets) together give rise to a still broader or more complete privacythat is, a super-penumbral right beyond the sum of the individual penumbral rights.83 While a Facet Model is a perfectly reasonable approach in principle, Justice Douglas did not begin to give it a proper justification, even assuming that he had such a model in mind. A conscientious effort to use this model would require the careful demarcation of all relevant known facets (known rights), and the careful construction of the implied rights structure of the assumed crystalline whole. It would not be nearly enough to intone general notions of privacy; instead it would be necessary to define the new right with precision and to show that it was very likely to be part of the completed crystal structure.

Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (emphasis added). See Diagram 4 for a pictorial depiction of the Facet Model; see supra Diagram 3, to compare the Super-Penumbral or Whole is Greater than the Sum of Its Parts Model.

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Alternative B: There is an even more useful alternative to the sunny-side-up eggs diagram for the super-penumbral analytical framework gleaned from the majority opinion in Griswold. Under this alternative model, the individual clauses of the Bill of Rights are concrete and specific examples of more comprehensive and general rights that the Constitution protects. The Court would first use an inductive process to work from the catalog of specific examples toward a list of more general rights, with contour and shape, based on discoverable transcendental values behind the specific constitutional text. Next, the Court would more deductively apply these meta rights to the new facts and circumstances of each case, and determine whether the previously unrecognized, and not textually apparent, but claimed fundamental right exists. I will refer to this alternative model and its associated pictorial representation as the Meta Up and Down Model.84 This framework is not as esoteric as it sounds. A more prosaic example may help illustrate the validity and practicality of this approach. Suppose a person with no prior knowledge of the subject is given an apple, a watermelon, a pear, a Valencia orange, a lemon, and a kiwi, and then she is handed a grape and asked if the grape is one of those.85 At first blush, the person may be inclined to respond negatively since no grape was included in the six exemplars. If she successfully resists the temptation to respond so quickly and literally, the next step will be to consider the characteristics of the six examples and the grape more closely to determine if there are enough significant similarities and few enough or no material dissimilarities. The wise individual will construct a more general or meta-category with certain defining characteristics from the six examples given, and then apply this category and its characteristics to see if the grape is indeed one of those. If the interlocutor had in mind fruit as the general category represented by the six examples, and the respondent correctly identified the significant characteristics of the examples as those of fruit, then both would agree that the grape was indeed one of those.86
See infra Diagram 5. I basically mean is it a fruit?, but I have intentionally chosen one of those instead, for its inherent ambiguity and to more closely model the constitutional problem I am discussing. The grape cannot literally be one of those since it is not on the list. But, a navel or mandarin orange would be one of those by a simple first order analogy to the listed orange; a grapefruit would qualify in a slightly more complex analogy to the orange and the lemon as another citrus; and at a still greater level of generality and analogy the grape qualifies as a fruit. Still further levels of generality are possible, e.g. edible plants, plants or all living things, that would respectively allow a potato, a tree or the family cat to qualify, but it would seem strange to have given only fruits as examples if the correct category was intended to be that much more general and different in kind, not just in degree, from the examples. 86 If, as I argue, this theory of rights is correct, it does not follow that there is a talismanic formula for determining specific rights. In fact, Goedels Theorem about complex mathematical systems is at least evocative in suggesting that in any interesting system of rights the illusory goal of mechanistically provable rights will always be unreachable. What is required of courts instead,
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This is essentially what I mean by the Meta Up and Down Model.

is the hard, less glamorous work of wrestling conscientiously with imperfect sources and methods and applying large dollops of patience, experience, humility and judgment.

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Two questions immediately arise about the model proposed in Diagram 5: 1. Is there any evidence that the Griswold majority had such a model in mind? Truthfully, there is only a little, and it is demonstrated as the opinion moves from the specific concrete examples of the textual rights clauses cited up to more general zones of privacy, and then back down to apply these zones of privacy to find and endorse the concrete putative fundamental right claimed under the facts and circumstances of the case.87 Since my primary aim is not to ascribe credit or blame to individual opinions or justices for the different analytical models, but to find plausible models wherever their underpinnings appear, this is not a serious matter. 2. The second question, of far greater moment, is why would the framers possibly have chosen this apparently opaque approach to communicate fundamental rights? There are a number of plausible answers, and it is useful to return to a slightly modified version of the fruit analogy to explore them. Instead of a general Socratic interlocutor and respondent, think of the participants as a parent or teacher and a child in the process of acquiring language, specific knowledge and models of how the world works. The parent or teacher, desirous of teaching the child the ability to find and recognize fruits (presumably also distinguishing between edible and inedible ones), could of course present the child with a continuous string of examples of edible fruits, making clear that they were indeed edible fruits. That is, after presenting the first six examples, the parent would present the grape, then a cantaloupe, then a banana, and on and on, each time making clear that the new object was an edible fruit. (In the constitutional sense, the analogy would be for the framers, while drafting the Bill of Rights, to have added a potentially lengthy catalogue of other examples of rights, including the right contended for in
87 See supra text accompanying notes 55-59 for support that the majority does move up inductively from concrete examples of rights to more general, meta rights, described as aspects of zones of privacy[,] Griswold, 381 U.S. at 484, of these penumbral rights of privacy and repose. Id. at 485 (quoting Breard v. Alexandria, 341 U.S. 622, 626 (1951)). The majority then appears to move back down to deduce, albeit cursorily, a concrete right of marital intimacy privacy: Marriage is . . . intimate to the degree of being sacred . . . an association for as noble a purpose as any involved in our prior decisions. Griswold, 381 U.S. at 486. The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Id. at 485. Or, to put it another way, the Meta principle is fruit, induced from the specific examples which are all fruits; by looking at these examples and petitioners claim, we can see that the instant case also concerns a fruit.

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Griswold, if they had intended such a claim of right to be protected.) The problem, of course, is that the teachers (and arguably the constitutional framers) job would be endless, especially if fruit was only one of many topics to be covered, and the child would not be well equipped to recognize a previously unseen and untaught edible fruit for what it was.88 The child would soon become bored with this mechanical rote form of learning and either quit, or construct her own abstract models of fruit or edible fruit. Lacking experience and guidance, these models would probably be quite imperfect and both under- and over-inclusive. Another problem with this teaching method is that the child is limited to the parent/teachers knowledge and is not equipped to adapt to new facts and circumstances.89 The parent will not know every fruit in the world, and some fruits may not even have been found or developed yet.90 A contrasting teaching approach would be to dispense with the concrete examples entirely and provide the child directly with an abstract model, that is with the generic characteristics of (edible) fruit. In principle, this would work wonderfully well and allow the child to come upon a new object and determine whether it was a fruit by analysis and deduction. But, in practical application, problems also abound with this approach. A complete abstract model may not be available, known or understood. Even if such a model exists, and is understood by the teacher, it may not be easily communicated, understood or applied by the child. For complex systems of knowledge, such as a constitutional system of rights, the problems with a purely abstract definition divorced from practical experience become more severe. Consider for example, the human genome project, a research

Consider Chief Justice Marshalls analogous comments in McCulloch v. Maryland: A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. 17 U.S. 316, 407 (1819). 89 In the societal analog, this would be a fatal constitutional flaw. Among the most essential elements of constitutional structure is to frame a society capable of creating, adapting to and embracing constructive change. Static societies are condemned to fail just as are chaotic ones. 90 This is hardly fanciful given the long history of discovery, horticultural cross-breeding and more recent dramatic advances in bioengineering. The constitutionally analogous position confronting the framers is self-evident. And it is primarily for this reason that justices and commentators have properly attributed an organic, adaptable quality to the Constitution, allowing it to serve for the ages, rather than suffering the limitingand ultimately fatalbrittleness of undue precision and completeness. See, e.g., McCulloch: This . . . constitution [is] intended to endure for ages to come and, consequently, to be adapted to the various crises of human affairs . . . . It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. 17 U.S. at 415 (emphasis added).

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effort to fully map the genetic code of human beings.91 A complete genetic description of a person, or thorough mastery of the biochemical theory of his DNA, would hardly help one to actually recognize that person on the street, or even to know that it was the description of a person and not a childs or a foreign enemys secret code. Despite the flaws in both purely mechanistic and purely theoretical teaching methods, many a parent and child have naturally and easily transferred and absorbed the essential knowledge about fruit without being able to give a generic definition of fruit, let alone one that is scientifically accurate. Humans have a most difficult time with pure abstract theory divorced from experience.92 They seem to function much better when their learning is active (where they are involved in creating and testing their own abstract models and applying them) and when they are moving back and forth between theory and practice. And so the child, or even the sophisticated adult, or the constitutional society, may in the end receive usable knowledge (transcendental constitutional values and methods for their proper application) most effectively and accurately when that knowledge is communicated first through a series of concrete historically relevant examples, followed by more general theoretical principles. Furthermore, an insistence on the availability of at least some historically rooted concrete examples reduces the risk of a massive mistake of miscommunication. Jurassic Park would have us believe that a few tweaks to the abstract genetic code strings could turn an embryo from current fauna into a dinosaur.93 In other words, a little mistake in the abstract definition, or in its application, could lead to a big mistake in result. Yet no child having seen and experienced a few examples, would mistake a tree for a fruit, or a dinosaur for a man.

91 See Human Genome Project Information website, http://www.ornl.gov/sci/techresources/ Human_Genome/home.shtml. 92 The framers understood this truth, and limited the judicial function to concrete cases or controversies, U.S. CONST. art. III, 2, inter alia, prohibiting the courts from issuing purely theoretical advisory opinions; see Rescue Army v. Mun. Ct. of Los Angeles, 331 U.S. 549, 568 (1947) (The earliest exemplifications [of the courts being restricted to concrete situations] arose in the Courts refusal to render advisory opinions.); see also OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (Dover Publications 1991) (wherein Holmes makes arguably his most famous statement: It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic; it has been experience.); William J. Brennan, Jr., Reason, Passion, and the Progress of the Law, 10 CARDOZO L. REV. 3, 10 (1988) ([H]uman experience [is] the realm in which law ultimately operates and has meaning and awareness of the range of human experience, is therefore not only an inevitable but a desirable part of the judicial process). 93 MICHAEL CRICHTON, JURASSIC PARK (Ballantine Books 1990); see also JARED DIAMOND, THE THIRD CHIMPANZEE: THE EVOLUTION AND FUTURE OF THE HUMAN ANIMAL 23 (HarperCollins Publishers 1992) (noting that we as humans share 98.4% of our DNA with chimps, and therefore the visible distinctions between us must be concentrated in a mere 1.6 percent of our genetic program).

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All of this suggests that the best approach to defining and communicating a workable system of fruit or rights would involve a combination of concrete examples94 and more abstract characteristics or values,95 with a feedback mechanism between them to allow the child or the constitutional society to continually refine and develop theory and check reality.96 The Meta Up and Down Model conforms to this aspect of human intelligence and therefore has a lot to recommend it, though its derivation from the Griswold majority opinion is a bit tenuous. To the extent that the model is based solely on the Griswold majority opinion, it will prove too limited. The defect is in relying only on the framers concrete examples and eschewing the more abstract, but still textual, values that we should expect to find in the Constitution if this model is indeed true to the spirit and design of our constitutionalism.97 These more conceptual kinds of provisions (to borrow the language of Ronald Dworkin),98 like liberty and due process, privileges and
94 Such as the specific provisions of the Bill of Rights. Counterexamples are also useful to help demark the outer boundaries of protected rights. This is what the Justices have in mind when they refer to practices, texts and traditions considered and rejected during the founding period. See Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting) (stating that the search for unenumerated fundamental rights requires regard [for] what history teaches are the traditions from which [this country] developed as well as the traditions from which it broke). 95 See supra note 88 quoting Chief Justice Marshall in McCulloch v. Maryland. Justice Marshall continued: [The constitutions] nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. McCulloch v. Maryland, 17 U.S. 316, 407 (1819). 96 Stephen Kanter, Dealing With Death: The Constitutionality of Capital Punishment in Oregon, 16 WILLAMETTE L. REV. 1, 33-34 (1979) [hereinafter Kanter, Dealing With Death]: Every constitution must be read as a whole. When this is done, the structure of the constitution and the juxtaposition of different provisions will create a feedback mechanism that will have the effect of breathing substantive form into individual provisions that may, by themselves and taken out of context, seem to be formless. See also infra notes 324 and 356-358 and accompanying text. 97 See John Marshalls great structural exegesis of the sources and limits of federal and state power in McCulloch for an invocation of the spirit of the constitution: Let the end be legitimate, let it be within the scope of the constitution, and all means . . . which . . . consist with the letter and spirit of the constitution, are constitutional. 17 U.S. at 421 (emphasis added). 98 See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 134-36 (Harvard University Press 1977). Dworkin notes that certain clauses of the Constitution appeal to moral concepts, or general ideas and principles, as opposed to particular conceptions, or specific examples of how these principles should be applied. Id.; see also RONALD DWORKIN, LAWS EMPIRE 71 (Harvard University Press, 1986) (discussing the difference between concept and conception as a contrast between levels of abstraction at which the interpretation of the practice can be studied). Other authors refer to such clauses as open-textured. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 13 (Harvard University Press 1980) (describing open-textured provisions as those which seem . . . insistently to call for a reference to sources beyond the document itself and a framers dictionary). I prefer Dworkins language, as I agree with him that while these types of constitutional provisions refer to more abstract, general or meta principles, they are not vague or ambiguous in expressing their concepts and underlying

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immunities, equal protection, cruel and unusual, and unreasonable, do appear in the Constitution, and I will say more about them and their relevance to an improved Up and Down Model later.99 II. TWO DIFFERENT CONCURRING VIEWS IN GRISWOLD The analytical frameworks discussed in the concurring opinions of Justices Goldberg and Harlan diverge markedly from the majority opinion and from each other. Each opinion, although subject to its own limitations, offers something new and useful toward constructing a valid comprehensive theoretical model for identifying unenumerated fundamental rights. A. The Goldberg Variations:100 A Concurring Opinion and the Ninth Amendment

Justice Goldberg, concurring in Griswold,101 joined the majoritys opinion and judgment.102 In addition, he articulated variations from the majority opinion, relying heavily on the Ninth Amendment103 as an explicit textual signpost authorizing the Court to search for judicially enforceable fundamental rights outside the confines of the specific provisions of the Bill of Rights.104 Contrary to the claims of his critics,105 Justice Goldberg does not
transcendental constitutional values. 99 See infra notes 329 and 355-356 and accompanying text. 100 With apologies to Bach. 101 Griswold v. Connecticut, 381 U.S. 479, 486-99 (1965). Chief Justice Warren and Justice Brennan joined Justice Goldbergs concurring opinion. 102 Id. at 486. 103 The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. U.S. CONST. amend. IX. Justice Douglas, after his brief discussion of the creation of zones of privacy by the penumbras of the First, Third, Fourth, and part of the Fifth Amendments, also quoted the Ninth Amendment in full and cited it, but, in contrast to Justice Goldberg, said nothing further about it and did not explain in what way, if any, he was relying on it in his majority opinion. Griswold, 381 U.S. at 484. 104 See infra Diagram 6. 105 See, e.g., Raoul Berger, The Ninth Amendment, 66 CORNELL L. REV. 1, 2 (1981) (claiming that Justice Goldberg would transform the ninth amendment into a bottomless well in which the judiciary can dip for the formation of undreamed of rights in their limitless discretion); see also Thomas B. McAffee, A Critical Guide to the Ninth Amendment, 69 TEMP. L. REV. 61, 61 n. 7 (1996) (refusing to resolve the question of whether Justice Goldberg viewed the ninth amendment as an actual source of fundamental constitutional rights, or merely as a textual allusion to nontextual rights, based upon an erroneous assertion that Justice Goldbergs opinion is uncertain as to which of these two positions it takes); Burt Neuborne, The House Was Quiet and the World Was Calm The Reader Became the Book: Reading the Bill of Rights as a Poem: An Essay in Honor of the Fifthieth Anniversary of Brown v. Board of Education, 57 VAND. L.

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contend that the Ninth Amendment is itself a repository of non-textual, specific rights,106 but rather that it is an important marker telling the Court that there are rights worthy of judicial protection beyond those specifically contained in the Bill of Rights.107 In this view, the Ninth Amendment serves as an Etc. clause after the first eight amendments, proclaiming other rights exist out there somewhere. It is as if the first eight amendments are house addresses progressing along a street toward an apparent cul-de-sac. When the driver stops the Courts car after the last house, the justices find a prominent sign pointing to meandering walking paths spreading out from the apparent cul-de-sac, with the words: There are more legitimate houses out there. You are authorized to take the constitutional footpaths through the woods to seek them out.

REV. 2007, 2039 n. 101 (2004) (contending that Justice Goldbergs opinion is more consistent with construing the Ninth Amendment as a source of substantive rights). 106 Griswold, 381 U.S. at 492 (Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government.). 107 Justice Goldberg includes at least seven separate statements to this effect in his opinion, thus emphasizing his viewpoint: The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. Id. at 488; These statements of Madison and Story make clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people. Id. at 490; [A] judicial construction that this fundamental right is not protected . . . because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment[.] Id. at 491-92 (emphasis added); [T]he Ninth Amendment shows a belief of the Constitutions authors that fundamental rights exist that are not expressly enumerated[.] Id. at 492; The Ninth Amendment simply shows the intent of the Constitutions authors that other fundamental personal rights should not be denied . . . or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. Id. at 492; [T]he Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights[.] Id. at 493; [T]he Ninth Amendment expressly recognizes [that] there are fundamental personal rights . . . which are protected from abridgment by the Government though not specifically mentioned in the Constitution. Id. at 496.

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This interpretation of the Ninth Amendment is rather modest and does not offer a talismanic or mechanistic solution to any specifically asserted right or actual case. Yet it plays an important textual role in undergirding theories, inter alia, of Super-Penumbral, Up and Down, fundamental, unenumerated, open-textured, natural, or organic rights. And it frees our constitutional jurisprudence from the competing, overly constrained, strict textualist and strict originalist theories of rights.108 Furthermore, the use of the word construed in the Ninth Amendment supports a central institutional role for the courts in finding
108 Strict textualists maintain that the court should rely only on the letter of the constitutional text when adjudicating constitutional claims. (In the popular vernacular, strict textualists and strict originalists are cousins to strict constructionists). As with any theory of interpretation, there are gradations of approach among adherents as to how rigidly the theory should be applied. On the current Supreme Court, Justices Scalia and Thomas champion a moderately strict version of textualism and originalism. They frequently reject claims of right that they do not perceive to be adequately grounded (or hardwired) in the text. See, e.g., Cruzan v. Director, Mo. Dept of Health, 497 U.S. 261, 300 (1990) (Scalia, J., concurring) (rejecting a right-to-die claim because the Constitution has nothing to say about the subject); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 980 (1992) (Scalia, J., dissenting) (rejecting a womans right to an abortion because the Constitution says absolutely nothing about it); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (Amy Gutmann ed., 1997); Nancie G. Marzulla, The Textualism of Clarence Thomas: Anchoring the Supreme Courts Property Rights Jurisprudence to the Constitution, 10 AM. U. J. GENDER SOC. POLY & L. 351 (2002) (discussing Justice Thomas fidelity to the text of the Constitution); see also Caleb Nelson, What is Textualism?, 91 VA. L. REV. 347, 348 (2005); John F. Manning, Textualism and Legislative Intent, 91 VA. L. REV. 419 (2005). See generally Symposium: Textualism and the Constitution, 66 GEO. WASH. L. REV. 1081, 1081-1394 (1998) (containing defenses and critiques of textualism in relation to a variety of constitutional issues by a number of leading constitutional theorists); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204 (1980), offers a particularly effective critique of strict originalism and strict textualism, but Professor Brest goes too far in calling for true non-originalism in some cases. Id. at 204-05, and 224-38.

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and enforcing these additional rights.109 In fact, that amendments text, to wit shall not be construed[,] combined with the Article VI Supremacy Clause assertion that the Constitution is the supreme Law of the Land[,] are among the most direct of the framers statements in the Constitution supporting judicial review power for the courts, especially relating to the enforcement of individual rights against the contrary decisions of the majoritarian branches of government. Given the congruence of the Sign Post Interpretation Model with the text of the Ninth Amendment, it is surprising how mightily critics of the Goldberg opinion strive to undercut it, often setting up straw interpretations of the Ninth Amendment that go way beyond the concepts represented by the model in order to knock them down.110 A cynic might conclude that some of the critics are disingenuous and that their real agenda is to limit active judicial efforts to search for and enforce individual rights, regardless of inconvenient constitutional facts like the Ninth Amendment. But the motivation of a particular theorys critics is immaterial. Instead, the task is to explore possible reasonable objections to the Ninth Amendment Model and determine whether these objections withstand analysis. 1. The Original Purpose Objection

The Constitution of the United States, drafted in 1787 and ratified in 1789, did not contain a bill of rights. There was a serious split of
109 Construing is the natural business of courts, especially in the American system, and much less so for legislatures, executive officials, the states or the people. Chief Justice Marshall made much the same point as an institutional justification for judicial review when he said: It is emphatically the province and duty of the judicial department to say what the law is. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). 110 See supra notes 105 and 106. Another one of the straw arguments, often repeated, is that Justice Goldberg was incorporating the Ninth Amendment against the States; see, e.g., Raoul Berger, The Ninth Amendment, 66 CORNELL L. REV. 1, 12 (1981) claiming that Justice Goldberg was incorporating the Ninth Amendment and stating: Possibly I do not appreciate the subtle differentiation between incorporation of the ninth amendment in the fourteenth and enforcement of unspecified rights retained under the ninth by resort to the liberty of the fourteenth, but to my mind the distinction is purely semantic. Let me therefore reiterate that the argument that the Bill of Rights [including the ninth amendment] was incorporated in the fourteenth amendment is without historical warrant[.] Id.; see also Russell L. Caplan, The History and Meaning of the Ninth Amendment, 69 VA. L. REV. 223, 261-62 (1983) (arguing that the Ninth Amendment was intended to protect the state bills of rights, and therefore it is not logically possible to incorporate the ninth amendment through the fourteenth to apply as a prohibition against the states); Lawrence E. Mitchell, The Ninth Amendment and the Jurisprudence of Original Intention, 74 GEO. L. J. 1719, 1730-31 (1986). Justice Goldberg anticipated and responded directly to these charges that he was incorporating the Ninth Amendment in his Griswold concurrence: I do not mean to imply that the Ninth Amendment is applied against the States by the Fourteenth. Griswold v. Conneccticut, 381 U.S. 479, 492 (1965).

