The Pernicious Notion of “Unenumerated Rights”

“Recognizing” phony constitutional rights is simply a power grab by progressive judges

This essay appeared in American Greatness on March 12, 2019 (here). Thank you, Real Clear Policy (here)! And thanks also to The Originalism Blog (here).

The recent 60 Minutes segment on Juliana v. United States, the lawsuit now pending in an Oregon federal court, in which environmental activists assert a constitutional right to be free from climate change, perfectly illustrated Sen. Josh Hawley’s concern about federal judges who embrace the doctrine of “substantive due process.” Many Americans properly scoff at the idea that there are constitutional rights to things that are not actually set forth in the Constitution, such as the “right to a climate system capable of sustaining human life,” as Judge Ann Aiken, appointed by President Bill Clinton, ruled in Juliana. But once judges free themselves of the constraints of constitutional text, anything is possible: the “right” of a convicted murderer to have a sex-change operation at taxpayer expense, the “right” to same-sex marriage (Obergefell), the “right” to an abortion (Roe v. Wade), and so on, ad infinitum, ad nauseum.

Perhaps some activist judge in California or another rogue state will rule that the Green New Deal is required by the Constitution. This is not mere idle speculation. With the encouragement of a progressive professoriate, the body of judge-made constitutional law now abounds with so-called “unenumerated” (or unwritten) rights, a polite way of describing the process of pretending that the Left’s desired policy outcomes are dictated by the Constitution—and therefore enforceable by federal judges—when in fact they are not. Judicial activism—concocting phony constitutional rights–is a serious threat to representative self-government, yet is rarely discussed even though it occurs in plain view on a daily basis in federal courtrooms across America.

The topic of constitutional law tends to become the exclusive domain of lawyers and academics, because it is perceived to be too technical for the informed layman to understand. Unfortunately, the resulting lack of transparency and public engagement has allowed this vitally-important subject to be hijacked by obscurantists with their own agenda—aggrandizement of the judiciary and implementation of a leftist political agenda. For decades—beginning during the New Deal, but accelerating dramatically under the Warren Court in the 1960s—the Supreme Court has simply invented many “rights” that do not actually appear in the Constitution, in the process granting the federal government sweeping powers that the Founding Fathers never intended.

The federal courts, comprised of unelected, life-tenured judges often drawn from the progressive ranks of Ivy League law schools, have arrogated to themselves control over many political decisions that once were, and properly should remain, the exclusive province of the states. Invoking a few inapt phrases out of context—especially “due process” and “equal protection”—our black-robed masters have constructed an edifice of constitutional law that bears little resemblance to the document written by the Founding Fathers in Philadelphia in 1787. A constitutional system whose authority derives from “we the people” has become instead a swollen behemoth—a Leviathan. The Framers’ vision of a decentralized and self-governing republic has been lost in the fetid swamp of Washington, D.C.

Recall our first principles: The U.S. Constitution is a compact among the states, which existed as separate sovereigns prior to ratification of the Constitution in 1789. The Constitution primarily defines the powers and structure of the federal government, and prior to the adoption of the 14th Amendment in 1868 had little direct application to the states. The first 10 amendments (usually referred to as the Bill of Rights) were added at the insistence of some states, after the Constitution was written, to protect the states from federal overreach; as originally adopted, the Bill of Rights did not apply to the states. Not until the aftermath of the Civil War, during Reconstruction, was the constitutional structure of dual sovereignty altered to allow the federal government to enforce equal civil and political rights to the newly-freed slaves. This—and nothing else—was the mandate of the 13th, 14th, and 15th Amendments.

Instead, the Supreme Court has interpreted the 14th Amendment to “incorporate” the Bill of Rights against the states, and in the process banned prayer from the public schools (and religious expression more broadly from the public square), usurped political functions such as legislative apportionment, micro-managed the states’ criminal justice systems from arrest to execution, and generally anointed itself as a national super-legislature with broad authority to overturn state and local laws with which it disagrees. No sphere of activity is free of judicial meddling: public schools, prisons, social services, welfare benefits, the maintenance of public order (such as regulating homelessness and vagrancy), and even elections! At the time of the Founding, the states were widely believed to possess nearly-plenary “police power” over the health, safety, morals, and general welfare of their residents. Now, in the words of famed Judge Learned Hand, the Supreme Court has become a “bevy of Platonic Guardians.”

There is no constitutional warrant for this role. The Supreme Court should enforce the express provisions and structural elements of the Constitution (such as the separation of powers), but it should not “recognize” purported rights that are not contained in the Constitution. “Unenumerated” rights are bogus—a veritable Pandora’s Box of judicial mischief. If a claimed “right” is not clearly evident in the text of the Constitution, it should be rejected as wishful thinking on the part of the proponent. To resist the powerful urge to recognize their own personal predilections as constitutional rights, Supreme Court justices must lash themselves to the mast of constitution text, in the manner of Odysseus overcoming the lure of the Sirens.

The textual orientation of “originalist” judges typically associated with the conservative legal movement (sometimes referred to as “strict constructionists”) generally predisposes them against judicial activism, but two factors threaten to foil that salutary trend. First, some conservative scholars embrace the notion that “natural law” should play a role in constitutional interpretation, even though “natural law”—like the activists’ imaginary “penumbras, formed by emanations”—is unwritten, intangible, and therefore entirely subjective.  “Natural law” is no more corporeal than ghosts, and about as useful to the enterprise of constitutional interpretation. Second, many libertarian legal scholars—falsely posing as originalists–advocate a broad application of unenumerated rights (which they call “judicial engagement”) and seek to resuscitate the “privileges or immunities” clause of the 14th Amendment, which has been a dead letter since the Supreme Court correctly buried it in the Slaughter-House Cases (1873), almost 150 years ago.

Robert Bork deemed the clause “a mystery since its adoption,” yet some academics, like grave-robbers, are eager to exhume its jurisprudential cadaver. A broad reading of that moribund clause—favored by libertarians–would, in the words of the Slaughter-House majority, transform the Court into a “perpetual censor upon all legislation of the States”—the last thing the nation wants or needs. In the “even Homer nods” department, the normally-exemplary Justice Clarence Thomas—recently joined by rookie Justice Neil Gorsuch—occasionally indulges in this quixotic reverie. This is a dire mistake. Writing for the Heritage Foundation, Michigan Supreme Court Justice Stephen Markman, a renowned conservative legal scholar, emphatically recommended against revisiting the “privileges or immunities” clause, because it would likely become “a wellspring of new judicially determined rights.”  Bork concurred, arguing that reviving the clause would allow judges to “write their own Constitution.” We ignore this wise counsel at our peril.

Accordingly, Sen. Hawley and his colleagues should be extremely skeptical of judicial nominees who support any version of unenumerated rights, including—in addition to substantive due process—natural law, “judicial engagement,” the “privileges or immunities” clause, or any other constitutional theory that relies on “invisible ink” or encrypted messages that only “enlightened” judges can decipher.

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