The provisions of the Bill of Rights were not written to protect popular people or to serve the interests of the majority in our democracy. The framers of our Constitution recognized that there would be occasions when the will of the majority would have to be restrained, and that impediments would have to be created to ensure that the will of the majority would, at times, deliberately and intentionally be thwarted. They created the Senate, with its complex procedural rules and the need for cloture votes, to impede and retard the will of the majority. They created the Article III courts knowing that these courts would hand down unpopular decisions. It is true that the US Constitution is primarily a procedural document, but it is also the opinion of many scholars (and of the writer) that the Constitution also incorporates substantive guarantees and protections. It is with particular reference to the Due Process Clauses of the Fifth and Fourteenth Amendments that constitutional scholars are split, with "strict constructionists" at one end of the spectrum and believers in "substantive due process" at the other end.
By their terms, the Due Process Clauses are entirely procedural, and merely guarantee that persons accused of breaking the law must receive fair and impartial hearings. The extremists who believe that "substantive due process" has no place in due process jurisprudence fail to grasp the fact that the law is written for a purpose; that the law is intended to protect concepts that are central to our notion of what it means to be free human beings in a society predicated on the recognition of "ordered liberty." In short, scholars who believe in substantive due process believe not just in the how of the law, but also in the why of the law. It would perhaps be best to characterize the difference between judicial conservatives and judicial liberals by asserting that the latter believe that the Constitution itself protects certain fundamental rights from encroachment by the state or federal governments – that the Constitution implicitly includes “Due Substance” Clauses in parallel with the explicit Due Process Clauses.
It should be noted that the Due Process Clause of the Fifth Amendment is binding on the behaviour of the US government, whereas the Due Process Clause of the Fourteenth Amendment is binding on the behaviour of the states. For the purpose of analysis, claims against the US government implicating the Due Process Clause of the Fifth Amendment are treated almost identically to claims against the states implicating the Due Process Clause of the Fourteenth Amendment. However, over the course of many decades, the US Supreme Court has gone further, and has held that there are some issues involving the exercise of liberty interests that may not be infringed by the state or federal governments, regardless of the fairness of the procedures involved when adjudicating allegations of criminal conduct. In other words, judges and constitutional scholars who believe in the precept of substantive due process maintain that there are some spheres of personal conduct that may not be regulated by the state or federal government at all, absent reasons which may vary in terms of significance, depending on the nature of the liberty interests at stake. These scholars believe that the Due Process Clauses protect substance, and not merely procedure.
The substantive reach of the Due Process Clauses is limited by interpretation of the word “liberty” as that word appears in these Clauses. What is liberty? Freedom from imprisonment clearly lies at the heart of liberty (“Freedom from imprisonment -- from government custody, detention, or other forms of physical restraint -- lies at the heart of the liberty that Clause protects” (Zadvydas v. Davis, 533 U.S. 678 (2001))). However, the Due Process Clause protects people from more than mere freedom from physical restraint (“We have held, of course, that the Due Process Clause protects interests other than the interest in freedom from physical restraint, see Michael H. v. Gerald D., 491 U.S. 110 (Albright v. Oliver, 510 U.S. 266 (1994))). The Court has held that the protections afforded individuals by the Due Process Clause of the Fourteenth Amendment include a parent’s right to send a child to a private school (Pierce v. Society of Sisters, 268 U.S. 510 (1925)), the right to teach a child a foreign language in a parochial school (Meyer v. Nebraska, 262 U.S. 390 (1923)), the right to marry (Zablocki v. Redhail, 434 U.S. 374 (1978)), the right to enter into a multiracial marriage (Loving v. Virginia, 388 U.S. 1 (1967)), the right to procreate (or not to procreate) (Skinner v. Oklahoma, 316 U.S. 535 (1942)), the right to use contraceptives (Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U.S. 438 (1972)), the right to abortion (Roe v. Wade, 410 U.S. 113 (1973)), and most recently, the right of gay men and lesbians to have sex (Lawrence v. Texas, 539 U.S. 558 (2003)). All of these activities are protected by the Due Process Clause of the Fourteenth Amendment – more specifically, by the substantive component of this Clause. Through interpretation of the word “liberty,” the Court has held that all of the above actions involve the engagement of persons in the exercise of their liberty interests, and that all of these actions are protected by this component.
