It's been an eventful week in America. Breathless op-eds proclaim the end of democracy (one of an infinite number of such panics in half a decade), paranoid culture warriors decry creeping theocracy in their daytime delusions, the monsters have risen up from under the bed, from within the dark recesses of their closet, seeping into the trembling pillars of the republic. Never do those who continually cry wolf ever stop to wonder whether their own actions are chipping away at the foundations of this young nation. That would be too much. The unimpeachable conviction that one is right, and that one is on the right side of history, is too alluring to resist. What is democracy in the shadow of megalothymia?
In any event, theocracy has not come to this country and it has not been turned back to the stone age. What the leaked draft of the majority opinion in Dobbs v Jackson has done is simply remove from the Supreme Court an aggrandized power (think James Madison in Federalist No. 48: "Power is of an encroaching nature") and returned it back to the states. There are tricky issues here, issues of constitutional interpretation, of the nature of federalism and the balance between national and state power. But the one thing that should be made clear is that to strip abortion of its status as a protected constitutional right is not the same as to outlaw it. The political battle over abortion does not end here, it has merely entered a new phase. What has been stemmed here, however, is a particular jurisprudential mode of interpretation. Progressive living constitutionalism, birthed in the early 20th century by reformists like Louis Brandeis and Woodrow Wilson, has run up against the limits of its reach after a half-century of stunning success. It was a broad attempt to re-engineer social mores from the top-down. But what was it? And what stopped it?
It would not be unfair to look at Griswold v Connecticut as the beginning of this long march. In it, the Supreme Court, headed at that time by Earl Warren, determined that the due process clause of the Fourteenth Amendment, which reads that no one shall be deprived of life, liberty or property without "due process of law", in fact confers a substantive right to privacy. Although the word "privacy" fails to appear in the Constitution, it was suggested by the majority opinion that unenumerated rights exist as "penumbras and emanations" of enumerated rights. This reading was used to declare a Connecticut state law barring access to contraceptives unconstitutional. Through this derivation, the right to privacy was used to extend constitutional protections to sodomy, gay marriage, and eventually abortion.
Penumbras and emanations are clearly conceptually vacuous. They are the tenuous thread upon which endlessly unenumerated rights can be declared and ordained. They, in essence, provide legal carte blanche to whichever enterprising activist judge would like to impose their preferred points-of-view upon public life. This is the reasoning that Justice Alito uses to overturn Roe and Casey in Dobbs. The threat that such reasoning will be used to license further excesses which have no basis in the legal tradition or national history makes such a reading of the Fourteenth Amendment intolerable and unacceptable. And so it is.
The fury over abortion is bad enough, but this strikes at deeper issues about the nature and extent of federalism. Justice Goldberg, one of the judges presiding over Griswold, invoked not only the fourteenth amendment but the ninth in his supportive opinion. The ninth amendment is notorious in asserting that enumeration of particular rights shall not be construed as limiting others that might be retained by the people. He approvingly quotes Alexander Hamilton on Federalist No. 84, who writes:
I go further and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted, and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.
Now, I might be blind. It's very possible that my rational faculties have dimmed. But it appears to me that this excerpt has nothing at all to do with the issue in question. The purpose of Federalist 84 was to argue against the inclusion of a Bill of Rights in the Constitution. Hamilton's chief concern is that the enumeration of particular rights, the limitation of the powers of the federal government, implies a transfer of powers from national government to the people. His fear was that a national government so inclined might one day in the future use this fact as a pretext to seize back rights that it supposes itself, on account of this transfer, to have at one time possessed. Hamilton's solution to this problem is to incorporate in the language of the Constitution itself a stronger recognition of popular sovereignty, for the federal government could not lose what had never been taken away.
This never struck me as a particularly compelling argument and it doesn't appear to have swayed the Constitutional Convention. Furthermore, Hamilton goes on to speak about the freedom of the press. He says:
On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that "the liberty of the press shall be inviolably preserved''? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.
So provisions that provide for the protection of enumerated rights are empty, devoid of content. Where does that leave unenumerated rights? And what does that have to do with the point that Goldberg evidently seems to believe that Hamilton's line of reasoning supports, which is that the ninth amendment provides broad protections to rights not explicitly listed? I don't see it.
I imagine the vast majority of Americans, and certainly the world, are unaware that the Bill of Rights (once the Constitution had been ratified) was thought binding only on the federal government and not the states. Barron v Baltimore ruled that the states were not bound by the Bill of Rights. Furthermore, this ruling was not overturned in any subsequent case. It simply fell out of the collective consciousness. Why? Because in 1868 the American south was in ruins, the Democratic Party in disarray, and no political force was prepared to stop the ratification of the fourteenth amendment.
So began a long process of legal incorporation, by which the bill of rights was applied slowly, selectively, and tempestuously to the states. The ninth amendment, I will point out, has not been explicitly incorporated in any case. So any ruling that bears on state laws ought not to, if we are being honest with ourselves, invoke the ninth amendment in defense of said ruling. But of course this has not happened.