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views among the framers as to whether such a listing of rights was necessary, desirable or even dangerous. Alexander Hamilton took the most prominent position against such provisions and argued in the Federalist Papers that such a bill of rights would be unnecessary since the federal government was established by the Constitution as a limited government confined to its constitutionally delegated powers, and those powers did not extend to the infringement of individual rights.111 Justice Goldberg also quoted Hamilton in the same source for Hamiltons further, and more serious, argument against a bill of rights: that such provisions would even be dangerous.112 In Hamiltons view, since thou shalt not provisions of a bill of rights would contain various exceptions to powers that the federal government constitutionally did not have in the first place, the absence of other thou shalt not limitations on the federal government might imply that the government had other dangerous powers not delegated by the Constitution.113 James Madison disagreed with Hamilton, and argued for inclusion of a bill of rights.114 The ratification struggle proved the political necessity for a declaration of constitutional rights, and Madisons view prevailed over Hamiltons objections. Proponents of the Constitution promised the states ratifying conventions that if they voted to approve the Constitution, the first Congress would propose and refer bill of rights amendments. If the Ninth, or the Ninth and the Tenth, Amendment(s) were included in the Bill of Rights solely to address the problem presented by Hamiltons second argument, that a Bill of Rights might dangerously inflate federal government powers,115 an objection to any interpretation
111 See THE FEDERALIST NO. 84, at 578-79 (Alexander Hamilton) (Jacob E. Cooke ed., 1961), cited by Justice Goldberg for Hamiltons position on this matter. 381 U.S. at 489 n. 4. 112 Id. 113 Id. 114 Madison favored inclusion for a number of reasons. He stated that bills of right have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, and were thus one means to check the unjust acts of a majority faction. James Madison, Speech to the House Explaining His Proposed Amendments With Notes for the Amendments Speech, reprinted in THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT, 58 (Randy Barnett, ed.. George Mason University Press 1989). Madison noted that they were highly politic, for the tranquility of the public mind, and the stability of the Government[.] Id. at 61. But Madison did not favor a bill of rights for merely symbolic or popular reasons; importantly he also understood and desired that they would empower the courts and add rights that would be judicially enforceable. If [provisions of rights] are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Id. at 60-61. 115 Justice Stewart would adopt just such a limited view of the Ninth and Tenth Amendments.

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of the Ninth Amendment going beyond a reaffirmation of the principle that the federal government is limited to its delegated powers116 would have to be taken seriously. But such a demonstration is not tenable. The Tenth Amendment by itself reaffirms the limited nature of the national government,117 and there would be no need for the Ninth Amendment if this had been the framers only goal.118 Even if the framers had been far less parsimonious with constitutional words than they were, and wanted to make doubly sure that the listing of some rights did not lead to implied flip-side governmental powers from the absence of other express limitations, the second clause of the Ninth Amendment would logically be written as follows: and the absence of other express limitations on the United States shall not be construed to expand the powers of the United States. Instead the founders chose
Griswold, 381 U.S. at 529-30 (Stewart, J., dissenting). But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion the Tenth, which this Court held states but a truism . . . was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers. Id. Justice Stewart takes too narrow a view of federal power. As McCulloch makes clear, the Constitution delegates to the federal government, unlike the national government under the Articles of Confederation, implied as well as expressly enumerated powers. See McCulloch v. Maryland, 17 U.S. 316, 406 (1819). 116 Such as the Sign Post Interpretation Model. It is apparent that this theory of the Ninth Amendment, and for that matter the adoption of the first eight amendments, go beyond a structural reaffirmation of the limited character of the federal government. For while Hamilton is surely correct that the Constitution gives the government no explicit power to [restrain] the liberty of the press, THE FEDERALIST NO. 84, at 579 (Alexander Hamilton) (Jacob E. Cooke, ed., 1961), cited by Justice Goldberg in Griswold, 381 U.S. at 490 n. 4, he was far too optimistic in asserting that the national government was therefore not a threat to this individual liberty. The federal government might well infringe the free press right, other explicit rights in the first eight amendments, or additional individual rights, through means justified by the necessary and proper clause in carrying out its great enumerated powers, U.S. CONST. art. I, 8, unless those means were constrained by the Bill of Rights, other specific constitutional prohibitions, and unenumerated rights made legitimate by the Sign Post Interpretation Model. Before rejecting Hamiltons first argument that a bill of rights was unnecessary, one must recognize that he might retort that Congressional means that would violate unstated individual rights would be neither necessary nor proper, and would be subject to judicial rejection even without a bill of rights. To the extent one accepts this structuralist argument, the necessary and proper clause itself serves as an additional marker for non-textual individual rights, bolsters Justice Goldbergs view of the Ninth Amendment and leaves the Sign Post Interpretation Model intact. 117 Madison proposed a declaration that the powers not therein delegated should be reserved to the several States, 1 Annals of Cong. 458-459 (Joseph Gales, ed., 1789), as a specific response to Hamiltons qualms, and to give reassurance that the federal government would remain limited, as initially intended, after the adoption of a bill of rights. This declaration was enacted as the Tenth Amendment, which provides: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. U.S. CONST. amend. X. 118 It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).

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broad, clear language specifying that while some powers not delegated to the national government are reserved to the states and others to the people,119 individual rights are retained by the people alone and it is no part of any power of governmentnational, state, or local to deny or disparage these rights. The Ninth Amendment reads in full, The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.120 There is more beyond this compelling textual rejection of the original purpose objection to the Sign Post Interpretation Model. James Madison, the principal architect of the Bill of Rights (including the Ninth and Tenth Amendments), believed that there were individual rights beyond those stated in the first eight amendments;121 that given the finite nature of language, it was impossible to list them all,122 and that part of the function of the Ninth Amendment was to make clear that such rights existed and were not left unprotected.123 There is little doubt, given the unambiguous language of the Ninth Amendment and the context of the Declaration of Independences assertion that all men . . . are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness[,]124
U.S. CONST. amend. X. U.S. CONST. amend. IX. In presenting his proposal for what became the Ninth Amendment to the first Congress, Madison said: It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system[.] Griswold, 381 U.S. at 489 (quoting I Annals of Congress 439) (emphasis added). 122 Madison recognized that no language is so copious as to supply words and phrases for every complex idea.[.] Griswold, 381 U.S. at 488 n.3 (Justice Goldberg quoting The FEDERALIST NO. 37, at 236 (James Madison) (Jacob E. Cooke ed., 1961)); see also Randy E. Barnett, Reconceiving the Ninth Amendment, 74 CORNELL L. REV. 1, 35 (1988) (it is simply impossible to specify in advance all the rights we have). 123 See supra note 121. Madison completed his thought: This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [which became the Ninth Amendment]. Griswold, 381 U.S. at 489-90 (quoting I Annals of Congress 439). 124 THE DECLARATION OF INDEPENDENCE (U.S. 1776). The Declaration makes clear by its syntax that not even the cornucopia of rights conveyed by Life, Liberty and Pursuit of Happiness exhausts the list of unalienable rights. The Declaration is highly relevant in gauging what those ratifying the Bill of Rights, and the Ninth Amendment in particular, understood. It set forth the principles that many of the ratifiers themselves had fought for less than 15 years earlier in founding the new nation; it reflected the philosophical and legal thought of the times; and it is also noteworthy that Thomas Jefferson drafted the Declaration, while his protege and political and legal soulmate, James Madison, drafted the Ninth Amendment.
119 120 121

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about what the people and their ratifying conventions and legislatures understood and approved.125 In sum, the text and the ratified Madisonian purpose for the Ninth Amendment convincingly rebut the original purpose objection and support the Sign Post Interpretation Model.126 2. Federalism Objections

The Bill of Rights originally constrained only the federal government, and had no applicability to the states. The framers intent in this regard is clear and Chief Justice Marshall relied on it in Barron v. Baltimore, holding that the Fifth Amendment did not pertain to actions of a State against an individual.127 It does not follow that the drafters of
125 For further endorsement of the historical view that the Ninth Amendment was intended to affirm the existence of unenumerated rights, see, e.g., Randy E. Barnett, supra note 122, at 34-35 (advocating, based on Madisons writings, a power-constraint conception of the Ninth Amendment, which holds that rights limit the exercise of government powers in some fashion, as opposed to a rights-powers conception, which views rights as limited only to the mirror image of powers. In a classical liberal theory of rights, rights define a sphere of moral jurisdiction that persons have over certain resources in the worldincluding their bodies. This jurisdiction establishes boundaries within which persons are free to do what they wish . . . Given this conception of rightsa conception in keeping with that held at the time of the framing of the Ninth Amendmentit is simply impossible to specify in advance all the rights we have. Id. at 34-35. See Calvin R. Massey, Federalism and Fundamental Rights: The Ninth Amendment, 38 HASTINGS L.J. 305, 343-44 (1987) (contending that the Ninth Amendment protects both positive rights, grounded in state law, and natural rights, grounded in the Framers philosophy); Suzanna Sherry, Commentary, The Ninth Amendment: Righting an Unwritten Constitution, 64 CHI.-KENT L. REV. 1001 (1988) (asserting that the Ninth Amendment was intended to make unenumerated rights judicially enforceable); see also Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment, 69 IND. L.J. 759 (1994). 126 There is something ironic about the effort some commentators, who consider themselves strict textualists and originalists, have put into robbing the Ninth Amendmentan explicit constitutional provision, authored by one of the countrys greatest political theoristsof any significance or power. For somewhat similar observations, see Sanford Levinson, Symposium, Constitutional Rhetoric and the Ninth Amendment, 64 CHI.-KENT L. REV. 131, 142 (1988) (noting that [t]hose who emphasize text and history . . . seem to be hoist on their own petard when dealing with the Ninth Amendment); Philip B. Kurland, Bork: The Transformation of a Conservative Constitutionalist, 9 CARDOZO L. REV. 127, 131-33 (1987) (describing Borks theory of unlimited government powers against individuals, in light of the Ninth Amendment and the history surrounding it, as based on a myopic reading of history). Parenthetically, even if a strict originalist were somehow able to show a narrow specific original purpose for the Ninth Amendment, the general expansive language of the Ninth Amendment chosen by the framers would require a broader interpretation and application. For example, compare the broad modern reach of the Equal Protection Clause with the claim that its original purpose was restricted to protecting only the former African-American slaves, or that it permitted anti-miscegenation statutes or school segregation. See infra notes 274, 301 and 341, and accompanying text. 127 Barron v. Baltimore, 32 U.S. 243 (1833).

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our Constitution believed that the states had unfettered power to infringe individual rights. The states had constitutional bills of rights, often predating the federal Bill of Rights, and court systems for enforcement. The framers had confidence, sadly misguided in some respects,128 that the individual states would adequately protect their own citizens rights.129 History establishes that, for this reason, the Bill of Rights, including the Ninth Amendment, was not intended to limit individual state power in any respect. No problem is presented for the Sign Post Interpretation Model when its contribution is limited to the derivation of additional individual rights judicially enforceable against only the federal government.130 Facially, however, there is a serious federalism objection regarding the use of the Ninth Amendment to restrain state power under the pre-Civil War constitution.131 This potential objection to the Sign Post Interpretation Model is not as strong as it first appears. The model merely tells us that there are rights beyond those specifically listed in the first eight amendments that the Court is authorized to search for, find and enforce. The Ninth Amendment and the model do not tell usnor do the first eight amendmentsthat these rights are enforceable against state power, and therefore the objection is illusory. Once we agree on the existence of a textual or not clearly textual federal constitutional right, whether it is enforceable against the states as well as the federal government is an independent question that does not depend upon the Ninth Amendment or the Sign Post Interpretation
128 See, eg., Brown v. Mississippi, 297 U.S. 278 (1936). See generally RUSSEL B. NYE, FETTERED FREEDOM: CIVIL LIBERTIES AND THE SLAVERY CONTROVERSY, 1830-1860 (rev. ed. 1964) 129 For example, Oliver Ellsworth stated at the Constitutional Convention that he turned his eyes [to State governments] for the preservation of his rights. 1 MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 at 492 (1911), and James Wilson, another architect of the Constitution, said at a lecture in 1791, our [State] assemblies were chosen by ourselves; they were the guardians of our rights, the objects of our confidence, James Wilson, Of Government, in 1 THE WORKS OF THE HONOURABLE JAMES WILSON L.L.D. 292-93 (Robert Green McCloskey ed., 1967). The Framers were not completely sanguine even in 1787, and they felt it necessary to prohibit the states from inflicting bill[s] of attainder, ex post facto law[s], or law[s] impairing the obligation of contracts on their citizens, U.S. CONST. art. I, 10; see also U.S. CONST. art. IV 4 (The United States shall guarantee to every state in this union a republican form of government). As the Art. IV 2, Privileges and Immunities Clause demonstrates, the founders had less confidence that the States could be entrusted with protection of the rights of citizens of their sister States. 130 It would be interesting to know if those critics of Goldbergs Ninth Amendment analysis who base their criticisms on federalism grounds would drop their objections and permit the Court to derive and enforce unenumerated individual rights against the federal government. 131 If Justice Black, for example, had confined his comments to the pre-Civil War constitutional period, he would have been correct in contending that the Ninth Amendment was not to be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Griswold v. Connecticut, 381 U.S. 479, 518-20 (1965) (Black, J., dissenting).

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Model for its resolution. The Civil War and the constitutional amendments that followed132 dramatically altered the shape of our federalism. They removed the question of slavery from the state political arena and, at least officially, ended the great moral disjunction between the Declarations promise of equality133 and the Constitutions permission of this evil institution.134 The first clause of the first section of the Fourteenth Amendment broadly settled the question of national and state citizenship, and removed the power altogether from the states to deny citizenship to their residents who were national citizens.135 The Fourteenth Amendment also revoked much of the Constitutions trust in the states protection of her inhabitants political and civil rights.136 Section 1 imposed three additional limitations on the states, forbidding any state from abridging the privileges or immunities common to all citizens of the United States; depriving any person (citizen or not) of life, liberty, or property without due process of law; or denying to anyone within the states jurisdiction the equal protection of that states laws.137 Federalism, even after the Civil War and the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments, contemplates states protecting certain individual rights that may not be protected under the federal constitution.138 Similarly, there is no logical reason precluding
U.S. CONST. amends. XIII (1865), XIV (1868), and XV (1870). We hold these truths to be self-evident, that all men are created equal [.] THE DECLARATION OF INDEPENDENCE, para. 2 (U.S. 1776). 134 U.S. CONST. art. I, 2 (Representatives . . . shall be apportioned . . . according to . . . numbers, which shall be determined by adding to the whole number of free persons, . . . three fifths of all other Persons); U.S. CONST. art. I, 9 (The . . . importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to [1808]); U.S. CONST. art. V (making the previous provision immutable and not subject to amendment until at least 1808); U.S. CONST. art. IV, 2 (No person held to service or labor in one State . . . escaping into another, shall . . . be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due); see also Dred Scott v. Sandford, 60 U.S. 393 (1857). 135 U.S. CONST. amend. XIV, 1 (All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.) (emphasis added). 136 Although the Bill of Rights was not intended to apply against the states, see supra note 127 and accompanying text, the original Constitution did impose some direct limitations on State power over the individual, and on the States internal political structure. See supra note 129. 137 U.S. CONST. amend. XIV, 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 138 This aspect of federalism has long been recognized within the context of the states-aslaboratories metaphor. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (It is one of the happy accidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the
132 133

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some negative checking rights, or limitations, against the federal government that would not apply against the states.139 Once a federal constitutional right is found, the question of whether it also limits state power depends primarily upon its character. The proper inquiry is whether the right is a privilege or immunity of citizenship of the United States, or a life, liberty or property interest whose deprivation violates due process, or whether a state denies equal protection in failing to fully embrace the right, or whether there is some other provision of the Constitution or structural principle of federalism applying the right to the states. These are subtle questions that, among other issues, spawned the complicated incorporation debate on the Supreme Court regarding the applicability of the various provisions of the first eight amendments to the states. But, as noted earlier, the Ninth Amendment merely points to finding federal constitutional rights and does not answer the federalism question of whether such rights are enforceable against the states. The Sign Post Interpretation Model does not depend upon ones position on the contending views of the controversial incorporation debate, or on the overall correct interpretation of the individual clauses of Section 1 of the Fourteenth Amendment, and it certainly does not suggest or
rest of the country); Hans A. Linde, First Things First: Rediscovering the States Bill of Rights, 9 U. BALT. L. REV. 379 (1980). Justice Brennan was especially influential in encouraging state courts to enforce greater protections for individual rights under their own constitutions, no doubt in part as a reaction to the Burger Courts more conservative jurisprudence. See, e.g., William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 491 (1977) (State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Courts interpretation of federal law.); William J. Brennan Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. REV. 535, 548 (1986) (Between 1970 and 1984, state courts, increasingly reluctant to follow the federal lead, have handed down over 250 published opinions holding that the constitutional minimums set by the United States Supreme Court were insufficient to satisfy the more stringent requirements of state constitutional law). Specific examples include states granting broader protection for speech, as in Pruneyard Shopping Ctr. v. Robbins, 447 U.S. 74 (1980) and State v. Henry, 732 P.2d 9 (Or. 1987). There are also decisions granting broader protections to the criminally accused; and some decisions granting greater equality and privacy rights. See, e.g., South Dakota v. Opperman, 247 N.W.2d 673 (S.D. 1976) (granting greater search and seizure protection to individuals under the state constitution); Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (striking on both equality and fundamental rights grounds the Massachusetts ban on same sex marriage). 139 See, e.g., Hurtado v. California, 110 U.S. 516 (1884) (holding that the Fifth Amendment requirement of indictment by grand jury is not applied to the states by the Due Process Clause); Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211 (1916) (holding that the Seventh Amendment requirement of a unanimous verdict in a civil jury trial does not apply to the states). There are also a few rights protected by the federal constitution against state power, but not against federal power. See, e.g., U.S. CONST. art. I, 10 (No State shall . . . pass any . . . law impairing the obligation of contracts); U.S. CONST. amend. XIV, 1 (No State shall . . . deny to any person within its jurisdiction the equal protection of the laws). There is no comparable constitutional text so limiting the federal government, but the Court has found analogous, though more limited, restraints on the federal government, relying on the Fifth Amendment Due Process Clause.

