Byron York’s recent article, “Schumer’s Attack,” points to the dilemma Republican judicial nominees are facing in the ongoing confirmation battle in the Senate. On one hand they want to assure the Senate that they’ll apply the law, not make it — which is fine. But on the other hand, they’re reluctant to say much about that law, for fear they’ll compromise their independence and, ultimately, the rule of law. That’s fine too — except that it won’t wash with Democrats on the Senate Judiciary Committee bent on discovering the nominees’ ideas about the law and whether those ideas satisfy an ideological litmus test.
The dilemma was brought out plainly in Sen. Charles Schumer’s letter last Friday to Judge D. Brooks Smith, up for a seat on the Third Circuit, which York cites. For the third time, Schumer pressed Smith to answer not simply whether he believes the Supreme Court was right in Griswold v. Connecticut (the 1965 case that overturned a state statute prohibiting the sale of contraceptives to married couples), but also why the decision was right or wrong. Smith’s previous answers had failed to satisfy Schumer because they merely restated the law that flowed from Griswold, while giving no indication of how Smith might have derived the right of privacy — the right at issue in the case — much less apply it to other cases. As Schumer put it: “I am interested in how you personally read and interpret the Constitution.”
Fair inquiry? Hard to say, and there, again, is the dilemma. Taken to the limit, Schumer’s grilling would seem to require nominees to say how they would decide cases likely to come before them, which indeed would compromise judicial independence and the rule of law. But with a lifetime appointment to the bench before us, aren’t we entitled to know something about how a nominee reads and interprets the Constitution? Republicans too often have proceeded as if the answer, “I’ll apply the law,” were sufficient to put all concerns to rest — the implication being that the law is clear. Well, the law quite often is not clear — it flows only from judicial interpretation — so that answer won’t do. When pressed, as they are now, Republican nominees look like they’re ducking the issue. That’s how Smith looks: I have no quarrel with Griswold, he says, and I would never hesitate to follow it, for “I have always believed there is a right to privacy in the Constitution.”
That still doesn’t tell us why Smith believes as he does. It doesn’t tell us Smith’s theory of the Constitution. And York’s analysis of the problem doesn’t help either. “Schumer’s letter is disturbing to Republicans,” York writes, “because it seems to move the examination of judicial nominees into new territory. Under what may become a new test for judicial nominees, it is no longer enough for a candidate to swear that he will follow the law; he instead has to say he believes that certain laws — Griswold, Roe, and a few others — are good and well‐reasoned laws. ‘Schumer wants to get Smith to say that he personally feels the Griswold decision is the right decision,’ says one key GOP aide. Trouble is, any good jurist would have difficulty making that statement. A good jurist would argue that stare decisis [the authority of established legal precedent] applies. But it’s another thing to ask whether a judge would have come up with the same decision under the same circumstances.”
Let’s unpack that analysis. To begin, Griswold and Roe v. Wade are not “laws.” They’re Supreme Court decisions holding that the state statutes at issue were unconstitutional because their enforcement violated constitutional rights: married couples have rights of privacy, which entail the right to buy contraceptives; the same right of privacy, the Roe Court told us, entails a right to an abortion within the limits set by the Court. Set aside the question of whether those decisions constitute good reasoning; what follows from them is the constitutional “law” — such as it is, and as interpreted by the Court — of contraceptive sales and abortion, respectively, plus implications for related cases that might arise in the future.
What Schumer wants Smith to tell him, then, is not so much whether those decisions are “good” as whether they’re “well‐reasoned.” Again, that’s tantamount to asking Smith why he believes those rights are in the Constitution. For that question, however, the GOP aide’s answer — that “a good jurist would argue that stare decisis applies” — doesn’t begin to respond. In fact, not only does it beg the question, but in constitutional law it’s all but an axiom that stare decisis is at its weakest. Otherwise, Plessy v. Ferguson’s “separate but equal” might still be law.
But the GOP aide’s answer points to still deeper problems. Schumer’s letter asks Smith to illustrate his reasoning by treating Griswold as a case of first impression. That would mean that stare decisis has no place — unless the aide means to imply that, because the Constitution is arguably silent on the right of privacy, the Court should defer to the state legislature, that being “the legal precedent” on the matter. To be sure, that’s the view that Justice Antonin Scalia, Judge Robert Bork, and other conservative “originalists” have advanced over the years: Absent a fairly clear right “in” the Constitution, they argue, the presumption is on the side of democratic, not judicial, decision‐making.
In The Tempting of America (1990), Bork cast the issue as the “Madisonian dilemma.” America’s “first principle is self‐government,” he said, “which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” Our second principle, he continued, is “that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule.”
Unfortunately, this gets the Madisonian vision exactly backward. The Founders didn’t throw off a king only to enable a majority to do what no king would ever dare. No, they instituted a plan whereby in “wide areas,” individuals would be entitled to be free simply because they were born so entitled — while in “some” areas, majorities would be entitled to rule not because they were inherently so entitled, but because they were constitutionally authorized to rule. That gets the order right: individual liberty first; and self‐government second, as a means toward securing that liberty.
