Conservatism vs. the Constitution

In a tone more pugnacious than thoughtful, Mathew J. Franck has taken me to task (over in “Bench Memos”) for my op-ed in Friday’s Wall Street Journal (reprinted here at Cato’s site) wherein I criticized the D.C. Circuit’s en banc decision last Tuesday, overturning an earlier panel that had found a constitutional right of terminally ill patients to access potentially life-saving drugs not yet finally approved by the FDA. Expressing sympathy for the terminally ill, Franck urges them to seek relief “in the democratic branches.” He seems to forget that they had already done that, but so entrenched are the “factions” (Madison’s word) in those branches, as Public Choice economists explain, that no relief could be found there. So they turned to the courts, because it is precisely to protect us against such “majoritarian” (read, “special interest”) tyranny that we have a Constitution and a Bill of Rights in the first place — and judges to stand as “an impenetrable bulwark against every assumption of power in the legislative or executive” (Madison again).

The trick, then, is to get the balance between individual liberty and democratic rule right. The Founders and Framers did that with a Declaration of Independence, which set forth their philosophy of government — individual liberty, secured by limited government; a Constitution, which authorized the institutions and powers of the federal government and established the initial relationship between the federal and state governments; a Bill of Rights, which reiterated the libertarian principles of the Declaration, especially through the Ninth and Tenth Amendments, thereby securing ratification by the states; and the Civil War Amendments, which completed the Constitution by incorporating at last the grand principles of the Declaration, providing federal remedies against state violations of our rights.

That is not Franck’s constitutional understanding, however, nor is the understanding of many conservatives such as Robert Bork and Antonin Scalia, both of whom I criticize in my op-ed. They are all small “d” democrats, as evidenced by Franck’s reading of the Constitution’s due-process clauses. For the Framers, he writes, the clauses meant that no one could be deprived of life, liberty, or property “without the deprivation proceeding on the basis of a duly promulgated statute, providing notice, a hearing, and an opportunity in a fair forum to challenge the deprivation (emphasis added). That’s it.” And he goes on to criticize me and other classical liberals for our adherence to “substantive due process,” which “enshrines affirmative limits on the kinds of public policy the government may adopt,” calling that idea “a later excrescence on the Constitution that has been employed to defend property in slaves, exploitation of labor, and most notably in our own time, a ‘right’ to abortion.”

Franck is wrong on both history and theory. As the late Bernard Siegan and many others have shown, due-process clauses have been substantive at least since Magna Carta. Were they not, they would be effectively vacuous, exposing one and all to the unbridled will of the king, the aristocracy, the democratic majority, or, as a practical matter, the interests in control on any given subject — here, the cluster of FDA interests who opposed this suit.

In fact, Franck himself gives the game away when he criticizes my citation of Judge Judith Rogers’s dissent, which defended the Supreme Court’s recognition, under the due-process clauses, of the right to marry, to have children, and to control the education and upbringing of children, among others, calling them “bad ideas!” He would respond, perhaps, that no democratic legislature would deny the right to marry, or to control the education of one’s children. No? What were Loving v. Virginia and Pierce v. Society of Sisters about? Or he might say, with Justice Oliver Wendell Holmes, that if society wanted to go to hell in a handbasket, so be it: save for the rights expressly mentioned in the document, the Constitution is otherwise empty — a mere formal distribution of powers authorizing majorities to do as they wish, as Bork believes.

The founding generation would have been surprised by that reading. Before they would ratify the document, after all, they insisted that a Bill of Rights be added. And because not every right could be expressly included in such a bill, to avoid the implication that only the enumerated rights were to be protected they insisted on the Ninth Amendment, which made clear that we have both enumerated and unenumerated rights. Yet Franck dismisses that inconvenient history with a wave of the hand, saying that the Founders contemplated no judicial enforcement of unenumerated rights. (At least he didn’t say, as some conservatives do, that they contemplated no judicial enforcement of any rights.) But implying, wrongly, that my argument rested on the Ninth, he adds that Judge Rogers, “in her one wise choice, at least avoids the embarrassment of relying on the Ninth in her argument.” She does, and so do I, because there is text enough to support her conclusion.

But “embarrassment”? (As in “the embarrassing Second Amendment”?) The Ninth Amendment, like the Fourteenth Amendment’s privileges-or-immunities clause, is there for a reason. It is not mere surplussage. Those conservative “originalists” who purport to take the Constitution seriously need to understand what those reasons are. But to do that, they need to go behind the text, to the theory of the Constitution and the logic of rights. Judge Rogers, joined by Chief Judge Douglas Ginsburg, did that quite nicely. For Franck, however, she and I, rather than describe the right at issue precisely, prefer instead “to talk in sonorous vagaries about the ‘fundamental’ right to life,” followed by “excursions into the common-law right of self-defense, or ‘the tort of intentional interference with rescue,’” which Franck calls “extended non sequiturs.”

What’s missing here is an excursion into Logic 101. Even a Justice Scalia derives the right to burn the flag, say, from the right of free speech. A move from the general to the particular, with due concern for context, is hardly novel. It’s the stuff of adjudication. Yet Franck would avoid that deduction with a mere assertion: the FDA’s regulatory regime “takes no one’s life,” he says, and the due-process clause “has only to do with those occasions when the government takes affirmative steps to end the life of a particular individual,” not when it blocks people from getting the drugs that might save their lives. His argument is worse than ahistorical: it is circular, and sophistic.

Will judges, armed with the power to stand as “an impenetrable bulwark against every assumption of power in the legislative or executive,” abuse that power — Franck’s main concern? Of course they will. But so will unbridled legislatures abuse their powers. Franck writes as though I support the right to abortion, seeming to forget my “Alito and Abortion” in the Wall Street Journal, which at the time he called “somewhat strange and unsatisfying.” What will satisfy Franck, it seems, is a supine judiciary. Far too often, that’s what we have today. It is not Madison’s vision. It is Franklin Roosevelt’s. Count me a Madisonian.

Roger Pilon is the founder and director of Cato’s Center for Constitutional Studies.