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depend upon a notion that the Ninth Amendment itself is incorporated by the Fourteenth Amendment.140 This federalism shot against the Model then misses its mark. The remaining objection from federalism is somewhat similar, but distinct. It begins with the unimpeachable premise that the Ninth Amendment was intended to limit federal governmental power. The argument proceeds to claim that it would therefore be unseemly to use that amendment to expand federal power. The objection is based on the assumption that expanding federally protected individual rights as limitations on the states constitutes an expansion of federal power (and not just a limitation on state power), at least when these rights are enforced by federal courts.141 It would be interesting to ask these critics of Justice Goldberg if they would drop their objections if state courts, rather than federal courts, derived the federal constitutional rights to apply against their own states challenged legislative, executive, administrative or initiative petition actions.142
140 Justice Goldberg specifically denied that his interpretation of the Ninth Amendment constituted incorporation of that amendment. Griswold v. Connecticut, 381 U.S .479, 492 (1965) (I do not mean to imply that the Ninth Amendment is applied against the States by the Fourteenth). 141 Justice Black, for example, writes: That Amendment was passed, not to broaden the powers of this Court or any other department of the the General Government, but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government . . . . This fact is perhaps responsible for the peculiar phenomenon that for a period of a century and a half no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Id. at 520; see also Raoul Berger, The Ninth Amendment, 66 CORNELL L. REV. 1, 8 (1981): It is incongruous, moreover, to read the text of the ninth amendment as expanding federal powers at the very moment that the tenth was reserving to the states or the people all powers not delegated. Then too, because the federal government may not deny unenumerated rights, it does not follow that it may enforce them against the states. Id. 142 In this regard, it is interesting that the Supremacy Clause, after declaring the Constitution and other valid federal law supreme, states: the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. U.S. CONST. art. VI, cl. 2. This supports state judicial power and responsibility to derive and enforce federal constitutional rights, although these rights, being matters of federal law, would remain subject to appellate review by the Supreme Court as part of [t]he judicial power of the United States. U.S. CONST. art. III, 1-2. The state courts properly claimed similar judicial review responsibility from the earliest days of our republic. See, e.g., Hunter v. Martin, 4 Munf. 1, 6 (Va. 1813) (asserting that the state courts had a responsibility to interpret the Constitution similar to that of the Supreme Court: What that constitution is, what those laws and treaties are, must, in cases coming before the State Courts, be decided by the State Judges, according to their own judgments, and upon their own responsibility). However, the Virginia court went too far when it contended that, while it was obligated to respect the decisions of the federal courts, it was not to grant them conclusive authority. Id. This was too much for Justice Story, who held that the Supreme Court did, in fact, have appellate authority over the state courts, but reaffirmed that the

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One answer to the expanded federal power objection is that the modest form of the Ninth Amendment Model, by itself, is neutral on the question of whether the federal courts can enforce rights against the states. More fundamentally, however, the critics position that increased enforcement of individual rights constitutes an expansion of federal power, though syllogistically appealing, is not correct. Legislative and executive powers are by their nature active, and they often directly impede individual freedom while pursuing collective benefits. Judicial power, on the other hand, is in a qualitative sense passive.143 It serves to protect, rather than detract from, individual freedom when exercised in its counter-majoritarian, rights-enforcing mode. There is a significant categorical difference between action by the national legislative or executive branches to constrain people in ways the states would not (or to preempt state policy choices on matters of local concern) and judicial decisions by the federal courts protecting the individual against a particular government action, state or federal. When the courts enforce individual rights, the power that is being expanded is the autonomous right of the people to shield themselves from certain types of governmental actions. This is in direct contrast to the expansion of government power over the people. While the Ninth Amendment was designed to guard against an unintended expansion of federal control over the people, there is no evidence that it was intended to authorize or enhance state powers over the people. In the final analysis, the Sign Post Interpretation Model of the Ninth Amendment remains intact, and it is the other structures and relationships of our constitutional federalism that determine the extent to which federal rights are applicable to the States.144
state courts are expressly bound to obedience by the letter of the constitution. Martin v. Hunters Lessee, 14 U.S. 304, 344 (1816). But see Justice Holmes famous comment: I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States. OLIVER WENDELL HOLMES, COLLECTED LEGAL PAPERS 295-96 (The Plimpton Press 1920). 143 Alexander Hamilton famously made this point in THE FEDERALIST NO. 78, at 523 (Alexander Hamilton) (Jacob E. Cooke ed., 1961): The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. Id. For excellent classical scholarly treatment of the desirability of the courts inherently passive nature, see Alexander M. Bickel, The Supreme Court 1960 Term Foreword: The Passive Virtues, 75 HARV. L. REV. 40 (1961); ALEXANDER M. BICKEL, THE MORALITY OF CONSENT (Yale University Press 1975); ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (2d ed. 1986) (1962). 144 This important point is discussed supra at notes 189, 195-196, 200-202 and accompanying

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The Ninth Amendment does not contain specific rights, or tell the courts exactly where or how to look for these unenumerated rights. The emptiness objection is that such rights therefore do not exist or, even if they do, the Ninth Amendment and the Sign Post Interpretation Model do not justify or clarify the judicial search for these ephemeral rights.146 If the model embraced the proposition that the Ninth Amendment serves as a catalog of rights, or alternatively as a talismanic directory of sources and methods for finding rights outside of the Ninth Amendment, the emptiness objection would be well founded. But, as noted previously, the Sign Post Interpretation Model does not make any such claims.147 A useful analogy may be drawn from elementary solid geometry. Suppose that one is given a three dimensional object, even one as simple as a cone, and asked whether it is useful in helping to determine one or more two-dimensional figures. The cone is not a two dimensional figure, and does not by itself meaningfully determine the contour of any particular such figure. When cut by all possible planes, the cone yields an infinite number of figures. But it does not follow that
text.
145 See Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 366-67 (1981) ([T]he ninth amendment seems to me entirely empty, supplying no ascertainable direction to the courts. It is, accordingly, far too indefinite to provide any judicial authority for the development of substantive rights against the political process.); Andrzej Rapaczynski, Symposium, The Ninth Amendment and the Un-written Constitution: The Problems of Constitutional Interpretation, 64 CHI.-KENT L. REV. 177, 178 (1988) (The ninth amendment is void of any substantive content; instead, it states a rule of construction which, even if assumed to entitle a court to engage in expansive judicial review . . . is also incapable of doing any real work in the process of actual interpretation). Peter Westen has repeatedly made a similar, and similarly misguided, argument with respect to the Equal Protection Clause. See, e.g., Peter Westen, Commentary, The Meaning of Equality in Law, Science, Math, and Morals: A Reply, 81 MICH. L. REV. 604, 604 (1983) (Equality, I argue, has two qualities that together disqualify it as an explanatory norm in law and morals. It is both empty and confusing[.]); PETER WESTEN, SPEAKING OF EQUALITY: AN ANALYSIS OF THE RHETORICAL FORCE OF EQUALITY IN MORAL AND LEGAL DISCOURSE (Princeton University Press 1990). See infra notes 321-323 and 331, and accompanying text, for discussion of the significance of notions of equality as important meta principles for a rights model, and of the fundamentally flawed character of Professor Westens thesis. 146 Remarkably, Raoul Berger at one point suggests his view that not only is the Ninth Amendment empty, but that the Bill of Rights is as well: Thus viewed, the Bill of Rights added nothing, but was merely declaratory. Raoul Berger, The Ninth Amendment, 66 CORNELL L. REV. 1, 6 (1981). Pretty soon, if we accept the views that the great rights provisions of the Constitution are essentially empty, e.g. Westen for the Equal Protection Clause; Berger, et. al., for the first ten Amendments; United States v. Darby, 312 U.S. 100, 124 (1941) (the Tenth Amendment states but a truism); Justice Miller in Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872) for the Fourteenth Amendment Privileges or Immunities clause; and Justices Douglas and Scalia and others for Substantive Due Process, the rights protecting function of the Constitution will begin to disappear like the Cheshire cat, leaving only an unsatisfactory grin. 147 See supra notes 105-108 and accompanying text.

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the cone is empty or useless in helping to determine particular two dimensional figures. First, although an infinite number of figures can be obtained from the cone, all of them fall into a finite number of classes, e.g. circles, ellipses, triangles, parabolas, etc., with certain well defined characteristics. One can analyze a given plane figure and determine with certainty whether it is a conical section or not. Second, if not only the cone, but also a specific plane cutting the cone is given, a precise individual figure conclusively is determined. To complete the analogy, the Sign Post Interpretation Model treats the Ninth Amendment as neither the cone nor the intersecting planes, but as a statement that there are legitimate solids (sources of rights), and legitimate planes (methods of interpretation), and that the Court is a proper institution to map these solids, cut them with appropriate planes and apply the resultant shapes (rights) to decide specific cases.148 The emptiness objection, if accepted, would also impermissibly flout the bedrock principle of construction that no provision of the Constitution is surplusage or without meaningful effect. In sum, the Ninth Amendment is just as important as, and no more empty than, the corresponding mathematical rubric that empowers the mathematician to slice solid objects with a specified plane, yielding a determinate and particular two dimensional figure. (The neurologist uses an MRI scan to create similar invaluable two dimensional images of brain tissue). The emptiness objection fails, and the Sign Post Interpretation Model remains a vital and useful tool for any reasonable comprehensive theory of rights.

148

See infra Diagram 7.

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4.

The Judicially Unenforceable Rights Objection

The remaining objection to the Sign Post Interpretation Model is to concede that the Ninth Amendment, by its plain terms, establishes that there are unenumerated rights, but then to deny that these rights are judicially enforceable.149 This objection would have to be based on one
149

Some critics of Justice Goldbergs opinion take this position, both admitting that there are

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of three assertions: that these rights are not enforceable at all, that although they are enforceable, the courts are less institutionally capable of enforcing them compared with other, more clearly textual rights, or that other institutions are more appropriate and capable of finding and protecting unenumerated rights than they are of protecting textual rights. The first part of the objection answers itself. A right that had no impact whatever, not even through self-defensive action by the individual with the right, would be completely illusory. There is no basis for concluding that our framers, committed as they were to unalienable rights, a written constitution with the force of law, and the rule of law as an essential ingredient to the social compact, intended to engage in any such charade.150 This objection therefore folds in on itself and really becomes just another version of the argument, rejected previously, that the Ninth Amendment is empty and unenumerated rights do not exist.151 The second and third elements of the objection are the opposite sides of the same coin and either prove too much or too little. The argument that the courts lack institutional competence to enforce individual rights,152 in comparison with other political and social structures, was unanimously rejected in the initial debate over the legitimacy of judicial review.153 In fact, it is widely accepted that the Courts special institutional competence is heightened in comparison with the political branches when carrying out its counter-majoritarian function to protect an individual from excessive government power.154
unenumerated rights, and denying that they are judicially enforceable. See, e.g., Raoul Berger, The Ninth Amendment, 66 CORNELL L. REV. 1, 5-6, and 10 (1981); see also Justice Scalias comments in his dissenting opinion in Troxel v. Granville, 530 U.S. 57, 91-92 (2000), where he identified in the Declaration of Independence and the Ninth Amendment a right of parents to direct the upbringing of their children but then asserted that neither text as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right. 150 Chief Justice Marshall made a very similar point in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803): The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury . . . . The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case. Id. 151 See supra notes 145-148 and accompanying text. 152 I mean to include in this concept the derivation, interpretation and definition of the right as well as its application in a particular factual situation. 153 See, e.g., Marbury, 5 U.S. (1 Cranch) 137; Martin v. Hunters Lessee, 14 U.S. 304 (1816); THE FEDERALIST NO. 78 (Alexander Hamilton) (John E. Cooke ed., 1961). 154 See, e.g., Marbury, 5 U.S. (1 Cranch) at 166 (discussing the important and unreviewable political discretion vested by the Constitution in the President in areas where the Presidents powers respect the nation, not individual rights, but noting that when the rights of individuals are at issue, the Presidents Secretary of State is an officer of the law . . . and cannot at his

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Unless one is prepared to discard two centuries of successful experience with the development of judicial review of individual rights claims, then, the argument must be reduced to its more limited form that even if the courts have special institutional competence to enforce textual rights, this competence/legitimacy evaporates when the rights are less clearly textual. It is assuredly true that as one moves from the core of a textual right outward to unenumerated rights, cases get harder and more controversial. The consequent increased risk to the courts store of legitimacy capital,155 and the greater likelihood of outright error undoubtedly counsel increased caution and restraint on prudential grounds.156 But this decline in the courts sure-footedness is no a priori reason to conclude that other institutions gain competency or legitimacy in comparison with the courts in handling claims of rights that are not clearly textual. The legislatures and the executive (the politically representative and therefore most democratic of government institutions) are properly not fully entrusted to protect individuals in their textual rights against majority will. It is even less likely that they
discretion sport away the vested rights of others); McCulloch v. Maryland, 17 U.S. 316, 401 (1819), noting that a case: in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice [and therefore the Act of Congress] ought not to be lightly disregarded. Id. The clear implication of Justice Marshalls statement is that in cases where the great principles of liberty are concerned, the Court should be much more willing to strike down infringing governmental action; see also U.S. v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938) suggesting that: [t]here may be [a] narrower scope for [the] operation of the presumption of constitutionality when legislation . . . [is] within a specific prohibition of the Constitution, such as those of the first ten Amendments, . . . [or] legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny . . . than are most other types of legislation . . . [or] statutes directed . . . against discrete and insular [racial or religious] minorities. Id. 155 As politicians achieve policy goals partially by earning and selectively using political capital, so too are courts able to restrain the political branches by developing and expending judicial legitimacy capital. Examples where previously accumulated legitimacy capital were essential to the Supreme Courts ability to act, and to have the acts followed, however reluctantly, include Brown v. Bd. of Educ., 347 U.S. 483 (1954), and United States v. Nixon, 418 U.S. 683 (1974) (the Nixon Watergate tapes litigation). It is fanciful to imagine even minimal compliance by recalcitrant segregationist States, or a powerful executive, without the weight of a long tradition of acceptance of judicial review and judicial mandates in less sensitive cases. 156 See supra note 143 for a sampling of the thoughtful scholarship of Professor Alexander Bickel on these themes. One of Professor Bickels most persuasive arguments is that the Court should conserve carefully its store of legitimacy capital so it might be able, in a true nationwide crisis, to call a riven society back to its senses. ALEXANDER M. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS (1970).

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will restrain their impulse for immediate political gains from majoritarian or special interest group action if the only impediment is the claim from a minority of individuals that the law trenches on an unenumerated right without obvious textual pedigree.157 There is simply no respectable argument that custom, manners or some other non-governmental social institution will suddenly jump to the fore to protect non-textual rights better than these institutions protect textual rights. Finally, both practical limitations and important considerations of societal stability militate against relegating the protection of all nonenumerated rights to the peoples reserved right of revolution.158 In fact, careful consideration of the nature and effect of the reserved right of revolution lends strong support to active judicial review and enforcement of individual rights. If, instead, the countermajoritarian function was entrusted to the political branches and they became tyrannical, their force and will (money, power and armies) would likely make even a justifiable revolution tragically bloody. Conversely, the courts passive nature ensures that they could not alone (without at least silent collusion from the political branches) tyrannize the people; and if they were to intentionally and persistently refuse to honor the peoples rights, they could be corrected or removed comparatively easily and bloodlessly. Of course, a court that constantly frustrated the majority in the name of faux individual rights without just cause might ultimately provoke its own demise, just as would a court that refused to honor individual rightsneither a good sort of revolution, but still far preferable to a bloody civil confrontation.

157 The single-headed executive branch seeking a more coherent policy objective is even less likely to prove especially sensitive to inconvenient rights that are not textually self-evident. Both political branches of governments (legislative and executive) are somewhat more likely to pause before seeking, enacting or enforcing legislation with serious negative impacts on textual rights, especially those in bills of rights, for several reasons. Since these decisions are taken in the abstract before policy is applied and consequences can be observed, objections based on textual rights are much more likely to be noticed and pressed upon the decision makers because these rights present an easy catalog for watchdog individuals or rights organizations to search through. (It should be noted that our courts typically face a much more concrete situation because of the Article III case and controversy and standing requirements. This fixing of the concrete situation in judicial cases makes the search for a relevant unenumerated right far less open-ended an endeavor than it would be in the abstract). Also, our constitutional history and tradition have imbued the text, and particularly the Bill of Rights, with a mythic quality that sometimes rises to the level of civic religion. The legislator or president may feel a moral pull to honor constitutional text in the Bill of Rights, and simultaneously gain political stature, in ways that just are not present with respect to non-textual constitutional impulses. 158 See THE DECLARATION OF INDEPENDENCE (U.S. 1776) (whenever any Form of Government becomes destructive of [unalienable rights], it is the Right of the People to alter or to abolish it). See generally GARRY WILLS, INVENTING AMERICA: JEFFERSONS DECLARATION OF INDEPENDENCE (1978) for an interesting discussion of the founders understanding of the limited legal right of revolution retained by the people, and its distinction from legally unjustified rebellion or insurrection.

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The courts are fallible and will make mistakes.159 Still, they possess certain special competencies, and the Ninth Amendment adds unmistakable support for their role in assuring protection of other [rights] retained by the people, which necessarily require articulating and enforcing individual constitutional rights beyond those given concretely in the rest of the text. The Sign Post Interpretation Model withstands attack and merits an important role in any comprehensive model of judicially enforceable fundamental rights, both in affirming that such rights exist and in confirming the courts proper institutional role regarding sources of law and methods of interpretation for such rights. B. Justice Harlan and Due Process as a Cauldron on Its Own Bottom There is much to admire in Justice Harlans analysis of Connecticuts anti-birth control statute in his concurring opinion in Griswold v. Connecticut,160 and especially in his careful dissent in Poe v. Ullman.161 Perhaps more than the other Griswold justices voting to strike down the Connecticut statute, he considered the specific nature of the states intrusion into an area of personal liberty, made an effort to define and describe the contour and limitations of the right that he relied upon, gave serious consideration to the States asserted policy justifications for the statute (including the particularly thorny question of whether and to what extent the State can rely exclusively on a moral principle to support legislation), and investigated the particular enforcement mechanism of the statute. But, just as any perceived lack of craft in the other opinions was no impediment to drawing out valid analytical models for the derivation of non-textual rights, so too the seductive quality of the fine craft characteristic of Justice Harlan does not by itself establish validity for his stated analytical model.162
159 See, e.g., Dred Scott v. Sandford, 60 U.S. 393 (1856); Plessy v. Ferguson, 163 U.S. 537 (1896); Lochner v. New York, 198 U.S. 45 (1905); Korematsu v. United States, 323 U.S. 214 (1944), notable among many others. 160 381 U.S. 479, 499-502 (1965). 161 367 U.S. 497, 522-55 (1961). Poe dealt with an earlier declaratory judgment action filed against the same Connecticut anti-contraceptive statute. A majority of the Court concluded for a variety of reasons that the issues were non-justiciable as presented. Justice Harlan dissented on the justiciability question. Reaching the merits, he argued at length that the Connecticut statute was unconstitutional. Id. 162 This is not to demean the importance of craft to legitimate constitutional interpretation. Indeed, true judicial craft may be the most important element of the courts special institutional competence to exercise constitutional control over the other branches of federal and state governments. Justice Harlans example of fine craft has much to say about the proper treatment of sources and methods for the determination and enforcement of non-textual rights.

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Justice Harlan objected to grounding the individual right that protects Griswold on the Bill of Rights or their penumbras,163 and he did not rely on the Ninth Amendment. For Justice Harlan, given his view of federalism, the only proper source for the Court to look for individual rights to restrain state power is in the Due Process Clause of the Fourteenth Amendment.164 His analytical model equates the Due Process Clause with a charge to the Court to seek those basic values that are implicit in the concept of ordered liberty.165 Many sources of law, including the provisions of the Bill of Rights, add spice to the ingredients of due process, and methods of interpretation offer important stirring implements, but it is the Due Process Clause itself that ultimately stands . . . on its own bottom.166 Justice Harlans model can thus be illustrated as a Due Process Cauldron containing Liberty rights that are not otherwise clearly marked off in the Constitutional text.167

163 Griswold, 381 U.S. at 499-500. Justice Harlan did not accept the use of the incorporation approach to impose upon the States all the requirements of the Bill of Rights as found in the provisions of the first eight amendments and in the decisions of this Court interpreting them. Id. at 500. Neither did he accept the use of incorporation to restrict the reach of Fourteenth Amendment Due Process limitations on the States to what may be found in the Bill of Rights. Id. While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. Id. (emphasis added). 164 [N]or shall any State deprive any person of life, liberty, or property, without due process of law[.] U.S. CONST. amend. XIV, 1. 165 Griswold, 381 U.S. at 500 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). 166 Id. at 500; see also Poe, 367 U.S. at 543 (Harlan, J., dissenting): [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This liberty is not a series of isolated points pricked out in the terms of taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. Id. 167 See infra Diagram 8.

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This model, without further refinement, can equally accommodate procedural and substantive rights. It is apparent that Justice Harlan relied on both kinds of rights in Poe and Griswold, and that he supported directly the concept of substantive due process.168 Justice Harlan relied on the practice and tradition of Liberty as the source for the judicial infusion of substantive fundamental rights. Liberty is certainly more than just an attractively flexible label. It is an important symbol with historical and philosophical content, and with a classical pedigree for both procedural and substantive rights in the American lexicon.169 But there are still three weighty objections to Justice Harlans model given his broad and exclusive reliance on substantive due process.170
Poe, 367 U.S. at 540-41. Abraham Lincoln described our nation as one conceived in Liberty in his Gettysburg address. Abraham Lincoln, The Gettysburg Address (November 19, 1863). Our Constitution states six purposes; two are to establish Justice and secure the Blessings of Liberty to ourselves and our Posterity[.] U.S. CONST. pmbl. And the nations founding document, the Declaration of Independence, declares that Life, Liberty, and the [P]ursuit of Happiness are among unalienable [r]ights that are the birthright of all. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). Governments are only justified, instituted and maintained to secure these rights, and whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it[.] Id. The very legitimacy of the American revolution depended on the notion that certain procedural and substantive rights precede governments and take precedence over the exercise of unjust sovereign governmental power. See generally WILLS, supra note 158; CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND UNNAMED (1997) (the legitimacy of the American revolution is based on a commitment to the human rights outlined in the Declaration); GARRY WILLS, LINCOLN AT GETTYSBURG: THE WORDS THAT REMADE AMERICA (1992). 170 Despite these objections, substantive due process seems to have been gradually adopted as the shorthand for individual rights which are not clearly textual in the years since Griswold. See,
168 169

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The Cautionary Lesson of Economic Substantive Due Process

The Fourteenth Amendment was ratified in 1868 after the end of the Civil War. Almost immediately, claims of economic substantive due process were pressed upon the courts. The Supreme Court rejected the entire doctrine as a limitation on state legislation in the SlaughterHouse Cases,171 but as the Courts composition changed, receptivity to these arguments increased.172 In 1905, a majority of the Court gave economic substantive due process full sanction in Lochner v. New York.173 The majority found that the States desire to control employer/employee relations was illegitimate and violated the substantive due process right of the bakery employers liberty of contract.174 During the next thirty years, the Court used the Lochner principle to examine state legislative ends and to strike down a variety of economic and social welfare measures.175 Increasingly, the Courts intervention was seen as inappropriate judicial meddling in legislative policy choices.176 Momentum built for judicial retreat, and by the end
e.g., Roe v. Wade, 410 U.S. 113, 153 (1973) (holding that the right of privacy, whether it be founded in the Fourteenth Amendments concept of personal liberty . . . as we feel it is, or, as the District Court determined, in the Ninth Amendment invalidates the Texas criminal abortion statute.) Justice Stewart concurred, noting that Griswold, like the instant case, could be rationally understood only as a holding that the [statute in question] substantively invaded the liberty that is protected by the Due Process Clause of the Fourteenth Amendment . . . . and I now accept it as such. Id. at 168; see also Moore v. E. Cleveland, 431 U.S. 494 (1977) (Justice Powells plurality opinion relies expressly on Substantive due process Id. at 502); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 848 (1992) (relying on the substantive sphere of liberty which the [Due Process Clause of] the Fourteenth Amendment protects); Lawrence v. Texas, 539 U.S. 558 (2003). 171 83 U.S 36 (1872). 172 See, e.g., Mugler v. Kansas, 123 U.S. 623, 661 (1887) (rejecting a Fourteenth Amendment challenge to a Kansas law prohibiting the sale of liquor, but noting that [it] does not at all follow that every statute enacted ostensibly for the promotion of [the public morals, health and safety] is to be accepted as a legitimate exertion of the police powers of the State); Allgeyer v. Louisiana, 165 U.S. 578 (1897) (striking a Louisiana statute forbidding the purchase of marine insurance from any company not in full compliance with Louisiana law, as a violation of liberty of contract under the Fourteenth Amendment Due Process Clause). 173 198 U.S. 45 (1905) (holding a New York law limiting the hours of employee bakers to no more than ten hours a day and sixty hours a week unconstitutional as a substantive violation of the Due Process Clause of the Fourteenth Amendment). 174 Id. at 64. 175 See, e.g., Coppage v. Kansas, 236 U.S. 1 (1915) (striking down a Kansas statute which made it illegal for employers to bar their employees from joining unions); Williams v. Standard Oil Co., 278 U.S. 235 (1928) (striking down a Tennessee law regulating the price of gasoline); New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (striking down an Oklahoma law which required a state license as a prerequisite for the manufacture and sale of ice). 176 See e.g., Nebbia v. New York, 291 U.S. 502, 539 (1934) (upholding a New York statute fixing the minimum price of milk. Price control, like any other form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt[.]); W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (upholding a Washington statute establishing minimum wages for women, and overruling Adkins v. Childrens Hospital, 261 U.S. 525 (1923)).

