Protecting Unalienable Rights

A leaked Supreme Court draft opinion denying the constitutional legitimacy of the Court’s 1973 Roe v. Wade opinion has piqued interest concerning “unalienable” individual rights: (i) whether such rights logically exist; (ii) if so, then how are they to be reified; and (iii) which branch and level of government is constitutionally authorized and best equipped to defend them. 

Thomas Jefferson’s Declaration of Independence (1776) promised individuals a prospective right to enjoy all the worldly fruits “to which the Laws of Nature and Nature’s God entitle them”: 

We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness. That to secure these Rights, Governments are instituted among Men, deriving their just powers from the Consent of the Governed.

Unalienable rights are unique. They ostensibly lie beyond the “consent of the governed,” honor St. Paul’s rhetorical dictum, “For why should my liberty be determined by another man’s scruples (1 Cor 10:29)?” and are untouchable by votes and elections, legislatures and courts. And yet a simple, and often an indifferent majority of the governed (e.g., busybodies) nevertheless possesses the arbitrary power to enact laws that violate rights that a harmed minority believes to be unalienable. 

The 1787 Constitutional Convention debated the optimal balance for controlling the tension created by the Declaration’s intertwined promises. Pennsylvania’s delegate Gouverneur Morris stressed the need for employing the “abilities and virtue” of an “aristocratic” legislative branch to check the excesses of the “democratic” plebeian branch. No comparable checks upon the Executive and Judicial branches were advised. The resulting Constitution presumed that voters’ private ambitions, interests, and perspectives would ensure that unalienable rights would flourish spontaneously.

The judiciary’s emergent role in protecting unalienable rights flowed from Chief Justice John Marshall’s opinion in Marbury v. Madison (1803), which established the principle of judicial review. Marshall’s extra-constitutional arrogation has been characterized as a power-grab. However, the legal scholar and jurist Richard Posner asserts, in Law, Pragmatism, and Democracy (2003), that Marshall “created judicial review as a pragmatic response to the inevitable crisis over the role of the judiciary in the constitutional scheme. Judicial review is conducive to creating a national republic, and that is what Marshall sought (p. 91).”

When the process of elections and legislative debate fails to protect unalienable rights against takings, then the “abilities and virtue” of a virtuous, moral, and “aristocratic” Supreme Court—which, in addition to the power of judicial review, also enjoys the political independence inherent in lifetime tenure, and the force moral suasion—arguably must shoulder, rather than shirk, this burden as the constitutional branch of last resort. Otherwise, the government’s protective duty would go unfulfilled. 

This line of thinking once was advanced by the legal scholar (and later Judge) Robert Bork. in a December 1968 Fortune magazine article titled “The Supreme Court Needs A New Philosophy,” argued:

A desire for some legitimate form of judicial activism is inherent in a tradition that runs strong and deep in our culture, a tradition that can be called “Madisonian.” We continue to believe there are some things no majority should be allowed to do to us, no matter how democratically it may decide to do them. A Madisonian system assumes that in wide areas of life a legislative majority is entitled to rule for no better reason than that it is a majority. But it also assumes that there are some aspects of life a majority should not control, that coercion in such matters is tyranny, a violation of the individual’s natural rights. Clearly, the definition of natural rights cannot be left to either the majority or minority. In the popular understanding upon which the power of the Supreme Court rests, it is precisely the function of the Court to resolve this dilemma by giving content to the concept of natural rights in case by case interpretations of the Constitution (p. 170, italics added). 

This conception of the Court’s default responsibility closely resembles the approach taken by the Roe Court. 

Bork’s own Supreme Court nomination might have succeeded if he had held to this view. Instead, he apostatized three years later in the widely read journal article, “Neutral Principles and Some First Amendment Problems,” Indiana Law Review 47:1 (Fall 1973), 1–35. In it, Bork first restated his earlier position regarding the “Madisonian” constitutional system. He then proceeded to explain at length why “the choice of ‘fundamental values’ by the Court cannot be justified,” and he apologized for his earlier claim that “new basic rights could be derived logically by finding and extrapolating a more general principle of individual autonomy underlying the particular guarantees of the Bill of Rights (p. 8).” His revised view held that “no argument that is both coherent and respectable can be made supporting a Supreme Court that ‘chooses fundamental values’ because a Court that makes rather than implements value choices cannot be squared with the presuppositions of a democratic society. … Why should the Court, a committee of nine lawyers, be the sole agent of change (p. 6)?”