A theory of jurisprudence known as originalism grew up in response to these excesses and came to dominate the conservative legal movement. Put simply, originalism holds that the only proper purpose of constitutional interpretation is to recover the "original public meaning" of the Constitution at the time it was written. Methodologically, this renders originalism a positivist theory of legal interpretation, meaning that it is premised upon the separation of law and morality. Funnily enough, it was the question of antitrust law that heralded the shift of American jurisprudence away from judicial activism and towards a purely textualist reading of the law. Robert Bork, writing in The Antitrust Paradox, managed to shift judicial thinking away from Brandeis's evolutionary approach to "fact-based" interpretation by striking at the premise underlying his judgements on anti-trust law. Instead of making fundamentally political judgements about the proper level of competition in a market, judges must consider only the facts of consumer welfare, market share and price-levels as determinative in their adjudication.
The tech companies Bork was to decry in his later years benefited enormously from this shift away from "political" adjudication. The swing in the opposite direction has proved just as destructive, even as it has come to dominate every aspect of the judicial mainstream. The folly of originalism can be discerned in the dissenting opinion of Justice Black in Griswold v. Connecticut. Black had led the charge in separating the newly conceived neutral domain-notion of rights from an older conception that once stressed toleration within socially prescribed boundaries. To do this, he and like-minded justices had begun to lean more on arguments derived from a supposed “original public meaning” of the Constitution. Yet this attempt to uncover the original meaning of that document and impose it upon the present had led Black, curiously, to endorse the kind of state-action that this tactic had been expected to restrict. When considering the constitutionality of public power intruding upon private life, he had this to say: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision" and critically that, "The court talks about a constitutional right to privacy as though there is some constitutional provision or provisions forbidding any law ever which might be passed to abridge the privacy of individuals. But there is not."
All good so far, right? This is obviously worrying to those who consider "privacy" equivalent to "liberty" and who hold the unmitigated indulgence in both as a sacred cow in American political culture. But otherwise this is a strictly originalist reading of the Constitution. And yet we cannot escape the interpretative paradigm within which the Founders drafted the Constitution, for they were motivated primarily by political judgements. The originalist must fail, as all positivist legal theory must fail, because the Founders themselves were not positivists. They held substantive moral commitments, and they are vastly different from anything most originalists would likely be prepared to accept today. After all, where are the originalists defending blasphemy laws?
The first and second amendments are good examples of ways in which the meaning of our constitutional amendments have been subject to contestation and contingency. Today, the essence of the protection of "free speech" is held to be content and viewpoint-neutrality, meaning that it is held to be unconstitutional for the state to abandon neutrality in respect to substantive views and their content that make up the public square. Furthermore, it cannot impose a preferred viewpoint upon any individual or entity public and/or private. This seems intuitive enough. How else could free speech possibly be understood?
It will come as a shock to learn that these principles were not associated with expressive freedom in 1787. They would in fact have been utterly alien suggestions to all but the most fringe advocates. Freedom of speech in the early republic meant nothing more than a rule against prior restraints and a more bounded protection for well-intentioned communication on matters of public concern embedded within a socially-derived conception of what is actually in the public welfare. All ideas were not afforded equal protections within the commons. Pure "neutrality" was once substituted for something more akin to an embedded notion of "tolerance". Over time, state legislatures would come to adopt ends-means tests to rationally assess whether legislatures passing laws that restrict speech had properly identified a communicative threat to public order, health and/or morality. These latter concerns were the basis for the "police powers" afforded to the individual states, which sanctioned them with broad discretion to regulate private life in the interest of the public good.
The "public good" is notoriously tricky to pin down. The first thought that comes to mind is that these are weasel words designed to surreptitiously smuggle totalitarian tendencies into the American context. But liberty is a broad and contested term, as most of the concepts we're juggling are. The Moldbuggian approach, for instance, misses the point. This line of thought is replete with loaded premises and assumptions that miss the
proper aim of law: to proscribe commands and prohibitions for the sake of a just community. The neo-cameralist state does not take shared interest and right reason, properly understood as the exercise of virtue, to
be the highest good and so of course this proposal is irrelevant to us. We don't even need to leave the rule of law behind to fix what is actually at issue. A regime impervious to the communicative harm of speech acts is a regime disconnected from the public sphere and therefore incapable of exercising any real control for the purposes of any good, private or public.
And so it is with the second amendment, perhaps as politically charged an issue as abortion. The great irony is that the right to bear arms was intended to build a public counterweight against the establishment of a permanent military structure. Public militias, drawn from the people, would more effectively handle the dangers of life on the frontier without the need to find recourse in the corruption and potential tyranny of a standing army. Today we see this concern has been flipped on its head. The military is one of the most revered institutions in the country, the Defense Department is allocated a vastly larger portion of the federal budget than her sister agencies, and an oligopoly of large private firms benefit from lucrative military contracts. The "original" meaning has been lost.
All of this is to say that the issue of abortion rests on more than the moral question, but hopefully you can see where I am going. Legal positivism is deficient even in reading original intention from the text because those intentions are bound up in normative commitments and preferences. Progressive living constitutionalism identifies the proper method but it is not oriented towards the proper ends. I, like my moral opponents (whatever they might say to the contrary), am not totally wedded either to the federalist framework or the constitution. That is an inflammatory declaration, I understand. But it is also of little matter, for I can perceive a way to get closer to my preferred ends through the tools that this framework makes available. We all can. The "majestic generalities" of the constitution make some secularized application of regula fidei possible for both sides. There is enough precedent for everyone to draw from. The winner must lay the narrative groundwork in constructing a legal regime that steps outside of the light of historical time and emerges, as if by magic, from a society of stories.