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of the 1940s, the Court had clearly repudiated the Lochner approach.177 The Court substituted a highly deferential, low-level rational relationship standard that demanded scant state justification to defeat an economic substantive due process challenge.178 Lochner and its economic substantive due process doctrine have become constitutional boogeymen.179 It is difficult to find anyone with a good word to say about the extent of the Courts Lochnerian interventionist period. The critics of Lochner do not always agree on the precise defects of economic substantive due process, but the nearly universal rejection of the doctrine (at least in the broad form practiced during the Lochner era) serves as an important cautionary flag for any theory of substantive individual liberty rights that looks primarily to the Due Process Clause as the source of those rights. Any such broad theory would either have to accept the baggage of Lochner and a revival of judicial intervention against economic and social welfare legislation,180 or offer a principled distinction within the context of the Due Process Clause between substantive individual liberty rights and property and contract oriented economic rights.181
177 See Lincoln Fed. Labor Union v. Nw. Iron & Metal Co., 335 U.S. 525 (1949) (upholding a Nebraska constitutional amendment and a North Carolina statute which prohibited employment discrimination based on union membership). Justice Black noted that [t]his Court beginning at least as early as 1934, when the Nebbia case was decided, has steadily rejected the due process philosophy enunciated in the Adair-Coppage line of cases. Id. at 536. 178 See Williamson v. Lee Optical, 348 U.S. 483, 488 (1955): It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. Id. 179 Dred Scott v. Sandford, 60 U.S. 393 (1857), ranks even higher on the Supreme Courts list of iniquitous decisions in affirming the categorization of African-American slaves as mere property of another without human rights of their own, but it soon became a constitutional dead letter with the adoption of the Thirteenth and Fourteenth Amendments. 180 There is some evidence of a slight revival of economic substantive due process. If one sees Williamson as an understandable, yet over-correction to the Lochner flaws, a modest revival can perhaps be justified, but only if the new economic substantive due process constitutes an analytically distinct, and much less intrusive, approach compared with Lochner. For suggestions that rationality review be applied with somewhat more teeth or bite, see generally Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection in The Supreme Court 1971 Term, 86 HARV. L. REV. 1 (1972); Gerald Gunther, Commentary, 71 CHI.-KENT L. REV. 813 (1996); Hans A. Linde, Due Process of Lawmaking, 55 NEB. L. REV. 197 (1976). For an argument that the Court has indeed modestly revived economic substantive due process in a more defensible manner than Lochner, see Michael J. Phillips, The Slow Return of Economic Substantive Due Process, 49 SYRACUSE L. REV. 917 (1999). 181 The majority in Lochner actually talks about the economic right it finds as an aspect of liberty of person and freedom of contract, rather than as a property right. Lochner v. New York, 198 U.S. 45, 57 (1905). The business and economic character of the putative right surely ties it more closely to property considerations than to personal liberty. (This might not stand as clearly if the Court had been concerned with an individual employees right to pursue his work to the extent he desired, rather than with the employers desire to require his workers to exceed the state

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Such categorical distinctions are quite plausible, on grounds of political theory, based upon constitutional text outside of the due process clauses, or constitutional structural considerations,182 but they are not entirely satisfactory within the confines of the due process clauses themselves, which expressly list life, liberty and property as interests subject to due process protections.183

maximum hour limitations.) Later cases in the Lochner era make clear that the majority Justices were, in fact, relying on property, at least as much as liberty, as the source for economic substantive rights. See, e.g., Coppage v. Kansas, 236 U.S. 1, 14 (1915) (Included in the right of personal liberty and the right of private propertypartaking of the nature of eachis the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment[.]); Williams v. Standard Oil Co., 278 U.S. 235, 239 (1928) (holding that the impact of a law fixing gasoline prices will be to deprive the vendors of such gasoline of their property without due process of law in violation of the Fourteenth Amendment). 182 The Court has stated that where a basic liberty is involved, [t]here are limits to the extent to which the presumption of constitutionality can be pressed[,] and legislation invading fundamental personal liberties is subjected to strict scrutiny. Skinner v. Oklahoma, 316 U.S. 535, 541, 544 (1942). Justice White, concurring in the judgment in Griswold, invoked a double standard of judicial review by stating: Surely the right invoked in this case, to be free of regulation of the intimacies of the marriage relationship, come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements. Griswold v. Connecticut, 381 U.S. 479, 503 (1965) (quoting J. Frankfurter in Kovacs v. Cooper, 336 U.S. 77, 95 (1949)); see also McCulloch v. Maryland, 17 U.S. 316, 401 (1819) (noting that the great principles of liberty were not concerned with the instant case, and therefore the Act of Congress in question, on the faith of which an immense property has been advanced, ought not to be lightly disregarded[,] thereby suggesting the existence of different standards of review for cases involving matters of liberty and economics); see also supra note 154. 183 I do not mean to say that there are no meaningful differences among the three terms for substantive due process purposes. Because they are not listed alphabetically, there is a hint of a lexical hierarchy with life foremost, liberty second and property third. This may well justify some gradation of protection (where the difference is a matter of degree and not of kind), but it is impossible to construct a persuasive textual categorical distinction that would effectively curb judicial intervention on the basis of substantive economic/property rights, while permitting a broad reservoir of substantive fundamental personal liberties. When the claimed protection is procedural rather than substantive, however, there may be a more natural type difference in the fit of the process that is due depending on whether the interest is related to life, liberty or property. For this reason, the courts require especially protective procedures to guard against error when a defendants life is at stake in a death penalty sentencing hearing. See supra note 46 and accompanying text. Deprivations of liberty require fewer, though still rigorous, procedural protections. See, e.g., In re Winship, 397 U.S. 358 (1970) (requiring proof beyond a reasonable doubt before the government can punish with a serious deprivation of liberty through criminal or juvenile delinquency sanctions); Addington v. Texas, 441 U.S. 418 (1979) (mandating proof by clear and convincing evidence when the government seeks to deprive liberty in a more benign and less adversarial way to protect and treat the dangerously mentally ill individual). When the government is seeking to deprive an individual only of property in an ordinary civil case, the more relaxed standard of preponderance of the evidence is sufficient.

2006] 2.

THE GRISWOLD DIAGRAMS Substantive Due Process is an Oxymoron

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Even if a broad personal liberty model of substantive due process could be distinguished from the Courts failed interventionist experiment with economic due process, the oxymoronic quality of the doctrine presents additional serious obstacles. Minimal fidelity to the text, history and logic of the due process clauses requires a primary focus on procedural rights, specifically on the process that is due before a person may be deprived of life, liberty or property. A broad substantive due process model violates this basic focus because it necessarily equates use of the clauses as a source for substantive as well as procedural rights. If the Due Process Clauses of the Fifth and Fourteenth Amendments were an individuals only protections against federal and state government power, respectively, in the Constitution, Justice Harlans warning would be dire:
Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three.184

Fortunately, several preferable alternatives for substantive protections are available.185 And it is not necessary to forgo a legitimate appeal to the irrefutably substantive content of liberty, but it is more justifiable to focus directly on the roots of this concept not restricted to the procedural structure of the Due Process Clauses. Two such sources are the pre-constitutional Declaration of Independence and the Preamble to the Constitution.186 Obviously neither is self-executing. The
184 Poe v. Ullman, 367 U.S. 497, 541 (1961). Justice Stewart expressed similar concerns about the possibilities for iniquitous results despite fair procedure in In re Gault, 387 U.S. 1, 80 (1967) (Stewart, J., dissenting) (discussing the ninteenth-century criminal trial of a twelve-yearold for murder when there was no separate juvenile justice system: James Guild was tried in New Jersey for killing Catharine Beakes. A jury found him guilty of murder, and he was sentenced to death by hanging. The sentence was executed. It was all very constitutional.). Samuel Butler gave us a delightful humorous account of a fictional society with punctilious concern for procedural regularity, which guaranteed a model trial before citizens could be convicted and sentenced to death for the substantive crime of being ill. SAMUEL BUTLER, EREWHON AND EREWHON REVISITED 102-11 (The Modern Library 1927). 185 In addition to the substantive portions of the Bill of Rights, construed in accord with a proper application of the Super-Penumbral or Meta Up and Down Model, and the Ninth Amendment with its Sign Post Interpretation Model, already discussed, these include inter alia the prohibition of Bills of Attainder of Article I, sections 9 and 10; the Citizenship, Privileges or Immunities and Equal Protection Clauses of the Fourteenth Amendment; Thirteenth Amendment protections against slavery and involuntary servitude; and an array of political participation and voting rights referenced in the Fifteenth, Nineteenth, Twenty-Fourth and Twenty-Sixth Amendments. 186 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (listing Life, Liberty, and the

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Declaration is a background statement of American justice rather than positivist constitutional text, and the Preamble is largely hortatory, but both are quite relevant for a number of models including the already discussed Meta Up and Down187 and the Sign Post Interpretation188 Models. The need to force an artificial distinction between economic and fundamental liberty rights disappears, for liberty is paired with life and the pursuit of happiness (rather than with life and property) in the Declaration of Independence, and even more usefully stands alone as the Blessings of Liberty in the Preamble to the Constitution. One of the major reasons that Justices Douglas and Harlan leave us with flawed and partial models for fundamental rights is that they both see the substantive rights question in Griswold as a skirmish (where they happen to agree on the outcome), compared with an ongoing war of principle over federalism (where they sharply disagree). The main battlefield in the larger war is their longstanding debate over the application of the Bill of Rights to the states through incorporation.189 Neither wants to give aid and comfort to the other. As a champion of the total incorporationist view, Justice Douglas scrupulously avoids textual sources outside of the first eight amendments, or any hint of Lochnerizing,190 perhaps straining the credibility of his application of the Superpenumbral Theory beyond its outermost limits in the bargain. An equally wary Justice Harlan, firmly opposed to incorporation and committed to Justice Cardozos ordered liberty approach, sticks too narrowly to the liberty of the Fourteenth Amendment Due Process Clause as the sole substantive limit on the states. Both Justices, preoccupied with protecting their flanks on this larger battlefield of incorporation, detract from a more satisfactory and clear-eyed approach to the issue directly at hand.
pursuit of Happiness as among the unalienable rights of all men); U.S. CONST. pmbl. (We the People . . . in Order to . . . secure the Blessings of Liberty to ourselves and our Posterity). 187 See supra Diagram 5; see also infra notes 354-358 and accompanying text for discussion of a properly enhanced version of the Up and Down Model. 188 See supra Diagram 6. 189 The main original combatants were actually Justice Black, arguing for total incorporation on one side, and Justices Cardozo and Frankfurter on the other. Compare Justice Blacks dissent in Adamson v. California, 332 U.S. 46, 89 (1947) (contending that the purpose of the Fourteenth Amendment was to extend to all the people of the nation the complete protection of the Bill of Rights), with Justice Cardozos opinion for the Court in Palko v. Connecticut, 302 U.S. 319, 324-25 (1937) (rejecting the full applicability of the Fifth Amendment double jeopardy clause to the states, and concluding that the Fourteenth Amendment only protected the specific pledges of particular amendments which are found to be implicit in the concept of ordered liberty) and with Justice Frankfurters concurrence in Adamson, 332 U.S. at 63 (arguing that [t]hose reading the English language with the meaning which it ordinarily conveys . . . would hardly recognize the Fourteenth Amendment as a cover for the various explicit protections of the first eight Amendments); see also Twining v. New Jersey, 211 U.S. 78, 99 (1908). 190 [W]e decline the invitation [to use Lochner as our guide] . . . . We do not sit as a superlegislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. Griswold v. Connecticut, 381 U.S. 479, 482 (1965).

2006] 3.

THE GRISWOLD DIAGRAMS The Risk of Diluting the Procedural Protections of the Due Process Clauses

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The Substantive Due Process Model has another serious defect. Because the model postulates a common wellspring and an identical analytical approach for fundamental substantive and procedural rights,191 it is inevitable that courts will gravitate toward an unwarranted least common denominator methodology with respect to both kinds of rights. The previous discussion demonstrates that the courts will be especially cautious, and ultimately restrictive, in treating substantive rights under the Due Process Clause standing alone.192 The prudential restraints that are developed by the courts to achieve this result will almost surely be exported to the courts treatment of procedural rights as well, despite the fact that the cautions are not related to the procedural content of Due Process.193 This unfortunate result would be
191 By common wellspring I mean that the model relies on the same ordered liberty approach for both procedural and substantive rights under the Fifth and Fourteenth Amendment Due Process Clauses. For examples of procedural due process analytical formulations, see, e.g., Hebert v. Louisiana, 272 U.S. 312, 316 (1926) (asking whether the state procedural action was consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (asking whether the state practice offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental); Palko, 302 U.S. at 325-26 (Justice Cardozo puts the test as whether the claimed procedural right is of the very essence of a scheme of ordered liberty and neither liberty nor Justice would exist if [it] were sacrificed); Adamson, 332 U.S. at 67-68 (Frankfurter, J., concurring) (stating that due process protects those canons of decency and fairness which express the notions of justice of English-speaking peoples). For examples of substantive due process analytical formulations, see, e.g., Poe v. Ullman, 367 U.S. 497, 541, 544 ( 1961) (Harlan, J., dissenting) (stating that Due Process protects those substantive concepts which are considered to embrace those rights which are . . . fundamental; which belong . . . to the citizens of all free governments, that is, important fundamental liberties). In determining substantive fundamental rights, Justice Harlan stated that we should regard what history teaches a[s] the traditions from which [our country] developed as well as the traditions from which it broke. That tradition is a living thing. Id. at 542. Harlan urged us to rely on considerations deeply rooted in reason . . . and in the compelling traditions Id. at 545 (quoting Rochin v. California, 342 U.S. 165, 171 (1952)), and rational purposes [and] historical roots Poe, 337 U.S. at 549. For additional examples, see, e.g., Palko, 302 U.S. at 327 (noting in dicta that the substantive rights of freedom of thought and speech are included in due process because they are the matrix . . . of nearly every other form of freedom. With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal); Moore v. E. Cleveland, 431 U.S. 494, 505 (1977) (noting the accumulated wisdom of civilization, gained over the centuries and honored throughout our history); Griswold, 381 U.S. at 501 (Harlan, J., concurring) (advocating the guidance of due process analysis by continual insistence upon respect for the teachings of history, [and] solid recognition of the basic values that underlie our society . . . in establishing and preserving American freedoms). 192 See supra notes 179-184 and accompanying text; see also infra notes 205-206 and accompanying text. 193 I have made a somewhat analogous point in advising Kazakhstan, a former Soviet Republic in Central Asia that gained its independence in 1991, on the drafting of its 1993 Constitution. Stephen Kanter, Constitution Making in Kazakhstan, 5 INTL LEGAL PERSP. 65, 84-85 (1993): If there is a general right of action on the positive rights, the courts will be constrained

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ironic because it is not the fate that Justice Harlan had in mind for the procedural protections of due process, and it is plainly inconsistent with the framers primary focus on procedural rather than substantive protections in many of the specific rights provisions of the Constitutions text.194 With three strikes against substantive due process as an exclusive model, what then are the proper uses of the Fourteenth Amendment Due Process Clause for our purposes? First, by reaching state action, the provisions of Section 1 of the Fourteenth Amendment195 rebalance federalism and, unlike the original Bill of Rights, expressly limit the power of each state over individuals. At a minimum, then, Section 1 of the Fourteenth Amendment provides the essential vehicle or conduit for many substantive and procedural fundamental rights limitations on state power, once such rights are recognized in the first place.196 Second, with respect to fundamental procedural rights, Justice Harlan surely is correct that due process is not limited to the contents of the first eight amendments.197 Classic examples of constitutionally
as a practical matter to find mechanisms to discourage or prevent individuals from suing and to water down the substantive content of these rights in order to give the legislature a necessarily wide berth of discretion. Before long, these same limitations would likely be imposed on other kinds of rights, including the individual negative checking rights with which we are most familiar in our own constitutional tradition. Id. at 85. In Kazakhstan the two kinds of rights involved were social/welfare rights, or positive rights amounting to affirmative claims on the government, and negative checking rights, or limitations on the government, but the analysis is transferable to the present discussion; see also John Elys comments on the negative impact of the substantive due process cases on due process procedural rights in some administrative law cases: [B]efore it can be determined that you are entitled to due process at all . . . you must show that what you have been deprived of amounts to a liberty interest or perhaps a property interest. What has ensued has been a disaster, in both practical and theoretical terms. Not only has the number of occasions on which one is entitled to any procedural protection at all been steadily constricted, but the Court has made itself look quite silly in the process. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 19 (Harvard University Press 1980). 194 Justice Harlan acknowledged that the roots of due process are procedural safeguards deriving from Magna Carta. Poe, 367 U.S. at 541. He eschewed a narrow, cribbed reading of the Clause and called for approaching the text . . . not in a literalistic way, as if we had a tax statute before us, but as the basic charter of our society, setting out in spare but meaningful terms the principles of government. Id. at 540. 195 Citizenship; Privileges and Immunities; Due Process; Equal Protection[.] U.S. CONST. amend. XIV, 1. 196 All of the justices accept the legitimacy of this proposition in one form or another. Even Justice Douglas, while aggressively rejecting substantive due process and Lochner, relies upon Section 1 of the Fourteenth Amendment to justify striking down Connecticuts state law in Griswold. He uses his total incorporation interpretation of Section 1 to apply the Bill of Rights and their generated super-penumbral substantive privacy rights against the State. 197 See Griswold, 381 U.S. at 500; Poe, 367 U.S. at 540-43; see also Adamson v. California, 332 U.S. 46, 67 (1947) (Frankfurter, J., concurring) (rejecting the idea that the Due Process Clause incorporates the Bill of Rights against the states because this construction . . . gives to

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mandated procedural protections that are not expressed in the first eight amendments include the presumption of innocence and proof beyond a reasonable doubt in criminal cases,198 and a higher standard of proof than preponderance of the evidence in involuntary civil commitment proceedings.199 The Court has wisely resolved the contentious incorporation debate by rejecting the polar positions of total incorporation with nothing else,200 and totality of the circumstances determinations of the requirements of ordered liberty on a strictly ad hoc basis. The Court has adopted instead an intermediate approach that I will refer to as Selective Incorporation Plus.201 The plus component202 gives a valid basis for evaluating the propriety of even a substantive state law especially when the Courts inspection is limited to the enforcement mechanisms of the substantive law, that is, to procedural aspects or enforcement mechanisms that are necessary consequences of the law.203 Third, an application to the Due Process Clause of the Basic

due process no independent function, and assume[s] that no other abuses would reveal themselves in the course of time than those which had become manifest in 1791). 198 See, e.g., In re Winship, 397 U.S. 358, 364 (1970) (holding that the Due Process Clause requires proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged); Estelle v. Williams, 425 U.S. 501, 503 (1976) (holding that [t]he presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial which is secured by the Fourteenth Amendment); see also Apprendi v. New Jersey, 530 U.S. 466, 490-91 (2000); U.S. v. Booker, 543 U.S. 220 (2005) (holding that every fact, other than a prior conviction, that enhances the maximum range for a defendants sentence, also must be found by a jury, rather than a judge, and proved beyond a reasonable doubt). 199 See Addington v. Texas, 441 U.S. 418 (1979) (holding that due process requires a standard of clear and convincing evidence of mental illness and dangerousness in a civil trial for involuntary commitment to a mental hospital). 200 Justice Black was the principal advocate for the total incorporation with nothing else position. See Adamson, 332 U.S. at 70 (asserting that the majoritys use of natural law theory, instead of incorporation, to interpret the Due Process Clause degrade[s] the constitutional safeguards of the Bill of Rights and simultaneously appropriate[s] for this Court a broad power which we are not authorized by the Constitution to exercise). 201 This approach has resulted in the incorporation, one clause at a time, of most but not all of the provisions of the Bill of Rights. For an example of the Courts current selective incorporation methodology, see Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (fully incorporating the Sixth Amendment jury trial right as fundamental to the American scheme of justice) . 202 The Plus refers to the procedural protections the Court finds implicit in the Due Process Clause which are not contained in the first Eight Amendments. See supra notes 197-199 and accompanying text. In addition to these criminal and civil procedure protections, one should add virtually the entire list of constitutionally required administrative law safeguards developed through the application of the Courts often-used balancing test enunciated in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 203 That portion of Justice Harlans Poe dissent focusing on the means chosen by the Connecticut legislature, and the offensive procedural implications of the statutes enforcement mechanism, is properly directed toward this end and is distinguishable from the more troubling aspects of the substantive Due Process Cauldron Model. See Poe v. Ullman, 367 U.S. 497, 54751 (1961).