The last of these decisions (Lawrence, supra) ended a 17 year period during which gay Americans could be (and occasionally were) prosecuted and persecuted for having gay sex, even in the privacy of their own homes. Lawrence directly and bluntly overruled an earlier decision (Bowers v. Hardwick, 478 U.S. 186 (1986)) which held that gay Americans could be prosecuted for engaging in same-sex sexual activity, even in the privacy of their own homes. When Bowers was decided, 25 states criminalized gay sex; during the 17 year interval between the handing down of Bowers and its demise with the handing down of Lawrence, gay activists were largely successful in turning to state supreme courts to attack these statutes on independent state constitutional grounds (under our principles of judicial federalism, a state supreme court decision implicating only state constitutional considerations may not be reviewed by the US Supreme Court); by the time Lawrence was handed down, the number of states with such criminal penalties on their books had dropped from 25 states to 14 states. It should be remembered that punishment for violating these statutes varied from a light fine to up to 20 years in prison, depending on the state in which gay people had sex.
(Federal judges are still grappling with the reach of Lawrence. The US Supreme Court, in Lawrence, never actually stated the standard of review that it applied in overturning Bowers and in holding the Texas statute (and 13 other state statutes) to be unconstitutional. Although the US Supreme Court invoked much of the language employed in traditional rational basis review in striking down the Texas statute that prohibited people from having gay sex, constitutional scholars have pointed out that the Court actually engaged in a much more searching standard of review than that involved in mere rational basis review. In May, a three-judge panel of the US Court of Appeals for the Ninth Circuit analyzed Lawrence by carefully scrutinizing what the US Supreme Court actually did in Lawrence, as opposed to what the Court said it did, and concluded that the Court had, at the very least, engaged in heightened scrutiny (quasi-strict scrutiny) in striking down this measure (the dissenting circuit court justice went further, opining that the Court had applied strict scrutiny). The three-judge panel reinstated a lawsuit filed by an Air Force major (Margaret Witt) who had been suspended from duty pursuant to 10 U.S.C. sec. 654 (the basis for the “Don’t Ask, Don’t Tell” policy that prohibits openly gay men and women from serving in the Armed Forces) (see Witt v. Department of the Air Force, No. 06-35644). Circuit Judges Ronald M. Gould and Susan P. Graber held that the Court had applied heightened scrutiny, whereas Senior Circuit Judge William C. Canby held that the Court had applied strict scrutiny.
In June, a divided three-judge panel of the US Court of Appeals for the First Circuit upheld 10 U.S.C. sec. 654 (and thus “Don’t Ask, Don’t Tell”), but also applied a heightened level of scrutiny in its analysis (see Cook v. Gates, Nos. 06-2313, 06-2381, June 9, 2008). Like the Ninth Circuit panel, the First Circuit panel concluded that the Lawrence Court had not, in fact, applied rational basis review. Circuit Judge Jeffrey R. Howard, writing for the majority, held that Lawrence recognized a protected liberty interest in private, consensual sexual intimacy, requiring a “balancing of constitutional interests that defies either the strict scrutiny or rational basis label.” Judge Howard engaged in a meticulous examination of Lawrence, articulating four reasons in support of this holding. First, he noted that Lawrence relied on other cases (such as Roe v. Wade, supra, Griswold, supra, and Eisenstadt, supra) that recognized a due process right in the realm of decisions relating to personal sexual conduct that merited heightened scrutiny. Second, he noted the tenor of the language employed by the Lawrence Court, which used strong language to overturn Bowers and to stress the dignity of gay Americans (“The case…involve[s] two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”). This language was consonant with, and consistent with discussions of core constitutional rights that clearly mandate a greater level of protection. Thirdly, Judge Howard noted that in overturning Bowers, the Lawrence Court explicitly stated that Justice John Paul Stevens’ dissent in Bowers should have been controlling; this dissent clearly asserted that the right to engage in private, consensual gay sex with an adult partner was in the same category as recognized fundamental constitutional rights. Finally, Judge Howard noted what numerous constitutional scholars have noted – which is that, had the Lawrence Court engaged in genuine rational basis review, the State of Texas would undoubtedly have won (this level of review, described as a “paradigm of judicial restraint” (see FCC v. Beach Communications, Inc., 508 U.S. 307 (1993)), permits even post hoc justifications for the challenged legislation, and permits the reviewing court to reach out and assert its own justification(s), independent of and in addition to the state’s arguments).
