One of the most intense partisan conflicts in Washington, D.C., during the Bush presidency has been the struggle over Senate confirmation of President Bush's nominees to the federal court system. It has been not only a conflict over persons but also a clash of ideas, a conflict over differing jurisprudential theories. Republicans say they support judicial nominees "faithful to the Constitution," while Democrats condemn those same persons as "far-right-wing extremists."
As a result, a number of Bush nominees to the appellate bench remain stalled in the Senate because of Democratic filibusters or threats of filibuster, and speculation continues about even more bitter conflict over potential Supreme Court nominees should one of the current justices announce his or her retirement.
A False Dichotomy
Yet the debate over constitutional interpretation that is now taking place in the political arena and in the realm of theory is based on a false alternative. Politically, the split is between a "liberal" view (the so-called loose constructionist view), which tends to interpret rather broadly both federal powers and certain kinds of rights, and a "conservative" view (the so-called strict constructionist view), which tends to interpret more narrowly both powers and rights. Theoretically, the split is between "non-interpretivists," who believe judges may legitimately draw upon values or principles found outside the text of the Constitution, and "interpretivists," who believe judges must confine themselves to that text. Some interpretivists believe judges should follow the original intent or meaning of particular constitutional provisions; others believe judges should be limited to the text and only the text, regardless of extrinsic evidence of its original intent or meaning. In either form, interpretivism is usually associated with conservative constitutionalism because it criticizes liberal judicial activism as illegitimate.
But however the debate is framed—conservative versus liberal, interpretivist versus non-interpretivist—it presents a false choice between alternatives, neither of which is fully faithful to the Founders' constitutional vision of individual freedom and limited government. On the one hand is a conservative jurisprudence that reads the rights-guaranteeing provisions of the text far too narrowly and refuses to recognize the existence of rights not found explicitly in the text of the Constitution. On the other hand is a liberal jurisprudence that reads the provisions of the Constitution that grant powers to the federal government—particularly the Commerce Clause and the so-called General Welfare Clause—so broadly as to give Congress virtually unlimited legislative powers and thus permit the federal government to regulate almost all aspects of Americans' daily lives.
What Is Ignored
Both conservative and liberal constitutionalism, in short, ignore essential principles of the Constitution, principles that are stated clearly and explicitly in the document itself. The conservatives' chief blind spot is the Ninth Amendment (see sidebar for this and other constitutional passages), which was intended by the Founders not only to protect unenumerated rights but also to ensure that rights provisions generally be interpreted as broadly as possible. Conservatives also tend to overlook, or to interpret too narrowly, the many provisions in the Constitution—particularly the Due Process clauses of the Fifth and Fourteenth Amendments—that explicitly protect property and liberty rights in all their aspects, including the so-called right to privacy and other rights of personal autonomy.
Left-liberals, on the other hand, are blind to the Ninth Amendment's companion provision in the Bill of Rights, the Tenth Amendment, which affirms a fundamental feature of the Constitution: that it creates a national government of limited, enumerated powers. By dismissing the Tenth Amendment as stating a mere truism, as the Supreme Court did in its 1941 decision in United States v. Darby, liberal constitutionalism not only ignores the importance of the Amendment (which Thomas Jefferson regarded as the foundation of the Constitution) but also tends to render meaningless the Framers' carefully crafted list of Congress's legislative powers in Article I of the Constitution. Liberal constitutionalism thus overlooks the mandate of the Tenth Amendment, which was meant not merely to protect federalism but also to ensure that the power-granting clauses of the Constitution be interpreted narrowly, in light of the document's enumerated-powers scheme.
Both conservative and liberal constitutionalism, in short, ignore essential principles of the Constitution.
