Constitutional Fictions

Updated 4/10/12


"If God did not exist," said Voltaire, "it would be necessary to invent him." I think substantive due process works in much the same way. Current constitutional law in the area of individual rights is based on a few large fictions, including the doctrine of Incorporation and the doctrine of Substantive Due Process. These fictions exist because if they didn't, they would have to be invented.

A Little Background
The Bill of Rights, by its terms, only constrains the Federal government. The First Amendment starts off, for example, "Congress shall make no law...." In 1791, it was assumed that the greatest threat to individual liberty would be the Federal government; states were close to the people and could therefore be counted on to protect individual liberties.

By the time of the Civil War, we realized that this was not necessarily the case, and one of the many provisions included in the Fourteenth Amendment (ratified during Reconstruction) was a clause that appears—from text and history—to be designed to change the presumption in our Constitution that states could be counted on to protect liberty: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Under this clause, the Privileges or Immunities Clause, states would be prevented from violating the rights of their citizens.

Unfortunately, only five years after ratification of the Fourteenth Amendment, the Supreme Court effectively erased the Privileges or Immunities Clause from the Constitution. In the Slaughter-House Cases, the Court used a controversial reading of the phrase "of citizens of the United States" to hold that the Clause did not protect "civil rights," but only certain privileges that derived from the nature of the federal system, such as the right to travel between states or run for federal office.

However, starting in the 1920s, the Supreme Court realized that the Bill of Rights protections had to somehow apply to the states. The states could not possibly have the power to violate citizens' civil rights, and thus the Incorporation doctrine was born. Today, all but a few select provisions of the Bill of Rights are "incorporated against the states," which means they constrain state governments as well as the federal government.

The question was how. How does the Bill of Rights apply to the states? According to the Supreme Court, it's because of the Due Process Clause.

The Due Process Clause
The Fouteenth Amendment's Due Process Clause (DPC) reads: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law." This is virtually identical—and intentionally so—to the Fifth Amendment's DPC, which reads: "No person shall...be deprived of life, liberty, or property, without due process of law." The meaning of the Fifth Amendment's DPC was obvious. It was tucked into the Bill of Rights along with criminal procedural protections against double-jeopardy and self-incrimination. It means exactly what it looks like it means: The United States is a place where the federal government cannot  (at least until George W. Bush was president) pick you up off the street, lock you away, and take your home without letting you make your case before an impartial judge. And with the Fourteenth Amendment, neither can the states.

But in the 20th Century, the DPC has taken on a whole new meaning. "Due process" no longer simply means due process, "due process" now means something along the lines of, "not pursuant to an enacted law that would violate certain fundamental rights." In other words, a state must not only provide its citizens with all the procedural protections of a fair system of justice, but it cannot apply that system of justice against certain activities that are substantively protected. If a state arrests you for burning an American Flag, it does not matter if the state provides you with a perfectly fair trial; it simply cannot try you at all for that crime.

Fundamental Rights

Here's where things get a bit complicated. According to the Supreme Court, the Bill of Rights does not actually apply to the states in its entirety. For example—and these are the most prominent two examples—people have no right to a grand jury indictment in state felony proceedings (as they do in federal felony proceedings under the 5th Amendment) and no right to a jury in state civil cases (as they do in federal civil cases under 7th Amendment). Until 2010, the 2nd Amendment didn't place any restrictions on the states. This is because the Incorporation doctrine does not incorporate all rights; it only incorporates fundamental rights. (Indeed, whether or not the Incorporation doctrine incorporated all rights or just fundamental rights was the subject of a 20+ year feud between Justices Black and Frankfurter. Frankfurter won, but I agree with Black.)

What's a fundamental right? The problem is that nobody knows. The Court has made it clear that the listing of a particular right in Bill of Rights not sufficient to deem it a fundamental right. But, if the Framers were careful enough to list something in the Bill of Rights, chances are it is important enough to be considered "fundamental." But not always.