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Core/Penumbra Model is appropriate.204 Although the core of due process contains only procedural contents, the penumbra could include substantive fundamental rights that are truly corollary to the core procedural rights.205 Because such substantive rights are different in kind, and not just in degree, from the procedural rights, this area of penumbral expansion will be relatively confined and the case for substantive rights implied solely by the Due Process Clause must be especially strong.206 Fourth, if the Fourteenth Amendment Due Process Clause is accepted as a rule for the state legislatures as well as for the courts, the judiciary may appropriately conduct substantive review, at least to determine whether the legislature has conscientiously considered and justified the magnitude of any deprivation of life, liberty or property caused by its statute. Fifth, and most significantly for our purposes, the conceptual elements of the Due Process Clauses,207 together with other similarly expansive constitutional provisions, play a significant role as meta principles for an enhanced Up and Down Model.208 III. THE GRISWOLD DISSENTERS AND COMPANY The dissenters209 and other critics of Griswold predictably strike various themes with different impacts on the models under consideration. Justice Black rejects nontextualism altogether,210
See supra Diagram 1. Several of Justice Harlans comments seeking to justify substantive due process are more consonant with this core-penumbra approach, where procedural rights have primacy and substantive rights are derivative, than with the broad Due Process Cauldron Model equating substantive and procedural rights. See, e.g., supra note 203 and accompanying text. 206 This concept can be visualized by imagining a modification of Diagram 1 with the outer concentric circle reduced in diameter so that it is only slightly larger than the inner core circle. 207 These include, for example, life, liberty, property, personhood, and fundamental fairness. 208 See infra notes 354-356 and accompanying text, and Diagram 10. In this sense, perhaps one can look at the Due Process Clause as a metaphorical stone in a larger stone soup pot of rights, rather than as the self-contained pot of rights depicted in the flawed Cauldron on its Own Bottom Model. 209 Justices Black and Stewart filed separate dissenting opinions in Griswold v. Connecticut, 381 U.S. 479, 507-27 and 527-31 (1965) respectively, and each justice also joined the others opinion. 210 Id. at 508-10, 527. Although Justice Black rejects nontextualism, he is not a strict textualist either as is easily demonstrated by his call for a liberal reading I think any Bill of Rights provision should be given[,] Id. at 509, and his acknowledgment that even their relatively specific words are properly subject to judicial interpretation which may modify their original meaning: This process, of course, involves interpretation, and since words can have many meanings, interpretation obviously may result in contraction or extension of the original purpose of a constitutional provision thereby affecting policy. Griswold, 381 U.S. at 525-26 (Black J., dissenting) (quoting Adamson v. California, 332 U.S. 46, 90-92 (Black, J., dissenting)).
204 205

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particularly as espoused by Justice Harlan under the rubric of substantive due process, or based on notions of natural law.211 I agree that pure nontextualism, candidly embraced by some,212 is antithetical to our system based upon a written constitution as positive law for a structurally limited and divided government, which includes limits on the courts. But, there is a critical gap between complete nontextualism and a strict requirement that claimed rights must be expressed explicitly in the text of the Constitution.213 Persuasive interpretive models worthy of consideration reside in this gap. They depend upon textual anchors and pointers that justify a conscientious judicial effort to consider claims of right based on legitimate source materials and methods of judicial interpretation, but they ought not to be restricted only to expressly listed rights.214 In his mercifully short four and one-half page Griswold dissent,215 Mr. Justice Stewart imposed a linear analytical approach, taking the Constitution as a group of essentially unconnected and independent fragments. He then tested and rejected the proposed fundamental right against each fragment standing alone without reference to the

211 Griswold, 381 U.S. at 514-17 (Black, J., dissenting) (criticizing the same natural law due process philosophy which many later opinions repudiated, and which I cannot accept). 212 See Michael J. Klarman, Antifidelity, 70 S. CAL. L. REV. 381, 381 (1997) (Does the Constitution deserve our fidelity at all? . . . Of course not. Why would one think, presumptively, that Framers who lived two hundred years ago, inhabited a radically different world, and possessed radically different ideas would have anything useful to say about how we should govern ourselves today?). 213 This restrictive view is essentially the position taken by Judge Robert Bork. See Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1,8 (1971) (The judge must stick close to the text and the history, and their fair implications, and not construct new rights). Judge Bork further indicated that [i]n Lochner, Justice Peckham, defending liberty from what he conceived as a mere meddlesome interference, asked, [A]re we all . . . at the mercy of legislative majorities? The correct answer, where the Constitution does not speak, must be yes. Id. at 11. 214 It would be particularly anomalous and troubling if the government should be able to claim judicially enforceable implied powers, see McCulloch v. Maryland, 17 U.S. 316 (1819), while the individual is barred from claiming implied rights. Chief Justice Marshall made a somewhat analogous point in arguing that if the government can rely on implied powers to punish, it surely should be allowed implied powers for more benign purposes. Id. at 418. It should also be remembered that Marshall based the doctrine of Congressional implied powers on structural considerations, the nature of the constitution and great constitutional purposes, before ever noting the Necessary and Proper Clause. A doctrine of implied rights is at least equally sound, see supra Part I of this Article, on structural and theoretical grounds, and it is bolstered by the Ninth Amendment, the Preamble, and other specific textual provisions. The fact that courts may sometimes go too far in declaring rights is no more reason to reject all models of interpretation supporting implied rights than is the similar fact that courts may sometimes go too far in recognizing implied government powers a sufficient justification to abandon completely the doctrine of implied powers. Of course, as the courts move further away from express textual rights and toward the outer edges of implied counter-majoritarian rights inherent in our brand of constitutional democracy, there will be greater reason for caution and the employment of prudential techniques of incrementalism. 215 Griswold, 381 U.S. at 527-31.

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interconnected purposes and structure of the overall text.216 Having lined up and checked off the constitutional phrases one by one, he leaves us with a rhetorical question just to make sure that there are no overlooked strays: What provision of the Constitution, then, does make this state law invalid?217 Finding none, he was quite prepared to uphold the constitutionality of Connecticuts uncommonly silly, unwise, or even asinine law.218 He seemed to take some comfort from his surmise that the law would prove generally unenforceable.219 Justice Stewarts method may be analogized to a sheepherders Counting Vee. By acting as a one-way valve to an enclosed area, allowing only one sheep through at a time, the Counting Vee allows the shepherd to count each of his sheep once and only once at the end of grazing, to ensure that all and no others are present and accounted for, or to systematically send the sheep to shearing.220 There is enormous power in the process of breaking complex systems into their component parts for individual analysis. Much of the progress of the scientific revolution depends upon this insight, as does much profound work in the social sciences and law. Partly because of the marked success of these methods, we are quite adept at breaking things up into smaller and smaller parts for legal analytical purposes, but we find it much more difficult to reconstruct the pieces and see the whole in all of its significance.221 This is the weakness in Justice Stewarts Counting Vee Model. If in the enigmatic words of Chief Justice Marshall, it is a constitution we are expounding,222 then we must see the document round and whole, giving full scope to its underlying structures and purposes, and relating the different provisions to one another. In short, any model of constitutional theory and interpretation generously
216 Justice Stewart subdivides the First Amendment into its various clauses and shoots down Griswolds claims seriatim, pointing out that the religion clauses were not even argued, that the Connecticut law does not abridge the freedoms of speech or the press, and that it does not prevent people from peaceably assembling or petitioning the government for a redress of grievances. Id. at 528-29. He dispenses with the Third, Fourth and Fifth Amendments in an even more summary fashion. Id. at 529. He closes the book on procedural due process by assuring us that the Connecticut law is not unconstitutionally vague and that the appellants trials were not sullied with a lack of the niceties required for criminal proceedings. Id. at 528. He rejects substantive due process out of hand. Id. Finally, he denies that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of [a state]. Id. at 529-30. 217 Id. at 530 (emphasis added). 218 Id. at 527. 219 Id. (As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case.). 220 See infra Diagram 9. An unkind wag might suggest that Justice Stewarts approach risks submitting constitutional liberties to a similar shearing; see also IVAN DOIG, ENGLISH CREEK (Penguin Books 1985) (1984), for a commendable novel about Western life, fire and sheep, and the practical value of the Counting Vee. 221 A lesson not lost on Humpty Dumpty. 222 McCulloch v. Maryland, 17 U.S. 316, 407 (1819).

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disposed to the worth of the framers work must recognize the constitutional whole as greater than the sum of its individual provisions. This requires rejection or a substantial modification of the Counting Vee Model, taking it as a valuable first step only if it includes a second step of reintegrating the different constitutional provisions (reading them together) to tease out their deeper meanings.223

Justice Blacks more detailed dissent raises three additional objections to the Courts endeavor that merit further discussion. The first is the danger of diluting specific textual rights if the court is permitted to move from concrete constitutional language to more general terms. Justice Black exaggerates this danger by supposing that the Courts choice is either to stick to the simple language224 of an amendment, or to substitute the more general terms altogether.225 Such a stark choice presents a false dichotomy. For example, there is no reason for the Court to abandon the Fourth Amendment protection of a house or personal property when it finds that some expectations of privacy, beyond those traditional interests, are also protected.226 Still,

223 Every constitution must be read as a whole. When this is done, the structure of the constitution and the juxtaposition of different provisions will create a feedback mechanism that will have the effect of breathing substantive form into individual provisions that may, by themselves and taken out of context, seem to be formless. Kanter, Dealing With Death, supra note 96, at 33-34. For some examples of the Court effectively reading constitutional provisions together, and others where the Court has failed to do so, see supra notes 60-81 and accompanying text. 224 Griswold, 381 U.S. at 509. 225 Id. Using the Fourth Amendment as an example, Justice Black stated that it belittles that Amendment to talk about it as though it protects nothing but privacy . . . . One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. Id. 226 See Katz v. United States, 389 U.S. 347, 360-361 (1967) (Harlan, J., concurring).

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the danger of an unintended illiberal reading of the Constitutions great rights provisions cautions against cavalier or sloppy implementation of any of the proposed models.227 Careful implementation requires as a first step special fidelity to the text and full protection of the specific examples of rights given by the framers.228 More precisely, as the Court moves from core textual rights to more general meta rights, it must be careful to use a process of accretion or addition rather than substitution.229 Good craft will ensure that unnecessary ambigu[ity] . . . which can easily be shrunken in meaning230 is avoided. The Court should require especially strong evidentiary support for any proposed general principles that are different in kind from the core rights upon which they are based.231 Conversely, the Court should act confidently and more expansively when meta rights are derivable from the Constitutions own general clauses themselves, or when the putative right is confirmed by a number of different concrete and general sources all pointing in the same direction.232 Justice Blacks two other objections are structural and relate to the proper limitations imposed on the Court by separation of powers principles, and by the rigorous Article V amendment processes. Justice Black feared that the Court would succumb to temptation to act as a general supervisory agency, substituting the Justices own preferences
227 Justice Black warned: To treat it that way [to substitute privacy for the words of the amendment] is to give it a niggardly interpretation, not the kind of liberal reading . . . any Bill of Rights provision should be given. Griswold, 381 U.S. at 509. 228 One approach would be to acknowledge a hierarchy of rights with specific core textual rights given the most nearly absolute protection; basic core/penumbral rights given the protection of strict and nearly always fatal scrutiny; derivable fundamental non-textual rights given the protection of strict, but not always fatal, scrutiny; and other lesser liberty and property interests protected largely by procedural due process and equal protection. Cf. Doe v. Bolton, 410 U.S. 179, 211-14 (1973) (Douglas, J., joining the Courts opinions in Roe and in Doe) (opining that there are at least three kinds of rights: personal autonomy attributable to first amendment rights that are absolutely protected; freedom to choose in areas of basic life decisions such as marriage, divorce, procreation, contraception, and the . . . upbringing of children[,] that are fundamental but subject to some police power regulation; and freedom to care for ones health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf[,] which are strong rights but may be subordinated by a compelling state interest) (emphasis omitted). 229 Chief Justice Marshall and Justice Brennan have made analogous arguments for a one-way ratchet allowing expansion while guarding against erosion. See, e.g., McCulloch v. Maryland, 17 U.S. 316, 420 (holding that the Necessary and Proper Clause justifies additional Congressional implied powers and cannot be construed to restrain the powers of Congress); Katzenbach v. Morgan, 384 U.S. 641 (1966) (holding Congress may rely on the enforcement power in 5 of the Fourteenth Amendment to enforce, and under certain circumstances expand, but not contract, the individual rights provisions of 1 of that Amendment). Justice Brennan emphasize[d] that . . . 5 grants Congress no power to restrict, abrogate, or dilute these guarantees. Id. at 651. 230 Griswold, 381 U.S. at 509. 231 This is why the core-penumbra approach, applied by itself to the procedural core of the due process clause, should provide only limited substantive rights. See supra note 206 and accompanying text. 232 See infra Part V for a proposed model with such a feedback mechanism at its heart.

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for the political policy wisdom of duly constituted legislative bodies, or worse, set itself up as a day-to-day constitutional convention.233 Were these fears to be fully realized, they would work a great unconstitutional shift of power to the courts that would be bad for the courts and worse for the country.234 Two centuries of experience with judicial review and the Courts general counter-majoritarian individual rights function235 demonstrate that the risk is minimal. It is far more likely the court will be perceived as wielding political or constitutionmaking power than that it will actually do so. Charges of judicial overreaching are easy to make in any case where the Court approves innovative government actions or recognizes a new or expanded individual right. The best corrective is for judges to exhibit a reasonable dose of institutional humility and make a genuinely conscientious effort to base decisions on structured methods of principled interpretation rather than ad hoc or post hoc rationalizations. There will be cases, especially at the Supreme Court, where the lines between broadly and generously interpreting the constitution and impermissibly amending it, or between principles relevant and legitimate for constitutional decision making and purely political policy, will be reasonably disputable. That is why we refer to members of the third branch of government as judges; we expect them to exercise judgment on difficult questions, with careful attention to craft, principle and conscience.236
Griswold, 381 U.S. at 520-22. Id. at 521. However bad for the country such a major structural coup might be, the courts would face retaliation from the political branches and retribution from the people long before it was accomplished. The resulting de-legitimization and declawing of the courts, rather than the diminution of the political branches, would be worse for the country. 235 Which Justice Black fully supports. [T]his Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. Id. at 520. 236 Lawrence Tribes comments in his well-regarded constitutional law treatise set the appropriate tone. At most, there is, first, a duty not to be pigheaded, to avoid becoming too certain of ones premises; and, second, a solemn duty to connect ones decisions with care to an intelligible view of the Constitution. Beyond that, one can offer no advice calculated to take judges off the hook; nor should one tryfor that is where, sometimes for better and sometimes for worse, our constitutional system has put them. LAWRENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 1370 (Foundation Press, 3d ed. 2000). Justice Benjamin Cardozos critique of judges who limit themselves to the mechanistic application of existing law is also instructive: Some judges seldom get beyond that process in any case. Their notion of their duty is to match the colors of the case at hand against the colors of many sample cases spread out upon their desk. The sample nearest in shade supplies the applicable rule. But, of course, no system of living law can be evolved by such a process, and no judge of a high court, worthy of his office, views the function of his place so narrowly. If that were all there was to our calling, there would be little of intellectual interest about it. The man who had the best card index of the cases would also be the wisest judge. It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins. He must then fashion
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Raoul Berger and Robert Borks criticisms of Griswold take largely a strict positivist view of rights, with only textually specific enumerated rights judicially enforceable. Along the way, they reject more expansive theories of implied rights like the Sign Post Interpretation Model relying on the Ninth Amendment,237 substantive fundamental notions of due process or equality238 and any system of developed meta rights.239 Judge Bork candidly concedes that he once thought such a meta system plausible and appropriate for finding individual autonomy rights,240 but apparently came to his more recent restrictive views after concluding that he could not logically derive a satisfactory system.241 This failure was preordained by the unduly rigid preconditions he imposed: a complete set of scientific principles for the derivation and description of the contour of autonomy rights, and the ability to derive them relying solely on a deductive logical process.242 Ultimately the lack of illusive and unrealistic perfection left the individual rights claims without judicial recourse, and in the hands of the messy utilitarianism of the political branches. Judge Borks approach is a classic example of the perfect is the enemy of the good. Once imperfect but legitimate systems of judicial development and enforcement of rights are allowed, of course, errors will be made. These errors will be of two types: those against the individual when a claim of right is erroneously denied and those against the will of the represented majority when an unjustified claim of right is erroneously allowed. Views about the propriety of judicial action in this class of
law for the litigants before him. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 20-21 (Yale University Press 1921). 237 See generally Raoul Berger, The Ninth Amendment, 66 CORNELL L. REV. 1, 1-14 (1981). Berger does seem to acknowledge the existence of rights beyond those given positively by government, or provided by concrete constitutional text: The words rights retained by the people . . . expressed a political postulate . . . that there remained reserved to the people an area of unsurrendered rights. Id. at 5-6. Yet he denies that such rights are enforceable by the federal judiciary: Justice Goldberg leaps too lightly from the existence of rights retained by the people to a federal power to protect them. Id. at 10; see also Raoul Berger, The Ninth Amendment, As Perceived by Randy Barnett, 88 Nw. U. L. REV. 1508 (1994) (critique of Barnetts Ninth Amendment theory). 238 See Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 11 (1971) (Most obviously, it follows that substantive due process . . . is and always has been an improper doctrine. Substantive due process requires the Court to say, without guidance from the Constitution, which liberties or gratifications may be infringed by majorities and which may not . . . . [M]ost of substantive equal protection is also improper.). 239 Id. at 8 (The judge must stick close to the text and the history, and their fair implications, and not construct new rights). 240 Id. 241 Id. 242 For a more comprehensive view of Judge Borks views in this regard, see generally ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990), and especially Chapter 12 of the book, entitled The Impossibility of All Theories that Depart from Original Understanding.

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cases turn largely on ones assessment of the relative costs of these two kinds of errors.243 Confirmed disciples of utilitarian democracy will rank high, and abhor, the cost to the general welfare when society is obliged to restrain its collective policies to accommodate the putative right for the lone individual. Those less sanguine about the just outcome of unchecked democratic majoritarian decision making, and committed to the principle of individual liberty as a constitutional check on democracy, will consider the cost bearable when spread thinly over the majority, but extreme when the full force of government coercion is erroneously imposed on the individual.244 Individual justices have also criticized substantive rights models in the Supreme Courts fundamental rights decisions since Griswold. These views have been mostly limited to Chief Justice Rehnquist and Justices Scalia, Thomas and White. Justice Black retired six years after Griswold in 1971, and the other Griswold dissenter, Justice Stewart, reconciled himself to its result based on his apparent 1973 epiphany accepting substantive due process after all in Roe v. Wade.245 Many commentators initially expected Justice Kennedy to join the critics based in large part on his votes in several abortion cases.246 But he joined Justice OConnors decisive opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey,247 reaffirming the basic premises and holding of Roe. His views are further confirmed in Romer v. Evans248 and Lawrence v. Texas.249 In fact, his Lawrence majority opinion gives particularly full-throated voice to the Griswold notion of personal autonomy:

See infra text accompanying notes 346-348 in Part V. The framers and the constitutional documents they drafted are surely to be numbered prominently among these. James Madison wisely warned of the dangers of tyranny from majority factions and discussed structural constraints (bicameralism, republican/representative form of government, checks and balances/separation of federal executive, legislative and judicial powers, and federalismthe vertical distribution of government powers between the national and state governments), and counter-majoritarian judicial enforcement of rights safeguards built into the Constitution and its Bill of Rights amendments to guard against the worst of such potential abuses. Or, as Justice Brandeis so aptly put it in discussing the purposes of Separation of Powers, one of the structural protections of liberty, as not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting). 245 410 U.S. 113, 167-68 (1973) (Stewart, J., concurring) (noting that the Griswold majority tried to avoid relying on due process, repeating his view that the Connecticut law did not violate any . . . specific provision of the Constitution[,] but conceding that Griswold was one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and [Stewart] now accept[ed] it as such). 246 See, e.g., Webster v. Reprod. Health Servs., 492 U.S. 490 (1989). 247 505 U.S. 833 (1992). 248 517 U.S. 620 (1996). 249 539 U.S. 558 (2003).