Even in the aspects of their jurisprudence that are most faithful to the Constitution, conservatives and liberals fail to appreciate fully its key principles. Conservatives, although they are correct to criticize left-liberals' blindness to the Tenth Amendment, have their own blindness to the Amendment, which they tend to see as limited to the protection of federalism or, even more narrowly, to the protection of "states' rights." Not only is that concept misleading—only individuals truly have rights; states have powers—but it also misses the real significance of the Tenth Amendment. That Amendment should be regarded as a basic rule of interpretation. Yes, as conservatives say, it is intended to limit the scope of the national government's powers and to protect the legitimate powers of state governments—but it is also intended to protect the rights of individuals. Conservatives miss the latter fact because they ignore the last four words of the Tenth Amendment, which reserves powers not delegated to the national government either to the states "or to the people."
Left-liberals, on the other hand, while generally correct in their criticism of conservatives' unduly narrow view of individual rights, are themselves guilty of inconsistency and subjectivity in their regard for rights. A common criticism of liberal constitutionalism, and one that is entirely justified, regards its "double standard." Certain rights are given a preferential status—for example, the First Amendment's freedom of speech and the Fourteenth Amendment's right to "equal protection of the laws" (as applied to racially discriminatory acts of government). These are regarded as fundamental rights and as protected by a strict-scrutiny standard that requires a showing of "compelling" governmental needs to override them. Other rights—such as the property and economic-liberty rights of the Fifth and Fourteenth Amendments or the Second Amendment's right to firearms—are given lesser protection or are ignored altogether. Left-liberals do acknowledge an important implication of the Ninth Amendment—that courts should recognize the existence of unenumerated constitutional rights—but they are biased in favor of certain unenumerated rights, such as the so-called right to privacy. They reject other legitimate rights, such as those aspects of property rights and economic-liberty rights that courts in the early twentieth century protected under the rubric of "liberty of contract." By their selectivity, left-liberals fuel the conservatives' accusation that liberal judicial activism undermines the rule of law and replaces neutral, objective standards of constitutional interpretation with the subjective preferences of individual judges. As former attorney general Edwin Meese said, theirs is a "chameleon jurisprudence, changing color and form in each era."
When it comes to the mainstream debate over constitutional interpretation, therefore, modern Americans are faced with a catch-22: If they wish to avoid the dangers of liberal judicial activism, they must choose a conservative theory of strict construction, but under that theory they lose protection for certain kinds of rights. If they wish to avoid the dangers of crabbed conservatism, they must opt for the left-liberals' loose construction, but under that theory they lose meaningful limits on federal powers (as well as losing some other kinds of rights). Neither choice is acceptable to those who value individual liberty in all its aspects—economic freedoms as well as personal freedoms—and who value limited government.
Context and Context-Dropping
Both sides in the liberal-conservative debate assume, erroneously, that the same rules of interpretation apply to power-granting and power-limiting (that is, rights-guaranteeing) clauses. Treating these fundamentally different kinds of constitutional provisions alike overlooks the importance of context.
Context used to be a well-established canon of legal interpretation. It meant that each provision in a document ought to be understood in the context of the document as a whole and, especially, in light of the purpose of the whole document. In the case of the Constitution that purpose is to limit the power of government and to safeguard the rights of the individual. Unfortunately, the Supreme Court in the twentieth century has forgotten this basic canon of interpretation. Instead, the Court has engaged in the logical fallacy that Ayn Rand called "context-dropping."
In a 1973 essay, "Censorship: Local and Express," Rand discussed a series of Supreme Court cases dealing with obscenity prosecutions. In one of those cases, then chief justice Warren Burger, quoting an earlier Court decision (the 1941 Darby case, noted above), observed that "the nature and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts have no control." As Rand observed, "This is an outrageous instance of context-dropping: the Constitution, taken as a whole, is a fundamental restriction" on government's legislative power.
The specific form of context-dropping Rand identified here has (until very recently) characterized the Court's treatment of the Commerce Clause. That clause is one of the specific powers granted Congress in Article I, Section 8 of the Constitution. It says that Congress shall have the power "to regulate Commerce with foreign Nations, and among the several States." From the late 1930s until the mid-1990s, the Court regarded Congress's power over interstate commerce as "plenary," literally without limits, and so permitted Congress to pass laws regulating all aspects of Americans' lives, even non-commercial matters.
