Many thanks to Randy Barnett for his very thoughtful response to my post “The Book of Judges,” which criticizes a natural rights constitutional jurisprudence. Barnett says I was going after a straw man—that real defenders of “judicial engagement” are not calling for a philosopher’s debate on the federal bench that would produce a settled list of the type and content of natural rights for federal judges to enforce. He isn’t about defining and specifying natural rights in judicial decisions. Instead, he notes that they exist, and they are protected in the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment. He argues that federal courts, under a “presumption of liberty” that the natural rights Constitution invests in the judiciary, have the power to strike down federal or state legislation that unnecessarily or improperly abridges natural rights.But again I ask, how should we identify and specify the natural rights that “legitimate” governments guarantee and protect? The question seems nearly unavoidable.
And it closes with this:
We are told that a philosophy of judicial engagement will not lead to dueling natural rights jurists usurping republican government. I won’t believe this until they tell me what rights they see.
There is a lot in between, but most of it is nonresponsive to my original post, which I think bears repeating: The Constitution’s affirmation of the preexistent natural “rights . . . retained by the people” as well as the “powers . . . reserved . . . to the people” are textual authority for the proposition that “first come rights, and then comes government,” and as the Declaration tells us, it is “to secure these rights that governments are instituted among men deriving their just powers from the consent of the governed.” So a government that violates these rights is not exercising its “just powers.”
The question then arises, how best to secure these rights? Along with most everyone at the Founding, and everyone at the time of the Fourteenth Amendment, I think judges have a role to play here. But what is that role?
Under the modern Carolene Products + Lee Optical + Griswold approach — what I call Footnote Four Plus — judges are supposed to turn a blind eye towards any abuses of legislative power, for example to enrich some businesses at the expense of their competitors — while reserving judicial protection to special fundamental rights (under “substantive due process”) and to suspect classes of people (under “equal protection”). Such fundamental rights are (in theory at least) to receive “strict scrutiny,” a standard that is very hard to meet. So, once a right has been identified, a law is likely to fall. But in the absence of such a right, a law is guaranteed to survive.
Therefore, under this regime it is hugely important (a) which rights are recognized and (b) that very few rights be recognized lest all governance be brought to its knees. But this is not the only way to protect the rights retained by the people. Nor was it the way that rights were protected before 1955 when Williamson v. Lee Optical adopted hypothetical “rational basis” scrutiny that all laws can survive.
Instead, courts asked whether a restriction on liberty — any liberty — was unreasonable, arbitrary or discriminatory. The vast preponderance of such restrictions easily met this standard. Even in Lochner itself an extensive list of health and safety regulations of bake shops went unchallenged and was blessed by the Supreme Court in its opinion. Under this approach, all government had to do was show how the measure was a reasonable means of accomplishing one of its legitimate ends. So the analytic action was not on identifying the right, but on identifying the proper ends of government. With respect the federal government, the Constitution contains a list of such ends or “objects” in Article I, Section 8. States have a general police power, but this power is not unlimited. It is limited to protecting the rights of the people.
There are two ways laws do this. The first is by prohibiting wrongful conduct that violates the rights of others. Murder, rape, robbery, theft, etc. are universally recognized wrongs of this type. These actions are said to be exercises of license, not liberty. The second is to regulate the rightful exercise of liberty to protect others from the risk that their rights might be violated. So, for example, one adopts a building code that requires balcony railings to be a particular height to prevent someone from falling, rather than wait for them to fall and then sue the building owner for negligence after the fact.
Here is the key: if the exercise of any right may be reasonably regulated to protect the rights of others, then the importance of identifying the exact contours of our rights is greatly diminished. If an act violates the rights of others, then it can be prohibited. But if not, it can still be regulated provided that regulation is reasonable. What matters is the purpose or end of the regulation and whether it is a reasonable means to that end — or whether instead it is actually a pretextual exercise of power for other purposes than protecting the rights of others — like enriching others or preventing competition.
Remember we are speaking only of justifying police power restrictions on liberty to benefit some at the expense of others. We are not talking about spending tax money for the general welfare. That power must be constrained by other principles. That taxes may at some point be liberty restricting is a problem for a free society, but the tax power is distinct from the power of government to regulate or prohibit conduct.
Health and safety regulations are the easiest examples of legitimate ends of the police powers. Or as John Marshall said in Gibbons v. Ogden: “Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State….”
When one adds the “general welfare” to this list of unenumerated state powers then one starts having the same issues of indeterminacy that Reinsch has with unenumerated rights. But as long as a regulation is a good faith effort to protect the health and safety of the public, it is constitutional. Laws that have only a tenuous relationship with health and safety are likely to be pretextual exercises of powers for other purposes and are bad faith assertions of the police power.
About this, there is widespread agreement. Agreement persists if one adds “public morals” to the list of appropriate police power ends. For example, prohibiting fornicating or even nudity in the park or on the sidewalks, where the public has a right to be, is an appropriate and generally uncontroversial means of protecting the right of the general public — including both adults and children — to use public spaces.
Where agreement breaks down is when the category of “morals” legislation is broadened to include private morals, or conduct that takes place in private and does not intrude into the public domain. This is where there is controversy. But we have now narrowed down the controversy to a small subset of the police powers of state governments: is the regulation of private morality within or outside the legitimate police power of states — and how are we to decide this question?
But notice that in all this, it is not necessary to identify and carefully define our “rights” other than to distinguish rightful from wrongful acts like murder, theft, and the like. Most regulations do not purport to be about wrongful conduct, but are about regulating rightful conduct. And if rightful conduct may properly be reasonably regulated, then what we need to pay attention to is whether such regulations are reasonable or whether they are instead unreasonable, arbitrary or discriminatory means of accomplishing ends that are not justly entrusted to government. Like benefiting ophthalmologists and optometrists at the expense of opticians.
Judges can tell the difference, and are called upon to do so routinely when enforcing the Equal Protection Clause and the Privilege and Immunities Clause of Article IV. And they can do it without speculating about the natural rights of man.