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Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct. The instant case involved liberty of the person both in its spatial and more transcendent dimensions.250

Troxel v. Granville251 reversed a state family court decision granting child visitation rights to grandparents against the wishes of the childs parent. The Court relied on application of a fundamental right of fit parents to make decisions concerning the care, custody and control of their children.252 Justice Scalia objected, contending that the Constitution does not give the Court power to enforce unenumerated rights.253 Justice Thomas concurred in the Courts result, but indicated that he too would be open to an argument in a future case that judicial enforcement of unenumerated rights is impermissible, at least as a matter of substantive due process.254 Bowers v. Hardwick255 and Lawrence v. Texas256 first approved, then rejected, the constitutionality of state statutes criminalizing private adult consensual homosexual conduct. Much of the difference in the views of the contending justices depended upon their framing of the nature of the claimed right. Justice Whites plurality in Bowers (and Justice Scalias dissent in Lawrence) presented the issue as whether the Constitution grants a specific fundamental right to homosexuals to engage in sodomy, while the Lawrence majority (and Justice Blackmuns earlier dissent in Bowers) conceived the claimed right in much broader terms of autonomy and intimate relationship choices in the home, including private matters of consensual adult sex.257 As is
Id. at 562. 530 U.S. 57 (2000). Id. at 66. Id. at 91-92 (Scalia, J., dissenting). Id. at 80 (Thomas, J., concurring). Justice Thomas noted that neither party has argued that our substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights, and therefore he avoided reconsidering the merits of substantive due process. Id. 255 478 U.S. 186 (1986). 256 539 U.S. 558 (2003). 257 In Bowers, Justice White framed the question as whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy[.] 478 U.S. at 190. Justice Blackmun vigorously rejected that analysis, comparing it to an assertion that Katz v. United States . . . was about a fundamental right to place interstate bets from a telephone booth, and stated that what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others. Id. at 199, 206. In Lawrence, Justice Kennedy opined that the anti-sodomy laws seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. 539 U.S. at 567. Justice Scalia claimed that the Court had failed to dispense adequately with the Bowers holding by noting that nowhere does the Courts opinion declare that homosexual sodomy is a fundamental right[.] Id. at 586 (Scalia, J., dissenting). For a more thorough analysis of this question, see Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057 (1990).
250 251 252 253 254

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often the case, the statement of the legal question and the analytical frame of reference presented goes a long way in determining the outcome of a decision. Different formulations, like those in Bowers and Lawrence, create a situation where the contending blocs of justices are largely talking past each other. Predictably, Justices White and Scalia concluded that homosexual sodomy is not a right deeply rooted in our Nations history and tradition.258 Justice Scalia further suggested that the Lawrence right is unprincipled unless the Court would also be willing to strike laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity[.]259 He launched his biggest salvo against the Court for what he claimed as its usurpation of the democratic process by largely sign[ing] on to the socalled homosexual agenda, . . . . [and] tak[ing] sides in the culture war, in both cases meaning a political agenda and war.260 Justice Scalia urged the Court to get out of the business of unenumerated liberty rights,261 and limit itself mostly to a much narrower process-oriented role of assuring, as neutral observer, that the democratic rules of engagement are observed.262 This critique, and his other calls for a very limited judicial role bound tightly by text and only the most specific examples from framers history and tradition,263 are
258 Bowers, 478 U.S. at 192; see id. at 192-94 (holding that, in light of a long history of criminal prohibition of sodomy, to claim that a right to engage in such conduct is deeply rooted in this Nations history and tradition . . . is, at best, facetious); Lawrence, 539 U.S. at 595-98 (Scalia, J., dissenting) (contending that Bowers conclusion that homosexual sodomy is not a fundamental right deeply rooted in this Nations history and tradition is utterly unassailable). 259 Id. at 590; see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 984 (1992) (Scalia, J., dissenting) (comparing abortion to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally intimate and deep[ly] personal decisions involving personal autonomy and bodily integrity). 260 Lawrence, 539 U.S. at 602. 261 Casey, 505 U.S. at 1002 (Scalia, J., dissenting) (We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining). 262 Lawrence, 539 U.S. at 602. 263 See, e.g., Michael H. v. Gerald D., 491 U.S. 110 (1989) (holding that a California law, which in most instances conclusively presumes that a child born to a married woman cohabiting with her husband is the child of the husband, does not violate the substantive due process rights of the biological father attempting to establish paternity and exercise parental visitation rights). Justice Scalia announced the Courts judgment in a plurality opinion, and expressed his views that to be recognized as a constitutional right a claim must not only be labeled a fundamental aspect of liberty, id. at 122-24, but also must be shown to be protected by history and tradition at the most specific level available for that tradition. Id. at 127-28 n.6. Though the dissent has no basis for the level of generality it would select, we do: We refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified. . . . Although assuredly having the virtue (if it be that) of leaving judges free to decide as they think best when the unanticipated occurs, a rule of law that binds neither by text nor by any particular, identifiable tradition is no rule of law at all. Id. Justices OConnor and Kennedy, concurring in part, would leave room for higher levels of generality in basing rights on historical tradition. Id. at 132. Justice Brennan, joined by Justices

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directed principally against what he labeled somewhat derisively the doctrine known as substantive due process[.]264 For reasons noted earlier, skepticism about a broad doctrine of substantive due process as a central model for rights that are not clearly textual is partially justified.265 Justice Scalia was of course correct in noting that [t]he Fourteenth Amendment expressly allows States to deprive their citizens of liberty, so long as due process of law is provided.266 But his conclusion that there is no right to liberty under the Due Process Clause267 is too facile and can only be brought within proper reach with an important modifier like no unfettered right or no absolute right. The Courts trio of decisions upholding Missouri, Washington and New York State restrictions on delicate end of life issues gives us a fascinating series of soul-searching opinions with somewhat surprising and nearly unanimous sympathy for a varied range of non-textual personal rights.268 Still, in refusing to go as far as the plaintiffs urged, Chief Justice Rehnquist in the majority opinion in Glucksberg again expressed great reluctance to expand substantive due process.269 The Chief Justice largely confined the doctrine to concrete examples that are deeply rooted in our legal tradition, and he eschewed Justice Souters broader approach.270 In fact, Justice Souter hardly proposed a radical or untethered view.271 But he did support a system for unenumerated rights based upon a broader array of sources, with a more open living tradition, and most importantly, he prescribed utilization of a judicial Common Law Method of interpretation of those sources.272
Marshall and Blackmun, dissenting, rejected both Justice Scalias exclusive reliance on tradition as a limiting source of liberty rights, and on any one specific level of generality when considering tradition as one relevant source among many others. Id. at 141-42. For an interesting debate about proper levels of generality, see Bruce Ackerman, Liberating Abstraction, 59 U. CHI. L. REV. 317 (1992); Frank H. Easterbrook, Abstraction and Authority, 59 U. CHI. L. REV. 349 (1992). 264 Lawrence, 539 U.S. at 593. 265 See supra Part II.B, discussing the justifications and limitations of Due Process as a Cauldron on Its Own Bottom Model. 266 Lawrence, 539 U.S. at 592. 267 Id. 268 Cruzan v. Mo. Dept of Health, 497 U.S. 261 (1990); Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997). 269 We must . . . exercise the utmost care . . . lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court[.] 521 U.S. at 720 (quoting Moore v. E. Cleveland, 431 U.S. 494, 502 (1977)). 270 [W]e have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nations history and tradition (quoting Moore, 431 U.S. at 502) . . . . Justice Souter . . . would largely abandon this restrained methodology[.] 521 U.S. at 720-21. 271 Id. at 752, 765-68 (Souter, J. concurring in the judgment). 272 Id. at 769-70. For additional support of the common law method, see David A. Strauss, Common Law, Common Ground, and Jeffersons Principle, 112 YALE L.J. 1717 (2003); David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996); see also

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Justice Scalia, in other writings, takes particular umbrage at this common law methodology.273 It makes sense that the substantive common law properly should occupy a considerably lower role in the hierarchy of legitimate sources of law in constitutional cases once we committed our nation to the supremacy of a written constitution. It is quite another thing, and a major error in Justice Scalias critique, to reject the common law method by lumping it together with largely superseded substantive common law rules. It is precisely common law courts and judges exercising the common law method of reasoning that the framers admired and had in mind in crafting the federal judicial branch of government. The framers expected Article III federal judges to be trained and steeped in this method, to exercise independence from the political branches and to employ this common law method in deciding constitutional cases. This context and history ought to satisfy even confirmed originalists or textualists. Most of the criticism and appeals from within the Supreme Court for the outright rejection, or narrowing, of personal rights that are not clearly textual were made in the questionable context of substantive due process. This is not surprising since, unfortunately, it has been very rare, even for proponents of more expanded rights on the Court, to go beyond a cursory mention of any model other than substantive due process, once Griswold was decided. The fault lies in both camps. Because the Substantive Due Process Model has limiting weaknesses, this has given the rejectionist and narrow positions more appeal and cachet than they deserve. Arguments that are plausible for cabining substantive due process often do not qualify as effective rejoinders to other approaches. These unfortunate circumstances have deprived us of a healthy debate over more sophisticated, nuanced and comprehensive models that might be proposed. This is the greater tragedy because the creative tension of such a debate is needed to test models and to promote the development of refined and improved models that will garner more legitimacy on and off the Court.274
BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 22-23 (Yale University Press 1921) (The common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively. Its method is inductive, and it draws its generalizations from particulars.); GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (Harvard University Press 1982). 273 ANTONIN SCALIA, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION, supra note 108 at 3-47; Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989). 274 There is at least modest cause to believe that Justice Thomas and Justice Scalia are each open to a second look for additional judicially enforceable rights in a model not confined to the ground of substantive due process. The trigger might be the Fourteenth Amendments Privileges or Immunities clause. See infra Part IV.A, and consider especially Saenz v. Roe, 526 U.S. 489, 527-28 (1999) (Thomas, J., with whom Rehnquist, C.J., joins, dissenting): [When] the Fourteenth Amendment was adopted, people understood that privileges or

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It is now useful to examine the interplay among several additional sources and methodologies in order to advance the formulation of a more comprehensive and satisfactory model for approaching fundamental rights analysis. Particular attention is given to sources that offer promise as meta, general or conceptual principles, and the corresponding interpretive methods to handle them. A. Reviving Ophelia: Privileges or Immunities of the Fourteenth Amendment Much of the reason for the Courts overweening focus on substantive due process can be traced to the cramped interpretations and stunted growth of the Privileges or Immunities Clause for almost all of the time since its ratification as part of the Fourteenth Amendment in 1868.275 This is primarily the result of the Courts 1873 five-to-four
immunities of citizens were fundamental rights . . . . Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating the meaning in an appropriate case. Id. (Justice Thomas does suggest he is likely to limit himself to an historically narrowed list of rights.); see also Clarence Thomas, The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment, 12 HARV. J.L. & PUB. POLY 63, 64 (1989) (promoting principles of natural law, as embodied in the Privileges or Immunities Clause, as the only alternative to the willfulness of both run-amok majorities and run-amok judges). Or the trigger might be notions of Equality, see infra Part IV.B, or the composite model as suggested infra in Part V, that relies on several constitutional textual triggers outside of the Due Process Clause. Justice Scalia suggested in his Planned Parenthood of Se. Pa. v. Casey dissent, 505 U.S. 833, 980 n.1 (1992), that his usual demand for only the most specific level of generality available of any historical tradition of rights under substantive due process should give way when there is other text supporting a broader right. His example was that the Equal Protection Clause, with its broad promise of racial equality, should trump more narrow specific tradition outlawing interracial marriage even after the adoption of the Fourteenth Amendment in 1868, thereby justifying the Courts 1967 decision striking down Virginias criminal anti-miscegenation law in Loving v. Virginia, 388 U.S. 1 (1967). He also commented favorably about the clause in Scalia, The Rule of Law as a Law of Rules, supra note 273, at 1178 (The Equal Protection Clause epitomizes justice more than any other provision of the Constitution.). 275 U.S. CONST. amend. XIV (1868) (No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States). The original Constitution also, of course, contains a privileges and immunities clause, U.S. CONST., art. IV, 2, but it is not a rights provision in quite the same sense as the Fourteenth Amendment. The first three Articles of the Constitution deal primarily with the creation, separation of powers and checks and balances among the three federal branches of government. The topics of Article IV (full faith and credit; privileges and immunities; extradition of criminal suspects; rendition of escaped slaves; guaranteeing the territorial integrity of the existing states as the nation grew; governmental property disposition; state republican form of government guarantee; and a federal pledge to protect each state against invasion and, at the request of the state, internal domestic violence)

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decision in Slaughter-House Cases,276 rejecting plaintiff-butchers contentions that Louisianas law granting a regulated monopoly to another company violated their rights under the Civil War Amendments. The real battle between Justice Miller, writing for the majority, and the dissenting views of Justices Field and Bradley, was whether the Fourteenth Amendment should have a narrow or broad construction. A cursory look at any contemporary constitutional law casebook, or at the docket of the Supreme Court, shows that Justice Millers victory for the narrow view was temporary, and that a broader, more generous view of the Civil War Amendments has won the bigger war in a rout. The Privileges or Immunities Clause, however, suffered a much more lasting injury as collateral damage largely due to historical accident. Ironically, this is because all of the parties and justices in Slaughter-House Cases cursorily dismissed plaintiffs due process, equal protection and Thirteenth Amendment arguments as nonsubstantial, and treated the privileges or immunities claim as the one weighty constitutional challenge that had to be taken seriously. This left the Due Process and Equal Protection Clauses as largely unformed vessels that were much easier to fill by the Court as it began to expand its view of rights protections. Conversely, the more detailed and crimped interpretation of privileges or immunities in 1873 erected a more formidable barrier. Any subsequent court inclined toward a robust interpretation of privileges or immunities would be required to reject precedent directly, a distasteful prospect especially since it has not been necessary for the other less clearly interpreted clauses. Finally, after one hundred twenty-six years, the Supreme Court took the first substantial intrepid step in this direction in Saenz v. Roe.277 It is still early days of course and it remains to be seen if Saenz will
strongly suggest that it was limited to dealing primarily with comity among the states, discriminatory treatment of other states citizens by a state, and the constitutive and intergovernmental structural parts of the Constitution, including the federalist relationship between the central government and the states. This was Justice Millers view in SlaughterHouse Cases, 83 U.S. (16 Wall.) 36, 77 (1873) ([The Article IV clauses] sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens . . . the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.); see also John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385, 1400-01 (1992) (The interstate comity reading[,] which requires states to give out-of-state Americans at least the same privileges and immunities that their own citizens enjoy[,] was very prominent and appears to have been the mainstream interpretation of the Article IV clause in the first half of the 19th century). It can be expected that Article IV will, therefore, be of only limited structural use (though any definitional content of the words privileges and immunities may be of more use) in helping to interpret the textually similar provision in the Fourteenth Amendment, which is clearly an individual rights provision listed among exclusively rights provisions. U.S. CONST. amend. XIV, 1. 276 83 U.S. 36 (1873). 277 526 U.S. 489 (1999).

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be confined mainly to right to travel issues, or whether it truly presages a revival and fresh comprehensive re-conception of privileges or immunities. It is to be hoped that the latter is the case, and that Saenz is indeed the long-awaited harbinger of broad renewed Supreme Court interest.278 The Privileges or Immunities Clause is a more natural source of substantive fundamental rights compared with Due Process, and it offers a number of other advantages for the scaffolding of a robust composite model. To begin, the Privileges or Immunities Clause does not suffer any of the textual awkwardness of substantive due process.279 Both words, privileges and immunities, positively evoke substantive concepts of rights at least as much as procedural ones, and the word immunities in particular is a powerful verbal repository for negative checking rights against the government.280 Similarly, this clause is a more comfortable textual fit for much of the Courts work incorporating clauses of the Bill of Rights.281 Though most of the incorporated clauses may be seen as strictly procedural in character, aspects of freedom of speech and press, the religion clauses, the just compensation clause, the ban on excessive fines and cruel and unusual punishments are clearly substantive, and their incorporation through due process is less than seamless. An additional conundrum is also solved. Sole reliance on the Due Process Clause for incorporation would seem to imply that due process itself must contain the content of the incorporated Bill of Rights clauses. If so, an objector could claim this would mean that Fifth Amendment due process also contains the content of the other Bill of Rights provisions leaving them technically as mere surplusage, a presumptively inadmissible interpretation.282 And, unlike due process, Privileges or
278 In this regard it is promising that Justice Thomas and Chief Justice Rehnquist, although dissenting, expressed their openness to finding fundamental Privileges or Immunities rights. See supra note 274. Justice Scalia joined the majority opinion in Saenz, demonstrating directly his willingness to rely on the Privileges or Immunities Clause for rights he would not have found elsewhere. 279 See supra Part II.B.2. 280 This includes rights such as Griswolds shield of personal autonomy, and the qualified right to be let alone from unjustifiable intrusion by the Government[.] Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (The makers of our Constitution . . . conferred, as against the Government, the right to be let alonethe most comprehensive of rights and the right most valued by civilized men.). 281 See generally Kevin Christopher Newsom, Setting Incorporation Straight: A Reinterpretation of the Slaughter-House Cases, 109 YALE L.J. 643, 736 (2000) (contending that the Privileges or Immunities Clause could replace due process not only as a means for incorporating substantive Bill of Rights freedoms, but also as a means for protecting rights not explicitly specified in the constitutional text); Michael Kent Curtis, Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States, 78 N.C. L. REV. 1071 (2000) (applying originalist analysis to the Privileges or Immunities Clause and finding support for Justice Blacks claim that the Clause applies the Bill of Rights to the States). 282 It cannot be presumed that any clause in the constitution is intended to be without effect;

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Immunities is not burdened with the unfortunate legacies of Dred Scott or Lochner. There is another point of text and structure in favor of Privileges or Immunities. After defining the conditions for and granting citizenship, Section 1 of the Fourteenth Amendment identifies three kinds of rights and divides them into a hierarchical structure. Privileges or Immunities are protected for only the most restricted class of individuals, United States citizens; equal protection is afforded to all persons within each states jurisdiction, and due process applies to the broadest class of individuals, any person at all deprived of life, liberty or property by the state. To the extent that citizenship is a reasonable surrogate, at least for some purposes, for identifying those who have been inculcated with constitutional values and are willing to undertake the duties and obligations imposed by the Constitution, it makes sense that the Privileges or Immunities Clause should afford the broadest array of rights. These rights can be expected to be quintessentially American, and specifically substantively and procedurally more protective than the baseline civilizing floors of fundamental fairness rights of due process, or of equal protection rights.283 Justice Miller based his exceedingly narrow Slaughter-House view of Fourteenth Amendment privileges or immunities on three flawed premises: that because the Civil War amendments were adopted primarily to eliminate African slavery and to address the legal problems of the former slaves, their construction should be confined almost exclusively to deal with those problems even where the language of the amendments is general;284 that anything that is a privilege and immunity for purposes of Article IV is by that fact alone not one for the

and therefore such construction is inadmissible, unless the words require it. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). 283 Equal protection rights are also different in character from rights under either of the other two clauses. Both privileges or immunities and due process regulate the governments relationship with the single individual, to a large extent without regard for how the government relates to other individuals. Equal protection, on the other hand, only arises when the state, consciously or inadvertently, classifies individuals into two or more groups for the purpose of distributing benefits or penalties. Equal protection analysis inherently requires comparisons of individuals or groups, and in this sense is more comparative or relativistic than analysis under the other clauses. This conditional aspect has led at least one commentator to erroneously dismiss equal protection rights as mere phantoms. See Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537, 542 (1982) (arguing that the entitlements people mistakenly attribute to the idea of equality all derive from external substantive rights). Westen continues his argument in Peter Westen, The Meaning of Equality in Law, Science, Math, and Morals: A Reply, supra note 145, at 604 and Peter Westen, To Lure the Tarantula From its Hole: A Response, 83 COLUM. L .REV. 1186 (1983). 284 Slaughter-House Cases, 83 U.S. (16 Wall.) at 71-72. With respect to the Equal Protection Clause, for example, Justice Miller incorrectly predicted that the clause would never be used except in cases involving discrimination against the negroes as a class, or on account of their race[.] Id. at 81.