And, as if to complicate things more, the Court has also made it clear that being listed in the Bill of Rights is not necessary for something to be considered a fundamental right either. Here we get into the bizarre and controversial area of "Substantive Due Process." (Yes, you read that right. Professor John Hart Ely once said that saying "Substantive Due Process" was like saying "Green Pastel Redness"—i.e. entirely nonsensical.)

People have "unenumerated" fundamental rights. For example, you have the right to educate your child in a private school, the right to use contraception, the right to obtain an abortion, and the right to refuse medical treatment. In modern times, most such rights involve aspects of family life or bodily autonomy. However, it was not always so. In the late 19th and early 20th centuries, the Supreme Court recognized a "liberty of contract" that prevented states from setting minimum wages or imposing maximum work-week length laws—an idea which has long since been overturned. Such unenumerated rights have been a source of controversy as long as they have been recognized.

This is the state of civil rights jurisprudence in the United States. A provision of the Constitution originally intended to forbid unjust detention or seizure of property now also forbids enforcement of laws that violate a set of a substantive rights that is neither a subset nor a superset of the Bill of Rights. This is fine (albeit confusing), and so far it works, but it's a complete and utter fiction. And moreover, everybody knows it.

The Non-Fiction Constitution?

What makes this fiction so ridiculous is that it is entirely unnecessary.

Let's go back to 1791. The Ninth Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The would appear to be pretty straightforward. The first eight amendments list the specific rights that a newly free people in 1791 would find most important; the ninth was a command not to overlook other rights that may be fundamental to a free people. Indeed, fear that a bill of rights would be taken as exhaustive was one reason that Hamilton and other Federalists initially opposed the idea. However, the Ninth Amendment, much like the Privileges or Immunities Clause, has been virtually read out of the Constitution. However, unlike the Privileges or Immunities Clause, which was actively and abruptly weakened by the Court, the Ninth Amendment has simply died due to its being quietly ignored.

Why should this be so? Constitutional textualists always complain that, for example, "the Constitution says nothing about a right to abortion." Yes, but the Constitution specifically and explicitly says that there are rights that are not written down. Now, this does not mean there is a right to abortion, and it doesn't provide guidelines for deciding whether there's a right to abortion, but at least provides a textual jumping-off point. This is not an absurd position. Indeed, it seems the most natural reading of the Ninth Amendment, and Chief Justice Warren and Justices Goldberg and Brennan seemed to think so as well.

And, if there are certain unenumerated rights protected by the Ninth Amendment, do they apply to the states, as well as to the federal government? Of course. Why? Because "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." To which other provision would you need to look? We have unenumerated rights for the same reason the rights in the Bill of Rights are incorporated: The Privileges or Immunities Clause protects citizens from civil rights violations by the states. I am not the only one who wants to resurrect that clause: Justice Thomas voiced his support for it in the recent McDonald case.

This is the "non-fiction Constitution." We, as citizens of the United States, have enumerated rights in the Bill of Rights and unenumerated rights by virtue of the Ninth Amendment's command not to "deny or disparage" other rights. These rights are applied against the states, which cannot abridge any immunities of United States citizens.

In practice, this is effectively what we have done for a century. First-year law students learn every year that the Constitution protects certain civil rights through a nonsensical doctrine called substantive due process, and few people bother to question this doctrine.

But I have a different take on things: Perhaps constitutional scholars and judges and lawyers have all really just accepted the fact that we have unenumerated rights in virtue of the Ninth Amendment's command and that these rights, along with the enumerated ones, are applied against the states through the Privileges or Immunities clause. Perhaps we just pretend to believe the "due process" fiction because it's easier than overruling precedent that has read the Ninth Amendment and the Privileges or Immunities Clause out of the Constitution. Perhaps we have just accepted the fact that we are living in a constitutional fiction, in which we have gotten the right outcome, but for the wrong reasons.