Bork added in a later book, Coercing Virtue: The Worldwide Rule of Judges (2003), that “[i]f we want additional liberties, that may be accomplished by constitutional amendment or by statute. Nothing in the Constitution prevents today’s citizens from enacting statutes that specify additional liberties [or nullify existing ones]. Most of our guaranteed freedoms are statutory rather than constitutional (p. 80).” Any other course of judicial action, by Bork’s lights, constitutes legislating unconstitutionally from the bench, thereby making the Court the ultimate judge of its own sensibilities.

Bork’s revised view reflects the judicial philosophy of “legal positivism.” In Principles for a Free Society: Reconciling Individual Liberty with the Common Good (1998), the legal scholar Richard Epstein explains,

positivist program stands in sharp opposition to the deontological and consequentialist theories of legal justification. …The positivist’s task is not the natural lawyer’s enterprise of finding out which legal rules are conformable to human nature or which, by utilitarian reckoning, advance the welfare of the population at large. Rather, the positivist program deliberately confines its attention to whether a particular pronouncement constitutes a link in the chain of legal commands. The natural law theories insist that valid laws must satisfy certain minimum moral standards; positivist theories reject any such requirement. For that reason, positivism has often been styled as a “pure” theory of law because it wishes to purge jurisprudence of kindred but extraneous moral, social, religious, and cultural norms, none of which need be backed by sovereign force (pp. 41–42).

Legal positivism presently is the dominant ideology of conservative jurisprudence. It is manifested in recent Supreme Court decisions and draft opinions, notwithstanding the substantiated claim by the legal scholar Akhil Reed Amar, in America’s Unwritten Constitution: The Precedents and Principles we Live By (2012), that “[w]ithout an unwritten Constitution of some sort, we would not even be able to properly identify the official written Constitution (p. x).” Posner (2003) argues that the test of a great legal opinion is not its conformity to the tenets of legal formalism. It is how good a fit it makes with its social context” (p. 93). Legal positivism, by comparison, can lead the Court to issue opinions that, in Justice Holmes’ pungent phrase, might otherwise make justices “want to puke.”

The positivist approach to judicial reasoning threatens decades of established court precedents upon which the Nation’s evolved legal, political, and social culture presently rests. Bork’s “Neutral Principles” article identifies several “deontological and consequentialist” precedents that potentially are ripe for a reversal, including those establishing the foundational right of privacy.

Bork’s journal article establishes that the Court is not ideally suited to the task of protecting unalienable individual rights. However, Congress and the States are seriously flawed defenders of these rights as well. On balance, the Supreme Court can be the least bad alternative for reifying and defending unalienable rights, especially in cases where all other constitutional alternatives have failed.

Unless and until the Court relaxes its determination to decide messy cases via elegant doctrinal purity, legal protection for present and future rights will be diminished. That result would hasten a trend in law that Posner, in The Problematics of Moral and Legal Theory (1999), dubs the “supersession thesis”:

The thesis is that what we understand as law is merely a transitional phase in the evolution of social control. [Justice Oliver Wendell] Holmes hinted at this in his essay “The Path of the Law.” He implied that law as he knew it, and as we largely know it still, is merely a stage in human history. It followed revenge historically and will someday be succeeded by forms of social control that perform the essential functions of law but are not law in a recognizable sense, although they are latent in law, just as law was latent in revenge (pp. 206–207). 

This trend is detrimental to unalienable rights and liberties, and ironically fosters ends that conservative legal scholars nominally seek to prevent through faithful adherence to legal positivism.

James A. Montanye is a retired consulting economist in Falls Church, VA.
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