One of the most famous Supreme Court decisions expanding federal commerce powers—a decision infamous to students of constitutional law—was the 1942 decision in Wickard v. Filburn, when the Court held that a New Deal law, the Agricultural Adjustment Act of 1938, was constitutional under Congress's commerce power. The Court affirmed a penalty that the secretary of agriculture had assessed on an Ohio farmer for growing too much wheat—an amount in excess of the federal allotment—even though the wheat was grown for his own family's consumption. The Court's theory was that the wheat farmer's actions, when aggregated with similar actions by other wheat farmers, had a significant, albeit indirect, effect on the national market for wheat. Under this rationale, Congress had the power to regulate even non-commercial activities that might, if aggregated, have a substantial impact on interstate commerce.
Clarence Thomas on Powers and Rights
In its 1995 decision in United States v. Lopez, the Supreme Court, by a narrow 5-to-4 decision, finally put a limit on Congress's power under the Commerce Clause. It declared unconstitutional a federal "gun-free school zones" law that prohibited possession of firearms within a certain distance of school buildings. In his opinion for the Court, Chief Justice William Rehnquist rejected the theory that Congress could regulate any activity, even non-commercial activity (such as the mere possession of a gun), that might indirectly affect national commerce. Proponents of the law had maintained that possession of guns led to a greater likelihood of gun violence, that gun violence undermined the ability of schools to educate children, and that this detrimental effect on education adversely affected economic growth. It was a convoluted "house-that-Jack-built" argument, which the four dissenting justices nevertheless found sufficient as a rationale for the gun-prohibition law as a valid regulation of interstate commerce. In his opinion for the majority, however, Chief Justice Rehnquist rejected that rationale and held that non-commercial activities could not be subjected to Congress's regulatory power under the Commerce Clause.
Five years later, in United States v. Morrison, the Court reaffirmed this principle (by the same 5-to-4 majority), holding unconstitutional a provision in the Violence Against Women Act that allowed women who were the victims of violence a special right to sue in federal court. Again, the majority held that the activity being regulated by Congress was insufficiently related to commerce to fall under Congress's Commerce Clause power.
In both Lopez and Morrison, Justice Clarence Thomas concurred with the majority decision but wrote a separate opinion urging his fellow justices to reconsider the Court's entire Commerce Clause jurisprudence. Noting that Chief Justice Rehnquist's opinion for the majority still accepted the Wickard rationale—the substantial effects test, coupled with the aggregation principle—Justice Thomas warned that the Court continued to give Congress too much power under the Commerce Clause. "If we wish to be true to a Constitution that does not cede a police power to the Federal Government, our Commerce Clause's boundaries simply cannot be 'defined'" as the Court has defined them, Thomas noted in his Lopezconcurrence. "Such a formulation of federal power is no test at all: it is a blank check." Indeed, he added, "much if not all of Article I, Section 8 (including portions of the Commerce Clause itself) would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce." Moreover, he observed, "[o]ur construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution."
Clarence Thomas shares with other conservatives an aversion to the clear language of the Ninth Amendment.
More than any other justice currently on the Court—indeed, more than any justice who has sat on the Court for the past fifty years—Justice Thomas understands the importance of interpreting power-granting clauses, such as the Commerce Clause, in a manner consistent with the full context of the Constitution, including the Tenth Amendment. Unlike other conservatives on the Court, moreover, Justice Thomas understands that the Tenth Amendment does more than simply preserve so-called states' rights. He correctly understands it as a rule of interpretation limiting the scope of federal powers.
Unfortunately, Justice Thomas does not as fully appreciate the importance of context when it comes to interpreting the rights-guaranteeing provisions of the Constitution. Although he can be quite libertarian in his broad reading of certain enumerated rights, he shares with the other conservatives on the Court an aversion to giving broad protection to the unenumerated rights guaranteed under the Ninth Amendment and to the general right to liberty under the due process clauses of the Fifth and Fourteenth Amendments.