Fortunately, Smith has not taken the Borkian route, which almost certainly would have brought him the same fate that befell Bork. Instead, he has already said that there is a right to privacy in the Constitution, which limits majoritarian rule. Now he must make sense of that claim. Absent a sound theory of the Constitution, however, that won’t be easy, for Bork & co. are surely correct when they say that no such right can be found “in terms” in the document. How, then, should Smith respond? And can he turn this to his advantage? I believe he can. But it will take some serious thought about the Constitution, not just a refresher course in Con Law 101.
In a nutshell, most rights the Constitution protects are not “in” the document “in terms.” They couldn’t be — there are too many of them, a point that was recognized at the Constitutional Convention. In fact, the clearest evidence that there are such rights comes from recognizing that we lived under the Constitution for two years before the Bill of Rights was added. Does that mean that we had no rights during that time, that majorities could do whatever they pleased, “simply because they were majorities”? Of course not. It was the doctrine of enumerated powers that protected us. The federal government was given only limited powers. But that implies that where there was no power, there were rights, belonging either to the states or to the people. In some areas majorities were entitled to rule. For the rest, we were free, even though those rights were not spelled out explicitly.
When it came time to spell some of them out in a bill of rights, two main objections were raised — first, that such a bill was unnecessary since the enumeration of powers protected us. “Why declare that things shall not be done,” said Hamilton, “which there is no power to do?” Second, a bill of rights would be dangerous, for it would be impossible to enumerate all our rights, yet the enumeration of some would be construed, by ordinary principles of legal construction, as denying the rest. We come, then, to the Ninth Amendment, which was written to address that second objection: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Given that text and that original understanding, one wonders how conservatives who deny that unenumerated rights are “in” the Constitution can call themselves “originalists.”
At bottom, there are two main reasons why conservatives argue as they do — neither of which will fly. First, they contend that the Constitution does not authorize judges to say what those rights are or to enforce them. Second, some say that, even if judges were so authorized, the Constitution would not authorize them to apply those rights against the states. The short answer to the second objection points to the Civil War Amendments, which fundamentally changed the relationship between the federal and state governments by giving individuals federal remedies against state violations of their rights. The short answer to the first objection is that in our system, it falls to judges, not legislators, to recognize and protect constitutional rights.
Interestingly, those issues came together two years ago in the dissent of Justice Scalia in Troxel v. Granville, the grandparent visitation case out of Washington state. In Troxel the Court found an unenumerated right of fit parents to direct the upbringing of their children — a right that trumped the state law at issue, which had authorized state judges to grant visitation rights to grandparents and others. In dissent, Scalia said that although the parental right was among the unalienable rights proclaimed by the Declaration of Independence and the unenumerated rights retained pursuant to the Ninth Amendment, that amendment’s refusal to deny or disparage such rights “is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.” When he goes on to say that “I do not believe that the power which the Constitution confers upon me 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” (original emphasis), Scalia in effect defers, like Bork, to “the commitment to representative democracy set forth in the founding documents.”
The problem with Scalia’s approach should be clear. Not only does he, like Bork, get the Madisonian vision backward, but in deferring to democratic majorities to define and enforce our unenumerated rights, he misunderstands and undermines the very idea of a right. Rights, by definition, are asserted defensively — not when one is in the majority but when one is in the minority, against a majoritarian threat. Scalia claims that fit parents have a right to direct the upbringing of their children. Yet he also says that it’s up to the legislature to make such rights explicit. Well, the Washington legislature did act. But it said that there are not any such rights. So there are such rights, Scalia says, but by his interpretive methodology there aren’t such rights. His approach effectively reduces the Ninth Amendment to a nullity. In fact, taken to its logical conclusion, it puts even enumerated rights at risk — since even they require judicial interpretation. After all, the right to burn the flag (which Scalia has upheld) is nowhere in the Constitution “in terms.” Where then did Scalia find it, when the legislature had spoken otherwise?
What conservatives of the judicial‐restraint school have to come to grips with, then, is the full richness of the Constitution, including its natural‐rights foundations. The Founders did that without embarrassment. And they understood further, with Madison, that the courts were to be an “impenetrable bulwark against every assumption of power in the legislative or executive” branches. To play that role, however, judges have got to understand the underlying theory of rights. They’ve got to be able to show, for example, that Griswold does not imply Roe, that there is all the difference in the world between the two cases.
This is not the place to detail that distinction. It is, however, the place to say that once the Constitution is taken seriously, once judicial nominees are able to show the Schumers of the world that they take both individual liberty and majoritarian tyranny seriously, they’ll be in a good position to turn the tables on those selective libertarians of the left who suddenly lose their love of liberty when contemplating the latest Washington scheme for doing good. In his New York Times article last June, Schumer railed against the Rehnquist Court’s recent decisions “that constrain Congressional power.” Well, if we’re going to take the Constitution seriously, let’s do so. It was written to constrain power so that liberty could flourish. Indeed, the doctrine of enumerated powers, which constrains Congress, was the first — and principal — constraint the Founders put in place. The Bill of Rights, as Scalia has rightly said, was an afterthought. Together, however, they spell limited constitutional government. Perhaps Republican nominees and Democratic senators can join forces to bring that about.