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Fourteenth Amendment;285 and that the Civil War amendments did not work a substantial re-balancing of federalism, thus still leaving the states as the sole protectors of their own citizens non-race related rights.286 The combination of Justice Millers three errors with the correct structural point that Article IV is limited primarily to addressing interstate comity and fair treatment of other states citizens,287 led him to take away with his left hand the force of privileges and immunities rights that he tantalizingly held out with his right hand.288 Stripped of error, however, Justice Millers discussion of the words privileges and immunities offers the beginning of meaningful content for them as words which can now be used in a Fourteenth Amendment Meta Principle. Relying on Corfield v. Coryell,289 he quoted Justice Washingtons discussion of Article IV as describing these expressions to those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and he then elaborated that they encompass nearly every civil right for the establishment and protection of which organized government is instituted.290 While the dissenters relied to some extent on preconstitutional concepts of natural law,291 Justice Bradleys dissent also
285 Justice Miller drew a distinction between privileges and immunities of the citizen of the United States, and privileges and immunities of the citizen of the State, and held that it is only the former which are placed by [the fourteenth amendment Privilege or Immunities] clause under the protection of the Federal Constitution . . . . the latter must rest for their security and protection where they have heretofore rested, id. at 74-75, that is with the States. 286

Was it the purpose of the fourteenth amendment . . . to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? . . . [T]hese consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions . . . . We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them. Id. at 77-78. 287 See supra note 275. 288 After describing the Privileges and Immunities of Article IV quite broadly, Justice Miller eliminated most of their efficacy by stating that these fundamental principles are . . . . subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole. Slaughter-House Cases, 83 U.S. (16 Wall.) at 76 (quoting Corfield v. Coryell, 6 F. Cas. 546, 551-52 (C.C.E.D. Pa. 1823)). He further contended that Article IV: did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens. Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. Slaugher-House Cases, 83 U.S. (16 Wall.) at 77. 289 6 F. Cas. 546 (C.C.E.D. Pa. 1823). 290 Slaughter-House Cases, 83 U.S. (16 Wall.) at 76 (emphasis added). 291 Id. at 96-97 (Field, J. dissenting) (stating his opinion that Fourteenth Amendment

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expressly and correctly concluded that the Fourteenth Amendment textually embodies the intention of the people of this country . . . to provide National [Constitutional] security against violation by the States of the fundamental rights of [their own, or another States,] citizen.292 In sum, fundamental rights protected by the federal Constitution as Privileges or Immunities do not derive their existence from [the State], and cannot be destroyed by [State] power.293 Supreme Court dicta occasionally invoked Privileges or Immunities even before Saenz.294 Other commentators have suggested more judicial reliance on this clause, and have already begun the work of giving analytical form and content to the Fourteenth Amendment Privileges or Immunities Clause.295 For this work to bear fruit, scholars
privileges or immunities refer to the natural and inalienable rights which belong to all citizens . . . of all free governments) (emphasis added). Justice Field also referred to the natural right of every Englishman[,] and continued that there are inalienable rights, rights which are the gift of the Creator, which the law does not confer, but only recognizes. Id. at 104-05; see also id. at 114 (Bradley, J. dissenting) (there are certain fundamental rights . . . of citizens of any free government). 292 Id. at 122 (Bradley, J., dissenting) (emphasis added). Justice Fields principal dissent, joined by all three of the other dissenters, the Chief Justice, and Justices Swayne and Bradley, asserted a similar conclusion that the Fourteenth Amendment was intended to, and does, protect the citizens of the United States against the deprivation of their common rights by State legislation[,] id. at 89, that is, to place these rights under the protection of the National government. Id. at 93; see also id. at 100-01. 293 Id. at 95-96. 294 See, e.g., Hague v. Comm. for Indus. Org., 397 U.S. 496, 515 (1939) (stating that use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens); Edwards v. California, 314 U.S. 160, 181-186 (1941) (Jackson, J., concurring) (locating a right to interstate migration within the Privileges or Immunities Clause). The Clause also played a role in the incorporation debate. The Court initially rejected a series of arguments that the Fourteenth Amendment absorbed or incorporated the Bill of Rights protections against the states, and that privileges or immunities of citizens of the United States included the provisions of the Bill of Rights. See Twining v. New Jersey, 211 U.S. 78 (1908) (holding that the Clause does not apply the Fifth Amendments protection against compulsory self-incrimination to the states); Palko v. Connecticut, 302 U.S. 319, 326-28 (1937) (reaffirming Twining and rejecting the idea of incorporation of double jeopardy though, curiously, describing the protections of the Bill of Rights as immunities and privileges); Adamson v. California, 332 U.S. 46, 51-53 (1947) (reaffirming Twining and Palko). Justice Black continuously and vigorously opposed this view. See Adamson, 332 U.S. at 68-92 (Black, J., dissenting); Duncan v. Louisiana, 391 U.S. 145, 166 (1968) (Black, J., concurring) (reasserting his position that privileges and immunities were an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States. What more precious privilege of American citizenship could there be than that privilege to claim the protections of our great Bill of Rights?). For further historical examples of judicial use of the Clause and the term privileges and immunities, see Curtis, supra note 281, at 1124-32, 1138-43; see also J. Harvie Wilkinson III, The Fourteenth Amendment Privileges or Immunities Clause, 12 HARV. J.L. & PUB. POLY 43, 44-48 (1989). 295 See, e.g., Curtis, supra note 294, at 1071 (arguing that privileges or immunities includes the rights provisions of the Constitution); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L. J. 1385 (1992); Philip B. Kurland, The Privileges or Immunities Clause: Its Hour Come Round at Last?, 1972 WASH. U. L.Q. 405 (1972) (identifying the

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and judges need to pay careful attention to the Constitutional text, proto-constitutional documents such as Magna Carta, the English Bill of Rights and the Declaration of Independence, original historydirect and inferential, precedent, moral philosophy, further legal scholarship, and sound principles of Constitutional construction. Saenz itself points Privileges or Immunities along a promising path as a worthy candidate as one of the Constitutions expressly stated meta principles. In affirming the concrete right of more newly arrived California citizens to receive the same welfare benefits as longtime residents, the Court constructed a strong composite right made up of the more general concepts of citizenship and personal mobility.296 As noted elsewhere, this is precisely the sort of meta principle one would expect the framers to include in a rights-oriented constitution, with composite structure adding epoxy-like strength.297 B. Notions of Liberty, Equality, and Pursuit of Happiness: The Declaration and The Constitution

Various notions of liberty, equality and pursuit of happiness have played prominent and often controversial roles throughout the history of American constitutionalism. The Declaration of Independence famously asserts that all men are created equal, and lists Liberty, and the Pursuit of Happiness among the unalienable rights of all men.298 But the diversity of notions of liberty, equality, and the pursuit of happiness were most often left implicit and contradictory in our 1789 Constitution. The first ten amendments (the Bill of Rights), adopted just two years later in 1791, began to give more concrete form and content to the founders normative views of liberty and pursuit of happiness.299 Yet the Bill of Rights almost entirely ducked two
Clause as a better source of substantive rights than due process or equal protection); Thomas, The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment, supra note 274 (asserting that proper application of the Clause should be guided by the Framers natural law philosophy); Laurence H. Tribe, Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the FutureOr Reveal the Structure of the Present? 113 HARV. L. REV. 110, 183 (1999) (contending that the core idea around which the privileges or immunities of United States citizenship should be elaborated . . . [is] the right to individual self-government, as embodied in, but not exhausted by, some . . . parts of the Bill of Rights); TRIBE, AMERICAN CONSTITUTIONAL LAW, supra note 236, at 1312-1321. 296 Saenz v. Roe, 526 U.S. 489, 500-07 (1999). 297 See supra notes 65-80 and accompanying text; see generally infra Part V. 298 Interestingly, Jeffersons draft castigated the British King for the execrable commerce of the slave trade, but this section of the draft was deleted. See WILLS, supra note 158, at 65-75. 299 Much of the content of the Bill of Rights is dedicated to guaranteeing aspects of liberty and ensuring sufficient freedom to allow for the meaningful pursuit of happiness; though these freedoms were initially only protected against federal government encroachment. The Fifth Amendment Due Process Clause conditionally protects liberty directly, but substitutes property

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important issues: first, its provisions neglected to protect liberty from encroachments by the states, and second, the Bill of Rights essentially ignored equality, presumably because of the Constitutions acceptance of slavery. The advent of a candid rededication to the Declarations promises, and the addition of express rights clauses to the Constitution binding the states, had to wait for the Civil War. President Lincoln set a noble tone at Gettysburg with his eloquent address of just 272 words.300 His clarion call, appealing to our better angels, looked to our nations past, present and future. He reflected backwards on the Declaration to declare that our nation was conceived in liberty, and dedicated to the proposition that all men are created equal. He joined his countrymen in their present grief and led a weary nation at a decisive moment, offering finally the prospect of victory while mourning the war dead, eulogizing those who gave their lives (the last full measure of devotion) for the founding principles. And he called to the future for a new birth of freedom to rededicate the nation to the Declarations exalted aspirational ideals. The next two years saw the conclusion of the bloody war, President Lincolns reelection, his sublime second inaugural address promising to bind up the nations [grievous] wounds . . . with malice toward none; and his subsequent assassination. In 1868, the Fourteenth Amendment was ratified, giving the Constitution its first full and explicit recognition of the Declarations promise of equality in the form of the Equal Protection Clause. Five years later, Justice Miller, speaking for the majority in Slaughter-House Cases, made the following comment about equal protection: We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.301 The last sixty years have exposed Justice Millers prediction as among the least prescient of all judicial prognostications. The explosion of equal protection litigation is undoubtedly one of the hallmarks of the modern Supreme Court. Two quite different main drivers of the increased attractiveness of equal protection analysis for the solution of constitutional disputes were well described by Justice Jackson in his concurring opinion in Railway Express Agency v. New
for the pursuit of happiness in the Declarations triad of Life, Liberty, and the Pursuit of Happiness. 300 See generally WILLS, LINCOLN AT GETTYSBURG, supra note 169. 301 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873). Justice Bradley, in his dissent, took a markedly different approach which has been vindicated in the fullness of time: It is futile to argue that none but persons of the African race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed. Id. at 123.

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York.302 The first is the bedrock principle of justice that politically responsive branches of government are far less likely to impose iniquity, intentionally or otherwise, on one group of people if there is a legally binding requirement that the rigors of the law also must be borne by the majority and the lawmakers themselves.303 The second is the contention that a judicial ruling striking down government action on equal protection is preferable to other grounds of decision (e.g. due process, privileges or immunities, or other non-comparative principles of justice) because it leaves freedom for political response, and thereby softens inter-branch and public conflict with the courts.304 The idea is that if the majority feels strongly enough about a judicially blocked policy, it can overcome an equal protection decision by reenacting the policy and applying it to everyone, but will more often have to change the Court, or the Courts mind, or amend the Constitution, to overcome a substantive due process (or privileges or immunities) decision. Much of the Courts equal protection work concerns identifying protected groups, defining suspect classes and analyzing the immutable characteristics of personal status that trigger heightened judicial scrutiny.305 In addition to the essential paradigm of racial equality, the Equal Protection Clause has been construed to provide an important counter-majoritarian check on various classifications that have a differential impact based, inter alia, on national origin, religion, sex, alienage, biological parentage and illegitimacy, andfor some purposes and to a lesser extentdisability, socio-economic status, sexual orientation and age. This has given rise to a dizzying multiplicity of levels of equal protection scrutiny, which may be counted in different ways, but practically amount to at least six variations: low-level rational relationship;306 rational relationship with bite;307 mid-level;308
302 303

336 U.S. 106 (1949). See id. at 112-13 (Jackson, J., concurring): This equality is not merely abstract justice. The framers of the Constitution knew . . . that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. . . . Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.

Id.
304

Invalidation . . . on due process grounds leaves ungoverned and ungovernable conduct which many people find objectionable. Invocation of the equal protection clause, on the other hand, does not disable any governmental body from dealing with the subject at hand. It merely means that the prohibition or regulation must have a broader impact. Id. at 112. 305 The intellectual power behind these ideas may be traced back to Justice Stones famous footnote in United States v. Carolene Prods. Co., 304 U.S. 144, 151-54, n.4 (1938), suggesting that extra judicial vigilance is warranted to guard against the risk that, based upon prejudice, the political branches may deal unfairly with discrete and insular minorities. 306 See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483 (1955) (applying the very lowest and most forgiving level of scrutiny to general social, welfare, economic policies).

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exceedingly persuasive mid-level;309 strict but not fatal;310 and classic strict scrutiny.311 This is enormously important in its own right, and it serves also as background context for two other aspects of equality analysis that are more closely connected with our discussion of substantive fundamental rights. The first of these substantive equality strands is the Supreme Courts recognition of fundamental (and quasifundamental) rights under the Equal Protection Clause that serve as alternative triggers for different levels of heightened equal protection scrutiny. The second is a more general consideration of the validity of equality as another central principle, joining liberty, due process, privileges or immunities and the pursuit of happiness as meta components for a composite substantive rights model. As to the first point, the Supreme Court has increasingly enforced a number of rights that are not clearly textual, but that it considers fundamental or quasi-fundamental only for equal protection purposes. Among these are the right to vote,312 meaningful access to courts and
307 See, e.g., Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) (overturning the denial by a Texas city of a permit for a group home for mentally retarded people, ostensibly on rational relationship scrutiny, but requiring actual reasons and a showing of a real, not just fanciful, contribution to legitimate ends). 308 See, e.g., Craig v. Boren, 429 U.S. 190 (1976) (requiring an important governmental interest and a substantial relationship between the classification and that interest in sex discrimination cases). 309 See, e.g., United States v. Virginia, 518 U.S. 515 (1996) (using a toughened version of mid-level scrutiny to invalidate the Virginia Military Institutes male-only admissions policy, and requiring an exceedingly persuasive justification, id. at 531, for a disadvantaging gender classification that excludes women). 310 See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003) (Justice OConnors opinion for the Court uses a slightly relaxed strict, but not fatal, level of scrutiny to approve some forms of racebased affirmative action for higher education admissions). 311 Invidious race based discrimination is impermissible and per se prohibited. See, e.g., Loving v. Virginia, 388 U.S. 1, 10 (1967) (holding unconstitutional Virginias anti-miscegenation statute, and stating that: [t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States). Other racebased classifications disadvantaging members of a minority race are presumptively and almost invariably unconstitutitional. See, e.g., Palmore v. Sidoti, 466 U.S. 429 (1984) (reversing a state court order transferring child custody, ostensibly to protect the daughter from the social stigma of living in a mixed race household, from the mother to the father, both Caucasian, after the mother married an African American). Chief Justice Burger, speaking for a unanimous Court, said: Classifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns . . . . Such classifications are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be necessary . . . to the accomplishment of [that] purpose. Id. at 432-23. Chief Justice Burger gave an accurate statement of the strict, and almost invariably fatal, scrutiny that applies to disadvantaging racial classifications. 312 See, e.g., Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966) (holding that the right to vote, once granted to the electorate on an issue, is fundamental as a matter of equality and cannot be burdened by a $1.50 poll tax, without deciding whether there is an independent constitutional right to vote); Baker v. Carr, 369 U.S. 186 (1962) (holding a challenge to malapportionment in state legislative voting districts to be justiciable under the Equal Protection Clause, though the Court had previously held a similar claim to be a non-justiciable political

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full participation in judicial proceedings where important liberty interests are at stake,313 the right to travel,314 the right to marry,315 the right to resist involuntary sterilization316 and the right to a basic level of education.317 A further range of cases rejected certain methods for distributing State benefits,318 disadvantaging alterations of the political landscape319 or targeting a single group for disfavor or animus.320 These
question under the Guarantee Clause of Article IV); Reynolds v. Sims, 377 U.S. 533 (1964) (adopting the one person, one vote requirement for successful Baker challenges); Bush v. Gore, 531 U.S. 98 (2000) (Although there is much controversy about the wisdom of the Courts decision to get involved at all in the disputed Presidential election between candidates Bush and Gore, and about the remedy fashioned by the five member majority, it is notable that seven justices agreed that the voting citizens in a state have an equal protection fundamental right to have their votes counted with an evenhanded method throughout the state). 313 See, e.g., Griffin v. Illinois, 351 U.S. 12 (1956); Douglas v. California, 372 U.S. 353 (1963); Halbert v. Michigan, 545 U.S. 605 (2005) (all to the effect that an indigent criminal defendant must be provided with the necessary toolsfor example, a free transcript and counselfor a meaningful appeal where the State provides an appeal of right for non-indigent defendants from a conviction or nolo contendere plea); see also Boddie v. Connecticut, 401 U.S. 371 (1971); M.L.B. v. S.L.J., 519 U.S. 102 (1996) (holding that indigents cannot be blocked from divorce court, or appeal of an order terminating parental rights, by non-waivable court costs or filing fees in civil cases involving these important individual liberty interests); Bounds v. Smith, 430 U.S. 817 (1977); Lewis v. Casey, 518 U.S. 343 (1996) (holding that prison inmates are entitled to reasonable tools, e.g. basic library materials, for post-conviction and habeas corpus petitions raising fundamental constitutional rights claims). 314 See, e.g., Shapiro v. Thompson, 394 U.S. 618 (1969). Shapiro, and other similar equal protection cases striking down unduly burdensome durational residency requirements limiting access for new state residents to important state benefits, may now have been largely superseded by the Courts more recent Privileges or Immunities analysis in Saenz v. Roe, 526 U.S. 489 (1999). See supra notes 73-80 for additional discussion of the varied sources for the constitutional right to travel. 315 See, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978) (striking down a Wisconsin law denying a marriage license to anyone with an unpaid child support obligation); Loving, 388 U.S. 1 (holding unconstitutional Virginias anti-miscegenation statute). 316 Skinner v. Oklahoma, 316 U.S. 535 (1942). 317 Compare Plyler v. Doe, 457 U.S. 202 (1982) (using heightened scrutiny to strike a Texas school district policy requiring undocumented children of illegal aliens to pay full out-of-district tuition, which effectively excluded them from public education) with San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (upholding a Texas law which funded schools based on local property taxation, resulting in sharp disparities between rich and poor districts, but not excluding any of the plaintiffs from public education). In both cases, the Court refused to find education to be an independent fundamental right. 318 See, e.g., Zobel v. Williams, 457 U.S. 55 (1982) (striking down an Alaska law which distributed part of the States oil revenues to Alaska citizens differentially based on the length of their residence. The Court condemned as unconstitutional the schemes creation of twenty subclasses of citizenship); see also the discussion of Saenz v. Roe, supra notes 79, 80, 277, 296 and accompanying text. While Saenz relies on the Privileges or Immunities and Citizenship Clauses, rather than the Equal Protection Clause, the Courts opinion echoes Zobels concerns about the fundamental nature of equal citizenship. Saenz, 526 U.S. at 506-07 (The Citizenship Clause of the Fourteenth Amendment does not provide for, and does not allow for, degrees of citizenship based on length of residence. It is equally clear that the Clause does not tolerate a hierarchy of 45 subclasses of similarly situated citizens based on the location of their prior residence.). 319 See, e.g., Hunter v. Erickson, 393 U.S. 385 (1969) (holding unconstitutional a city charter amendment, adopted by Akrons voters in response to the enactment by their city council of an

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last three types of decisions can be best understood as recognizing an emerging substantive fundamental right of equality of citizenship. Once the Court has ranked a claimed right as fundamental for equal protection purposes, differential impairment of that right by the government for separate groups of people triggers heightened scrutiny that most often results in a finding of unconstitutionality. This result obtains even in cases where the affected groups lack sufficient indicia of suspect class, and where the Court would be unwilling to recognize the right as fundamental outside the confines of an equal protection analysis. Since there are other sources for fundamental rights besides equal protection, and since governmental action impairing these fundamental rights will be subject to strict scrutiny analysis, it is fair to ask whether one should bother to consider fundamental rights under notions of equality at all. There are several factors that argue for an affirmative answer to this important question. First, as noted earlier, judicial restraint may result in the Court preferring to strike a government action under the Equal Protection Clause, rather than having to make a more distasteful and inflexible determination under other constitutional provisions that the governments interest is not, and can never be, sufficient. And, as discussed previously in Parts II.B and III of this Article, at least one of the other popular candidates, substantive due process, has notable weaknesses as a significant source of substantive fundamental rights. Second, even in situations where the government has a powerful interest that might justify the impairment of an individuals fundamental right and the government is careful to intrude on the right as narrowly as possible, our notion of equality may still impel us to prohibit governmental action if the same rights of too many other similarly situated individuals are left unimpaired. This is an under-inclusiveness problem that is best handled by equality. Suppose, for example, the government had a pool of offenders who all individually deserved the death penalty, consistent with the Courts cruel and unusual punishment decisions, but the government
anti-discrimination fair housing ordinance, requiring that any such ordinance adopted by council also had to be approved by the voters. The Court concluded that the charter amendment improperly disadvantaged groups advocating fair housing by making it structurally more difficult for them to obtain legislation compared with other groups seeking other types of legislation); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) (striking down on similar grounds a Washington State initiative requiring local school boards to assign students to their nearest school, thereby terminating the Seattle school districts busing program, which had been voluntarily adopted to achieve greater racial balance in Seattles public schools, while leaving other issues of school policy at the local level). 320 See, e.g., Romer v. Evans, 517 U.S. 620, 632 (1996) (striking down Amendment 2 of the Colorado Constitution, which prohibited any government action to prevent discrimination based on sexual orientation, and noting that the Amendment seems inexplicable by anything but animus toward the [homosexual] class it affects).

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chose to execute only thirty percent of them selected consciously by random lots. This hypothetical, and other real cases already mentioned, including those involving voting, access to courts for appeal, access to education, certain distributions by the state of material benefits, some unfair alterations of the political landscape and demonstrated animus toward a particular non-suspect group of citizens, indicate that there are rights which are fundamental for equal protection purposes even though these rights would not be counted as fundamental based on other sources or for other purposes. Put another way, one may conclude that equality is a more appropriate (and sometimes the only) reservoir for some fundamental rights compared with other constitutional sources. In another class of cases, equality is tailor-made to serve on its own as one of the meta principles in the composite theoretical substantive rights model proposed in Part V of this Article, or importantly as one of several meta sources all pointing to the same concrete fundamental right shared among them. John Rawls, in his seminal 1971 book, A Theory of Justice,321 argued that equality is the bedrock principle of justice that a hypothetical rational and just liberal contractarian society would insist upon at its foundational origin. His idea contained a weak form of social and economic equality with no guarantee of equal wealth or utility outcome for any individual, except for the minimal requirement that there must be some general societal benefit from a program that enabled the well-off to get richer, in particular. . . the least advantaged members of society322 must be better off than they were before. More to the point of our discussion exploring the viability of equality as a meta principle for a proposed composite model, Rawlsian Justice also posits a stronger form of equality in the assignment of basic rights and duties[.]323 Rawls argument as a matter of moral philosophy is that this latter strong form of equality would logically give rise to the sort of procedural and substantive liberty and autonomy rights that are the concern of the various models constructed in this Article. Rawls does not have an inherent patent on a correct view of moral philosophy, or rights, but his work is impressive and gains credence from his acknowledgment that the derivation of rights is not infallible or purely deductive. Instead, he wisely urged an interactive feedback model seeking equilibrium among the abstract thought experiments of his moral philosophy,324 experience with concrete cases and intuitive and cultural/historical notions of justice. This kind of dynamic

JOHN RAWLS, A THEORY OF JUSTICE (Oxford Univ. Press rev. ed. 1999) (1971). Id. at 13. Id. Thought (or gedanken) experiments combined with observational data have played a powerful role in scientific understanding of the physical universe, including Einsteins famous formula, E=mc2.