In the recent case of Lawrence v. Texas, where the Court declared unconstitutional the Texas law making sodomy a crime, Thomas joined with Justice Antonin Scalia and Chief Justice Rehnquist in dissent. Thomas called the sodomy law "uncommonly silly" and said that if he were a member of the Texas legislature he would "vote to repeal it," because "punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources." Nevertheless, Thomas maintained that "as a member of this Court" he could not invalidate the Texas law. He said that he could find "neither in the Bill of Rights nor in any other part of the Constitution a general right of privacy," or the liberty right recognized by the Lawrence majority.
Evidently, Thomas shares with other conservatives an aversion to the clear language of the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Thus, the Ninth Amendment provides a rule of interpretation that commands judges—those who "construe" the language of the Constitution—to take seriously the existence of unenumerated rights, such as the right to privacy.
Despite the fears of some conservatives, such rights can be objectively determined. In the first place, the unenumerated rights protected by the Constitution come in two kinds, just as the enumerated rights do. Easiest to understand are civil rights, based on tradition or custom, which Jefferson called "fences against wrong." These are rights that history has proved are necessary to help prevent the abuse of governmental power, and their objective basis can therefore be established by historical evidence and legal precedents. Examples of an enumerated civil right is trial by jury. An example of an unenumerated civil right might be the presumption of innocence in a criminal prosecution.
The other type of rights are natural rights, and they are the ones conservatives are most wary of protecting when they are not enumerated. The principal fear is of judicial subjectivity in the identification of these rights. But that fear can be allayed by being clear about the nature of these rights. First, natural rights are all "liberty rights," that is, they pertain to an individual's freedom of action and are particular aspects or applications of the fundamental rights identified in the Declaration of Independence (life, liberty, and the pursuit of happiness). Secondly, natural rights are "compossible," that is, one person's right does not interfere with another person's right.
The natural rights enumerated in the Constitution, such as religious freedom or freedom of speech, meet these criteria, and so too must genuine unenumerated rights. The rights to privacy and liberty of contract do meet these criteria, and thus the right to refuse medical treatment, for example, is a genuine if unenumerated natural right. Welfare rights—such as the alleged right to health care or the alleged right to a fair wage—do not meet these criteria. They do not pertain to an individual's freedom of action, nor are they compossible. Rather, securing these rights requires the invasion of other persons' rights. As David Kelley explained in A Life of One's Own, goods and services have to be produced by someone; therefore, any alleged right that entitles one to goods or services must at the same time require that it be produced by some person and transferred, by force, to the claimant.
Thomas also shares with many conservatives a reluctance to give real meaning to the due process clauses of the Fifth and Fourteenth Amendments, which prohibit government from depriving persons "of life, liberty, or property, without due process of law." (The federal government is prohibited by the Fifth Amendment, state governments by the Fourteenth.) These conservatives interpret the due process clauses as applicable only to procedural due process—that is, as nothing more than a requirement that government follow proper procedures before depriving persons of their rights. They deny that due process serves as a limit on the substantive reach of legislative powers, of either Congress or the state legislatures. Such a narrow interpretation of due process, however, fails to protect fully the fundamental rights of life, liberty, or property, for it means that government can take away those rights provided it does so by a validly enacted law. Only by giving the due process clauses a substantive meaning—only by viewing them as limits on all governmental powers, including the legislative power—can judges truly protect the rights of individuals.
By thus failing to protect rights guaranteed by the Ninth Amendment as well as the Fifth and Fourteenth Amendments' due process clauses, conservatives are as guilty of context-dropping as the left-liberal justices who failed to enforce the limits that the Tenth Amendment places on Commerce Clause powers.
Anthony Kennedy on Rights and Powers
Justice Anthony Kennedy, in his opinion for the majority of the Court in Lawrence, does show an appreciation for the full context of rights-guaranteeing provisions, particularly the general right to liberty protected under the Fourteenth Amendment. "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places," observed Justice Kennedy. "In our tradition the state is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the state should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."