Two circuit panels have now interpreted Lawrence as incorporating a heightened level of judicial scrutiny. The failure of the US Supreme Court to acknowledge, explicitly, the level of review that it applied should not be confused with an assumption that the Court employed rational basis review merely because the Court employed some of the language associated with traditional rational basis review. The Lawrence Court explicitly rejected the notion that rights deserving of a higher level of review than mere rational basis review must necessarily be rooted in the “history and tradition” analysis usually reserved for the recognition of fundamental rights, instead pointing explicitly to an “emerging awareness” of the right to privacy in certain sexual contexts. Two circuits have therefore taken the official position that Lawrence involved more than mere rational basis review; the Ninth Circuit adumbrates a heightened scrutiny analysis, whereas the First Circuit embraces a balancing test in which the right to gay sexual privacy must be recognized and balanced against a sufficiently important governmental interest.)
Strict constructionists would deny that the Due Process Clause of the Fourteenth Amendment (or its Fifth Amendment counterpart) incorporated substantive protections against state action; all of the above decisions would be unsupportable in the eyes of a jurist who adheres to an absolutely literal interpretation of the Due Process Clauses. Rights which Americans take for granted – the right to use contraceptives, the right to teach your children the languages of your choice, the right to marry a person of a different race – would not exist under such a judicial regimen. All of these matters would be subject to the outcome of the democratic process. Article III courts would merely review the procedural fairness of the laws passed by Congress and by the states, completely avoiding any analysis of the substance (or the “why”) of the law.
This is not how the judiciary functions in the context of a constitutional democracy. A key role of the courts is to protect the rights of minorities, consistent with the generally recognized definition of a democracy as being a system in which the majority rules, subject to certain rights that are preserved for minorities regardless of majoritarian sentiment. In United States v. Carolene Products Co., 304 U.S. 144 (1938), the US Supreme Court hinted at what has become a theory of judicial review that arguably operated when Romer v. Evans, 517 U.S. 620 (1996) was handed down. In the oft-cited Footnote 4 of Carolene Products Co., the Court made reference to the possibility that a democracy can, in the words of constitutional scholar John Hart Ely, “malfunction” (see “Democracy and Distrust; A Theory of Judicial Review” by John Hart Ely – this book has become one of the most oft-cited texts employed by constitutional scholars). Ely identifies one type of democratic “malfunction” occurring when a democracy restructures itself in such a manner as to “keep the outs out and to keep the ins in.” This is certainly what occurred in 1992 when the people of the State of Colorado amended their state constitution in such a manner as to deny to gay persons, and to gay persons alone, the right to petition their government, at any and all levels, for redress of grievances, in both the public and the private sectors. Although the US Supreme Court claimed that it adopted the rational basis test in striking down this measure (which was named “Amendment 2”), constitutional scholars have pointed to the strong language employed by the Court in this decision, and have observed that the stated rationale of the Court was not really different from the rationale adopted by the Colorado Supreme Court. (Romer was an equal protection case, and a full analysis of this decision and its implications falls outside the scope of this essay.)
While the writer respects the position adopted by “strict constructionists,” the writer deplores the actual operation of this judicial philosophy and believes it to be fundamentally un-American. The judiciary should be more than an interpretive body; it is a crucial structural and operational check against majoritarian overreaching, or excesses. Associate Justices Antonin Scalia and Clarence Thomas, with their hysterical, shrill, over the top dissents in both Lawrence and Romer revealed, with chilling verbiage, the direction in which their versions of “strict constructionism” would take America.