321 322 323 324

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feedback model, with its reassuring safeguard of relying on many different legitimate sources, has much to offer any coherent composite model of judicially discoverable and enforceable rights. Of course one may ask whether moral philosophy is a legitimate concern of constitutional interpretation at all. Like the Declaration of Independence, the Articles of Confederation and perhaps to a lesser extent the Preamble to the Constitution itself, moral philosophy cannot claim the direct force of law under the Supremacy Clause.325 But there is an unmistakable confluence of the Rawlsian notion pairing equality and liberty rights, with a very similar coda in our Declarations assertion that the essence of equality as a birthright is joined unalienably with life, liberty and the pursuit of happiness,326 and with the Preambles promise to secure the blessings of liberty to ourselves and our posterity. At a minimum, the moral philosophy of the Enlightenment exerted strong influence on the thinking of a number of the key founders of our constitutional framework: Jefferson, Hamilton, Madison and Mason among them. Understanding the philosophical training and the cast of mind of these men breathes life and context into our constitutional documents. Furthermore, the logic of the Meta Up and Down and Sign Post Interpretation Models,327 adds considerably to the claim that preConstitutional and more recent proto-Constitutional documents, together with classical and current sound moral philosophical reasoning, are relevant for more than just the originalist light they shed. To borrow a felicitous phrase from Harry Jones, they serve as a brooding omnipresence of constitutional law.328 To take two examples, the Declaration of Independence and the moral philosophical discourse about liberty and justice are not independent sources of judicially enforceable constitutional rights by themselves, but they legitimately help to give important shape and dimension to the constitutional textual norms (meta principles) of Equality, Liberty, Citizenship and Privileges or Immunities, which in turn lead to more specific rights applicable to concrete cases.329 This discussion helps to put into proper perspective the Supreme Courts too limited periodic intonation: The Equal Protection
U.S. CONST. art. VI, 2. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). The framing generation was characteristically wise in offering everyone the freedom to pursue happiness without falsely promising to deliver its attainment. 327 See supra Diagrams 5 and 6. 328 Harry W. Jones, The Brooding Omnipresence of Constitutional Law, 4 VT. L. REV. 1 (1979). 329 In this sense, the meta principles are all examples of constitutional geometric solids, to be cut by the Court with interpretive planes to give concrete rights with form and shape. See supra Diagram 7 and text accompanying note 148 for elaboration of the analogy of the Geometrical Solids and Planes Model.
325 326

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Clause . . . creates no substantive rights.330 Kenneth Karst has been especially influential among thinkers reminding us that equality has in fact always had substantive content, and that it matters.331 Among the fundamental rights recognized thus far by the Supreme Court for equal protection purposes, the most intriguing is the emerging right of equal citizenship.332 For Professor Karst, this means that the individual has a right to be treated by . . . society as a respected, responsible, and participating member.333 Or as Edwin Baker put it roughly in the converse, the right not to be unjustly picked on or denigrate[d.]334 These and other arguments for substantive components of equality, together with the fundamental notion of national citizenship and a principle akin to Rawls concept of an equality of right, have increasingly been reflected in Supreme Court justices thinking about substantive rights cases. For example, prior to her nomination to the Court, Justice Ruth Bader Ginsburg suggested greater attention to equality and its interrelationship with autonomy in considering constitutional abortion questions,335 and she pursued this view further during her confirmation hearings.336 Although it deals with a more classic form of sex discrimination, her opinion for the Court striking down Virginia Military Institutes male-only admissions policy emphasized that equal protection grants women full citizenship stature[.]337 Justice Stevens described the right in the abortion cases as a correct understanding of both the concept of liberty and . . . basic equality[.]338 He also pursued the relationship between freedom,
Vacco v. Quill, 521 U.S. 793, 798 (1997). See, e.g., Kenneth L. Karst, The Supreme Court 1976 Term Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1 (1977) [hereinafter Equal Citizenship]; Kenneth L. Karst, Why Equality Matters, 17 GA. L. REV. 245 (1983) (responding rather effectively to Professor Westens articles on the emptiness of equality and demonstrating the prominence and importance of equality as an important operative ideal in American legal culture). 332 See supra notes 318-320 and accompanying text; see also Karst, Equal Citizenship, supra note 331, at 4 (Equality, as an abstraction, may be value-neutral, but the fourteenth amendment is not. The substantive core of the amendment, and of the equal protection clause in particular, is a principle of equal citizenship); KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989). For an excellent earlier argument that more reliance should be placed on the citizenship clause, and on the concept of the rights of citizenship, see CHARLES L. BLACK JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (Louisiana State University Press 1969). 333 Karst, Equal Citizenship, supra note 331, at 4. 334 C. Edwin Baker, Outcome Equality or Equality of Respect: The Substantive Content of Equal Protection, 131 U. PA. L. REV. 933, 965 (1983). 335 See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375 (1985). 336 Nomination of Ruth Bader Ginsburg, to be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. On the Judiciary, 103d Cong., S. Hrg. 103, 205-208 (1993). 337 United States v. Virginia, 518 U.S. 515, 532 (1996). 338 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 912 (1992) (Stevens, J., concurring
330 331

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liberty and equal human dignity in stating his concurring views in the assisted suicide decision, Washington v. Glucksberg: This freedom embraces . . . her interest in dignity, and in determining the character of the memories that will survive long after her death.339 The Courts earlier decisions in Strauder v. West Virginia340 and Loving v. Virginia also support an appropriately strong, mutually reinforcing interrelationship among the constitutional protections of equality, citizenship and substantive fundamental rights. The Supreme Courts resolution of the issues in these cases relied on equality in its comparative anti-discrimination form in combination with an independent substantive fundamental right. In Strauder, the Court described and relied on the citizens substantive fundamental right (and duty) to jury service, at least as much as the claims of the defendant and prospective jurors not to have African-Americans systematically excluded from juries.341 Loving relied on a fundamental individual right of choice to marry on an equal footing with others, as well as invidious race discrimination, as bases for holding Virginias anti-miscegenation statute unconstitutional. Chief Justice Warren wrote for the Court that the right of freedom to marry is essential to the orderly pursuit of happiness by free men.342 This resonance with the Declaration finds many earlier echoes in American jurisprudence, including Justice Fields observation in Slaughter-House Cases that a system will only be counted as a free government by Americans where the inalienable right of every citizen to pursue his happiness is unrestrained, except by just, equal, and impartial laws.343 There can be little doubt that equality of

in part and dissenting in part). 339 Washington v. Glucksberg, 521 U.S. 702, 743 (1997) (Stevens, J., concurring in the judgments). 340 100 U.S. 303 (1880) (reversing the conviction of a black defendant who was tried before an all-white jury, selected from a pool of veniremen from which all blacks had been systematically excluded, and holding that citizens have a fundamental right to jury service, and that both prospective jurors and the defendant have equal protection rights not to have blacks excluded from this civic duty). 341 Id. Plessy v. Ferguson, 163 U.S. 537 (1896) (upholding the racial segregation of rail cars required by a Louisiana statute), overruled by Brown v. Bd. of Educ. Of Topeka, 347 U.S. 483 (1954), demonstrates that it was not enough in the late nineteenth century to show discrimination against African-Americans to prevail under the Equal Protection Clause, and that the presence of a substantive fundamental equality right to jury service was necessary to the Strauder holding. 342 Loving v. Virginia, 388 U.S. 1, 12 (1967) (emphasis added). The Court has also recognized a fundamental right to marry beyond the context of equal protection. See Turner v. Safley, 482 U.S. 78 (1987) (affording a substantive fundamental right to marry to an incarcerated prisoner, though acknowledging that some restrictions would be permissible because of the incarceration). 343 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 111 (1872) (Field, J., dissenting). Justice Field cited and quoted, in a footnote to his opinion, Blackstone as authority that this proposition was firmly established in English law and philosophy by the time of our founding as a nation, as the great end of all human society and government[.] Id. at 111 n.40 (quoting 1 SHARSWOODS BLACKSTONE 127 n.8); see also id. at 115.

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right, the pursuit of happiness in its liberal contractarian sense and a strong presumption of liberty and personal autonomy, were among the central animating purposes of our noble Constitutional experiment. In discussing the substantive fundamental rights strand of equal protection analysis in Plyler v. Doe, Justice Brennans majority opinion stated: In determining whether a class-based denial of a particular right is deserving of strict scrutiny under the Equal Protection Clause, we look to the Constitution to see if the right infringed has its source, explicitly or implicitly, therein.344 The same is true, of course, for other meta sources of substantive fundamental rights, including the concepts of Liberty, Pursuit of Happiness, Citizenship and Privileges or Immunities. It is beyond the scope of this Article to work out in detail the precise interpretive contour of Liberty, Equality, or the Pursuit of Happiness, or their exact interconnections. That important work is for other scholars, advocates, the courts, and for another day. Instead, the immediate goal has been more limited, to establish the bona fide nature of these three central precepts of American constitutionalism as legitimate meta principles with vital and mutually reinforcing interdependence. With that task complete, it is appropriate to include them on a robust list of essential meta principles, and turn our attention to the articulation of a comprehensive, enhanced theoretical model for the Court to use in seeking, finding and enforcing rights that are not clearly textual in origin. V. TOWARD A COMPREHENSIVE MODEL: MUCH ADO ABOUT SOMETHING Consider the following situation. The federal or state government takes an action that adversely affects an individual. Assume that political, informal, administrative and legal remedies (short of federal constitutional arguments) are unavailing and that the individual chooses to press forward with a claim to the courts that the government action violates his federal constitutional individual rights. Assume further that the claimed right is substantive in character,345 has not previously been recognized by the courts and is not clearly textually provided for in the federal constitution, as amended. What ought the court do?346
Plyler v. Doe, 457 U.S.202, 218 n.15 (1982) (emphasis added). The same sort of analytical model would apply for claims of previously unrecognized procedural rights, but in general the realm of procedural rights has been less controversial and more fully worked out by the courts. 346 Assume the court has jurisdiction, the appropriate parties are before the court, and there are no other legitimate bases of non-justiciability or for avoidance of the merits of the individuals
344 345

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The first responsibility for the court is, as always, to adopt and evince the proper judicial cast of mind. Many others have thought hard about what this means in general, and it is not my purpose or pretense to recanvass this field or to add much. I do mean to include in judicial cast of mind: careful attention to the facts and circumstances of the claim; a sensitive contextual situation sense; conscientious application of the best craft available; and humble institutional self awareness, yet coupled with an open-minded and responsive approach to the task of determining whether the putative substantive fundamental claim of right is legitimate, and if it is, how it should be enforced. The costs and risks of an erroneous decision in each direction should be fairly assessed; in my judgment this will often result in the court reducing or eliminating the high degree of deference usually afforded government action in other types of challenges. It will be appropriate in the right circumstances for the court to start with a presumption of liberty or pursuit of happiness,347 thereby leading to a rebuttable presumption that the governments particular action adverse to the individual in the instant case is unconstitutional. Next, and while maintaining this judicial cast of mind throughout, the court should search through the concrete textual rights provisions of the Constitution and determine whether the putative claimed right is protected by one of these specific rights, or by its comfortably implied or penumbral rights.348 That is, the court should conscientiously apply the Basic Core/Penumbra Model349 to each of the relevant specific textual rights clauses. Similarly, the court should apply the Sum of the

claim.
347 Others have called for a somewhat similar presumption on a variety of grounds. See, e.g., BLACK, supra note 169; RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (Princeton U. Press 2004); Rebecca L. Brown, Accountability, Liberty, and the Constitution, 98 COLUM. L. REV. 531 (1998). 348 To avoid unduly complicating matters, I am ignoring here the difference between claimed rights against federal and state government action, and the federalism implications attendant thereto. Similarly, I am also ignoring the difference between the conduct of a federal court and a state court in carrying out these functions. The first task and main thrust of this article is to propose a theoretical model for testing proposed rights to see if they are protected by the federal constitution. The questions of whether they are better found by state or federal courts in some instances, or whether they are equally enforceable against state and federal government action, are important issues of federalism that come second, and are largely deferred to future work. In situations where state courts protect an individual right as a matter of state constitutional or statutory law, rather than federal law, no federal question is presented based on the doctrine of independent and adequate state grounds. This salutary aspect of federalism relieves both federal and state courts of the duty to use these models to discover rights in the federal constitution at all in those cases. See Stephen Kanter, Our Democracys Balancing Act: American Federalism Reexamined, 8 OR. HUMAN. 2, 8 (1995) (If the objective of federalism is to be achieved, states must be willing to commit themselves at least on occasion to experiment with . . . increased sensitivity to human rights compared with the minimum requirements of the United States Constitution and applicable federal law.). 349 See supra Diagram 1.

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Parts Model,350 to see if the claimed right (although previously unrecognized) is actually just a composite of rights or parts of rights already protected by several express core rights and their penumbras. These steps are analytically relatively linear, and not too far from the Counting Vee Model of Justice Stewart. But, of course, the courts must approach these tasks with an acute awareness of the requirement for a generous, careful and nuanced consideration of the complexity of constitutional interpretation, evident in the Supreme Courts jurisprudence for any one of the clauses of the Bill of Rights. Among many other valid sources that will need to be considered are AngloAmerican experiences, original history from the framing periods, direct and inferential, the specific types of examples against which the framers crafted each textual rights protection, and the functional purposes underlying each provision. As suggested earlier, the courts should use a mindful, purposeful and liberal style, broad enough to account for changing facts and circumstances and to fully animate the framers intended transcendental values and purposes. If this process is unavailing or leaves the court in doubt about whether to recognize the individuals claimed right, the court should move along, but not discard the work already done.351 The next critical step for the court is to acknowledge that there are important structural, textual and constitutional theoretical triggers justifying, indeed demanding, that the court go farther in pursuit of rights deserving of judicial protection. Prominent among these triggers authorizing recognition of additional substantive fundamental rights are the following sources: (1) the Ninth Amendment as properly construed in accord with the Sign Post Interpretation Model;352 (2) a theory of implied rights at least as powerful as Chief Justice Marshalls compelling analogous argument in McCulloch for implied federal powers; (3) the consensus moral philosophical position on rights of the founders as expressed in the Declaration of Independence and the Preamble to the Constitution; (4) the Supremacy Clause and the explicit responsibility in Article VI for state judges to prefer federal constitutional rights to anything in their own state constitution or laws that is incompatible;353 and (5) the reworking and strengthening of
See supra Diagram 2. The application of the Basic Core/Penumbra and Sum of the Parts Models to the specific textual rights provisions of the Constitution in the context of the unique facts and circumstances of the case at hand, compared with the nature of the claimed right, generates the essential constitutional substrate of specific rights for the more controversial work of the court ahead. To return momentarily to the fruit metaphor from Part I.B supra, the substrate should include specific listed examples of fruits and analogous unlisted hybrid fruits (e.g., a tangelo) similar to listed examples. 352 See supra Diagram 6. 353 U.S. CONST. art. VI. This provision clearly suggests a strong counter-majoritarian federal constitutional rights enforcing role for the state judges.
350 351

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federal constitutional rights protections by the Civil War, and the following subsequent Amendments to the Constitution expanding rights and the class of persons to whom those rights apply: Amendments XIII, XIV, XV, XVII, XIX, XXIII, XXIV, and XXVI. The question is not whether to go beyond the confines of the Counting Vee Model and look farther, but where to look and how. The next phase in the courts work is to utilize the relatively concrete constitutional substrate already developed, account for additional legitimate sources and methods of interpretation, and inductively move up to a group of relevant meta principles (based on the general transcendental values explicit and implicit in the substrate). This inquiry essentially reflects and conforms to the third-order models in Part I of this Article,354 which in their most workable form are best represented by the Meta Up and Down Model.355 Step 1 of this Meta Up and Down Model, already explicated in Part I.B, illustrates how the court should proceed. As foreshadowed there, before proceeding to Step 2, the model now needs to be enhanced to accommodate the additional sources and methods just alluded to, and most importantly to take account of the meta principles expressly included in the Constitutions text and its amendments. These include inter alia Citizenship, Equal Protection, Privileges and Immunities and Liberty in both its general senses, and in its limited penumbral Substantive Due Process sense, as well as other received meta principles that are not technically part of the Constitution such as the Pursuit of Happiness and the extra-Constitutional notions of Equality of Right, and Liberty. Simply listing these induced and directly given meta principles does not begin to outline a fully adequate approach for this analysis. Each principle must be carefully worked through so that the court is fully cognizant of a well-formed, relevant and legitimate notion of the sources and contours for that principle. Still, the court must be careful not to allow itself to be stymied by the lack of formal or mechanistic completeness or provability of any one notion of a meta principle. Once the concrete substrate of rights and the meta principles (both given and induced)356 are in place, and the particular factual circumstances of the case and the precise nature of the claimed substantive right are fully understood, the court will be prepared for Step 2 of the Up and Down Model. This step requires the court to perform the delicate task of applying the substrate and the meta principles to the facts and circumstances of the case in order to determine whether the concrete putative substantive fundamental right
See supra Diagrams 3, 4 and 5. See supra Diagram 5. The given meta principles and their legitimate notions are valuable sources in addition to, and together with, the substrate of concrete rights in inducing other meta principles.
354 355 356

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exists in a judicially enforceable form, or whether it does not. The ultimate decision most often will not be a deterministic process and the answer may evince reasonable doubt in the especially hard, contentious cases that sometimes occupy the Supreme Court. To gain legitimacy, and conserve valuable judicial capital, and to reduce the risk of large, damaging errors in either direction, the court will be well advised to apply the enhanced Meta Up and Down Model repeatedly, and certainly more than once, from several different perspectives. This will require a strong dynamic feedback mechanism, with the court pausing to check often among text, theoretical constructs, historical experience and concrete reality. In effect, the court will be seeking something akin to constitutional equilibrium, coherence and stability for any relatively freshly minted substantive fundamental right.357 These processes will lead, in any close or hard case, to a number of directional arrows pointing in somewhat different directions. When all or most of the arrows are pointing directly toward recognition and judicial enforcement of the claimed right, the court will be on sound footing in recognizing the right. When many or most of the arrows, or sources, are pointing away from the right, or in indiscernible chaotic directions, the court should be most leery in giving judicial voice to the claim of right. Thinking about this process lends itself to one final useful pictorial metaphor. This metaphor results in a diagram where the substrate of concrete textual rights with their penumbras, and the array of relevant meta principles, form the bottom and top of a broken donut as a torus-shaped force field. The proposed right should be recognized and enforced by the court if enough of the forces, and their vectors, are pointing inward holding the right stable, but the proposed claim of right should be rejected if the force fields are too weak, or directionally incompatible, thereby creating a risk of flying apart and ejecting the failed claim. This composite theoretical model, which it has been the
357 With respect to coherence, see Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should be Overruled, 59 U. CHI. L. REV. 381, 390-91 (1992): Legal interpretation is inherently holistic, even when the apparent target of interpretation is a single sentence or even a single clause rather than a document. Any interpreter must accept interpretive constraintsassumptions about what makes one interpretation better than anotherand any plausible set of constraints includes a requirement of coherence. Id. With respect to stability, consider Stephen Kanter, Dealing with Death, supra note 223, at 9 n.34: The term stability is used here as a measure of several concepts: (1) the likelihood that the court will apply the logical consequences of its articulated decisional principles to future cases (that is, the likelihood it will apply them as neutral principles, see Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959)); (2) the likelihood that these principles would survive one or more changes in the present makeup of the court; and (3) the likelihood that these principles will survive over time (that is, the unlikelihood that they will be affected by changing facts and circumstances). Id.

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primary goal of the Article to construct, will be referred to as an Enhanced Dynamic Feedback Meta Up and Down Model.358

358

See Diagram 10.

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The theoretical dynamic feedback model developed in this Article provides a plausible base structure for a legitimate judicial effort to derive and enforce individual rights. When a right is being recognized for the first time under the model, the court has additional difficult challenges after affirming that the right in fact exists. These include refining the content and contour of the right. Particularly at this stage of the process, common law method is ideally suited for the task. Once the right is justified and described with sufficient specificity, the court must still apply the concrete right to the facts and circumstances of the instant case. In doing so, the court should consider reasonable hypothetical situations that are likely to arise. Subsequently, the court will be called upon to apply the right to additional real cases. The court must consider the hierarchical strength of the right: is the right absolute, is it fundamental requiring strict judicial scrutiny of competing governmental action, or is it entitled to some form of lesser protection? Finally, and depending on the strength of the right, the court must give due consideration to any governmental justifications for overcoming or limiting the right. These tasks, though difficult, are primarily matters of application. They are normal grist for the judicial mill. Judges are well equipped institutionally and by training to handle them with experience and wisdom. There is good reason to hope that the proposed model and its discussion will make significant contributions toward a generally valid theory of constitutionally enforceable rights. It is now important that this and any other plausible models be debated openly and fiercely, so that they can be refined and improved to the point that one model, or a cluster of similar models, gains at least rough consensual approval for a meaningful, though not permanent, span of time. The timeliness and urgency of this task is more apparent than ever with the recent addition of two new Supreme Court justices, Chief Justice John Roberts and Associate Justice Samuel Alito, replacing Chief Justice Rehnquist and Justice OConnor. This change in the membership of the Supreme Court for the first time in eleven terms presents an opportunity for renewing and improving the analytical treatment of this vital topic both on and off the Court. Once this debate has occurred and partial consensus achieved, it will still be true that the models are not complete. Like the armature for a sculpture, suitable theoretical models are essential, but not sufficient, to determine the final form and character of the Courts work. The sculpture is built up by the sculptor on the armature with materials and sculptors tools and methods, depending upon his vision and craft. Similarly, any viable approach to judicially enforceable individual

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rights demands attention to the vexing questions of what are the legitimate sources of law (materials) for use in determining newly recognized constitutional rights, and what are the legitimate methods for interpreting and using these sources? Much more scholarly and judicial attention needs to be devoted to the resolution of these questions, and to the important related concern for better judicial craft, if we are ever to achieve a respectable and reasonably stable approach to constitutionally enforceable individual rights. Careful attention must always be given to proper and improper enforcement mechanisms of rights by the courts, and to institutional considerations including legitimate federalism and other structural realities of our unique American constitutionalism. It is to these questions and daunting further tasks that I call the academy, advocates, the courts and thinking citizens of our constitutional republic. There is much truth to Alex Bickels wise assertion that Supreme Court opinions are the beginning of important conversations with the American people.359 It is time for the temperature of that conversation to be turned down, at least temporarily, by putting aside disagreements over outcome, and engaging in the discussion that the debate of models and the further tasks outlined require. Jefferson was surely wrong in thinking that we would need a new constitution every nineteen years, but he was not far off the mark if we take him to mean that each generation must renew for itself the proper sense of the Constitution, its cherished individual rights protections, and the Courts proper role in preserving and advancing the Constitutions fundamental principles and values through development of a legitimate and workable rights model.

359

ALEXANDER BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS (1970).