In Lawrence, dealing with a Texas law that made it criminal for same-sex couples to engage in oral or anal sex, "liberty of the person both in its spatial and more transcendent dimensions" was involved, Justice Kennedy added. Although ridiculed for his choice of terms both by colleagues on the Court (particularly by Justice Scalia in his scathing dissent) and by conservative commentators, Justice Kennedy was trying to express the idea that liberty, in the context of sexual activity, comprises not only the freedom to engage in certain physical acts but also the freedom to choose one's partner, the person with whom one desires an intimate relationship. "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice," Justice Kennedy concluded for the five-justice majority on the Court.
Just as regard for the full context of constitutional provisions requires judges to interpret power-granting clauses narrowly, a contextual approach to constitutional interpretation also requires judges to interpret rights-guaranteeing, or power-limiting, clauses broadly. Justice Kennedy, at least in his majority opinion in Lawrence, did take a broad view of the general right to liberty as protected under the Constitution. "Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific," he observed. "They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation invoke its principles in their own search for greater freedom."
The Idea of a "Living Constitution"
Although conservatives might dismiss this passage from Justice Kennedy's opinion as an illustration of the "living Constitution" view they decry, they would miss the critical point: Justice Kennedy was referring to a rights provision. The idea of a "living Constitution" that evolves over time, changing according to external circumstances and perceived social needs, is indeed a dangerous idea that undermines the rule of law when applied to governmental powers. Sadly, that is exactly what the Supreme Court has tended to do throughout American history. Once the Court began recognizing implicit or "inherent" powers of the national government, the enumerated-powers scheme of the Constitution began to be eroded, resulting in the virtual "blank check" that Justice Thomas so rightly decried in Lopez. When applied to rights provisions, however, the idea of evolving constitutional standards that more perfectly protect individual freedom is not only consistent with the overall purpose of the Constitution, it is also, arguably, mandated by the Ninth Amendment—or the equivalent provision that protects unenumerated rights against state governments, the Fourteenth Amendment.
This distinction between powers provisions and rights provisions is fundamental to a contextual view of the Constitution, for it goes to the heart not only of the Constitution but of the legitimacy of government. As the Declaration of Independence states, government is created for the purpose of protecting natural rights, and its legitimate powers are derived from the consent of the governed. There are, then, two necessary conditions for the legitimacy of government action, one substantive (government must protect rights, not violate them), the other procedural (the powers government exercises in fulfilling its functions must be granted by the consent of the governed). Both conditions are necessary; neither alone is sufficient. So, even if the people in a given political society consent, government cannot violate an individual's rights; and, even when protecting rights, government cannot exercise powers to which the people have not consented. It is because of this second provision that it is illegitimate for judges, even when striving to make constitutional powers relevant to modern circumstances, to add powers not enumerated in the text.
To be concrete, Article I, Section 8 gives Congress the powers "to raise and support Armies" and "to provide and maintain a Navy." Obviously, the Constitution said nothing about an air force. Consequently, the Jeffersonian approach implies that the Constitution should have been amended specifically to give Congress the power to create an air force. To do less undermines the enumerated-powers scheme of the Constitution and destroys the very purpose of having a written constitution, which is to limit the powers of government. Rights provisions, by contrast, are an entirely different matter. Not only is it legitimate for judges to interpret them broadly to make them relevant to modern changed circumstances, but the Ninth Amendment requires judges either to expand the scope of already-recognized rights (whether or not enumerated) or to recognize new unenumerated rights, as changed circumstances require for the protection of genuine rights. A simple example, frequently cited in legal scholarship, is the expansion of the Fourth Amendment protection against "unreasonable searches and seizures" to include limits on government's power to wiretap phone lines and Internet transmissions. More controversial would be Second Amendment rights, but a good argument can be made—and has been made by a number of gun-rights scholars, including Professor Glenn Reynolds of the University of Tennessee—that if the individual's right "to keep and bear arms" is to be meaningful today, it must include the type of weapons the military possesses, because one core value of the Amendment is to preserve the people's ability to engage in armed rebellion against a tyrannical government. (Even so, the Second Amendment would not apply to weapons so inherently dangerous that their mere possession constitutes an imminent threat to the safety and lives of other citizens. Biological weapons might be an example.)
When the next vacancy occurs on the Supreme Court, the ideal nominee would be a judge whose outlook combines the best features of Justice Thomas's concurring opinion in Lopezand Justice Kennedy's majority opinion in Lawrence. That is, the nominee would be a judge who understands both the importance of the Tenth Amendment as a mandate for strict interpretation of federal powers and the importance of the Ninth Amendment (together with the Fourteenth Amendment, when applied to the states) as a mandate for broad interpretation of individual rights.
More abstractly, the ideal Supreme Court justice would be one who understands the importance of interpreting the Constitution contextually, interpreting each provision of the Constitution in light of both its place in the text as a whole and the overall purpose of the document. When one tears an idea out of its context, one deprives that idea of its meaning. When one interprets a provision of the Constitution out of context, one deprives the Constitution of its meaning, making the document a mere dead-letter.
The ideal nominee, therefore, would understand that just as contracts and other legal documents ought to be interpreted holistically, with each individual provision seen in light of the whole document and its overall purpose, so too should the Constitution, for two reasons. First, and most simply, the Constitution is itself a legal document. Hence, all the considerations that mandate applying this basic canon of interpretation to ordinary legal documents—particularly considerations of objectivity—hold equally for the Constitution. In addition, however, the Constitution is a special kind of legal document; in our system, it is the higher law that binds government, and hence all other laws. As noted above, the legitimacy of the Constitution depends on its efficacy in protecting individual rights and in limiting government to its enumerated powers. If a constitution is interpreted in such a way that it fails to perform those essential functions in any significant degree, then it no longer deserves to be treated as higher law.
Thus, the ideal nominee to the Supreme Court would be someone who looked at constitutional provisions in light of the whole document, and particularly the purpose of the whole document: to limit government and to maximize individual liberty. He would see freedom as the general rule and restraints on freedom, through the coercive power of government, as the exceptions, justified only when necessary to secure individual rights. In practice, the ideal justice would be neither a "liberal" nor a "conservative," for both sides in the mainstream jurisprudential debate ignore important rights guarantees and important limits on governmental power. Rather, the ideal justice would be a libertarian who well understood the epistemological importance of contextual thinking.
Also by David N. Mayer:
"The American Revolution was not quite radical enough."
David N. Mayer is Professor of Law and History at Capital University in Columbus, Ohio, where he teaches courses in American constitutional history, English and American legal history, and intellectual property (copyright and unfair trade practices law), as well as a seminar in Libertarianism and the Law. Before teaching at Capital, Professor Mayer taught at IIT Chicago-Kent College of Law in Chicago, Illinois; held a postdoctoral fellowship at the Institute for Humane Studies, George Mason University, in Fairfax, Virginia; and was an attorney with the firm of Pierson Semmes and Finley in Washington, D.C. He has received degrees from the University of Virginia (Ph.D. in History, 1988, and M.A. in History, 1982) and the University of Michigan (J.D. in 1980 and A.B. in 1977). He has written The Constitutional Thought of Thomas Jefferson (Charlottesville: University Press of Virginia, 1994, paperback 1995), Liberty of Contract: Rediscovering a Lost Constitutional Right (Washington, D.C.: Cato Institute, 2011), and several articles in law reviews, history and political science journals.
A former Salvatori Fellow of the Heritage Foundation, Professor Mayer also serves on the board of directors of the 1851 Center for Constitutional Law (in Columbus, Ohio), is a member of the editorial board of the Cato Supreme Court Review and a member of the fellowships Academic Review Committee for the Institute for Humane Studies. He also is a member of the advisory board of The Atlas Society and has been a frequent speaker at Atlas Society conferences, including the summer seminars. He also has served as faculty advisor to Capital University Law School's chapter of the Federalist Society for Law and Public Policy Studies and to the Intellectual Property Law Society.