America's Unwritten Constitution: The Precedents and Principles We Live By (22 page)

But if a right is not an express, implied, or enacted entitlement, or part
of America’s lived Constitution, then in what way, precisely, is it a genuinely
constitutional
right? Justice Harry Blackmun’s opinion for the Court in
Roe
failed to squarely address this question. Remarkably, his opinion seemed almost uninterested in explaining what clause or clauses of the Constitution supported the specific right announced by the Court in the name of the document. He did not even quote the constitutional patch of text on which he claimed to be relying—the Fourteenth Amendment’s due-process clause. Had he bothered to examine this clause, he would have found the word “process” to be a large stumbling block to his openly substantive approach to abortion rights. Notably, nearly four decades after it was handed down,
Roe
still roils and polarizes, unlike many of the other unenumerated-rights cases that we have encountered. (In
Chapter 7
, we shall probe an entirely different and far more plausible line of defense of abortion rights, focusing not on privacy and substantive due process à la
Roe
, but instead on principles of gender equality and women’s rights, principles that
Roe
itself overlooked.)

In other areas where litigants have made unenumerated-rights claims far in advance of actual American practice, the Court has generally declined to rush in. For example, a strong philosophical claim might be made on behalf of a right of any competent adult to end his own life at the time and in the manner of his own choosing and to enlist professional medical assistance in implementing his free choice. Nothing could be more private—none of the government’s business!—than the question of how and when one chooses to leave this world, advocates of this right have argued. Yet in 1997, the Court in
Washington v. Glucksburg
unanimously reversed an exuberant circuit court opinion that had declared a broad constitutional right to die. After setting forth the facts of the case, the
Glucksburg
Court launched its analysis as follows:

       
We begin, as we do in all due-process cases, by examining our Nation’s history, legal traditions, and practices. In almost every State—indeed, in almost every western democracy—it is a crime to assist a suicide. The States’ assisted-suicide bans are not innovations. Rather, they are longstanding expressions of the States’ commitment to the protection and preservation of all human life. Indeed, opposition to
and condemnation of suicide—and, therefore, of assisting suicide—are consistent and enduring themes of our philosophical, legal, and cultural heritages.
³⁷

The justices have likewise declined to recognize a constitutional right of a patient to use an otherwise illegal drug such as marijuana when a licensed physician has prescribed the drug in order to alleviate intense pain. Although such a right has considerable moral appeal to many thoughtful analysts and may one day come to persuade a majority of Americans and their elected lawmakers, that day has not yet arrived. On this issue, as on many other issues involving unenumerated rights, the Court has shown little interest in leaping far ahead of America’s lived experience.
³⁸

ANY SERIOUS ACCOUNT OF AMERICANS
’ lived experience must attend to the private places in which most Americans actually live—their homes—and to the sorts of private lives that are lived in these places. The idea of “home life” has long been integral to American culture, and thus to America’s unwritten Constitution. The opening picture of this chapter presents an idealized mid-nineteenth-century depiction of home life; many of the themes and elements of this specific depiction of “home sweet home” have deep roots in the Founding era and continue to have strong resonance in our time. True, the word “privacy” looms larger in modern constitutional discourse than it did in the Founders’ era; but prototypes of modern privacy theory can be found in several of the sources that ultimately led to the framing and ratification of the Ninth Amendment and its broad affirmation of unenumerated rights.

ON NEW YEAR
’
S EVE,
1787, Federalist Noah Webster (of later dictionary fame) spoofed Anti-Federalists, many of whom smelled tyranny around every corner—they had already begun to compose long lists of proposed amendments to the Constitution explicitly guaranteeing specific rights they deemed at risk. These Anti-Federalists had not gone nearly far enough, wrote Webster as he offered up his own Swiftian amendment
proposal: “That Congress shall never restrain any inhabitant of America from eating and drinking, at seasonable times, or prevent his lying on his left side, in a long winter’s night, or even on his back, when he is fatigued by lying on his right.”
³⁹

Webster was not alone in resisting the Anti-Federalist push for a detailed Bill of Rights. In most states, leading Federalists argued that no enumeration could possibly list all rights and that any omitted right might be at greater risk if stingy interpreters ever construed the list in negative-implication fashion. In the First Congress, Federalist Theodore Sedgwick declared that if the aim were truly to itemize all the people’s rights, Congress would need to specify “that a man should have a right to wear his hat if he pleased, that he might get up when he pleased, and go to bed when he thought proper.”
⁴⁰

In the end, the Founding generation rejected the broad Federalist argument that a Bill of Rights was unnecessary and dangerous. (It surely didn’t help that the Federalists had also argued, quite inconsistently, that the Philadelphia Constitution already contained a de facto Bill of Rights, in Article I, section 9.) But in the drafting of the Bill, the Webster-Sedgwick concern did persuade the First Congress to stress, via the Ninth Amendment, that the new Bill of Rights did not aim to enumerate exhaustively all the rights that were retained by the people.

Some of the very intrusions that Webster and Sedgwick smugly assumed that governments would never attempt—or at least close cousins of these intrusions—have in fact come to pass, often at the hands of state or local officials rather than the dreaded federal government. The framers of the Ninth Amendment and its Fourteenth Amendment counterpart, the privileges-or-immunities clause, were thus farsighted in attempting to equip posterity with weapons to wield against government oppression whenever officials tried to overreach in the ways that Webster and Sedgwick thought unimaginable.

True, governments have generally not regulated on which side a man may lie in his own bed or when he must rise from that bed. But governments have at times tried to dictate with whom he may lie in that bed and have also tried to outlaw certain physical positions in that bed. Contrary to Webster’s sanguine expectations, governments have also sought to regulate
what persons may place in their mouths—perhaps not with intrusive rules about “eating and drinking,” but rather with detailed dictates about which body parts of fully consenting adults may not lawfully be brought into oral contact. Modern substantive-due-process law emerged in response to laws such as these.

Notably, the particular brand of substantive due process that was revived by Justice Harlan in
Griswold
and that has been prominently on display in unenumerated-rights case law ever since has departed in one key respect from the brand of substantive due process that characterized the so-called
“Lochner
era.”
Lochner’s
watchword was “property,” whereas modern substantive due process instead highlights “privacy.”

Property by its very nature lends itself to many possible distribution patterns. Some of these patterns may be so highly unequal and so easily translatable into unequal political power as to threaten the Constitution’s vision of proper republican equality between voters and among candidates. In the
Lochner
era (which ran, roughly, from the mid-1880s to the mid-1930s), a wide property gap had begun to open up in America separating the plutocratic haves from the proletarian have-nots.
Lochner
-style substantive due process aimed to thwart various governmental programs seeking to reduce these emerging inequalities of wealth and property.

Privacy, by contrast, is inherently more egalitarian. Whether fabulously wealthy or penniless, a person can be in only one bed at a time. Intimacy is distributed more equally across social classes than is property, and in a way far less likely to distort the nature of democratic politics.

To a blinkered literalist, property might seem to have a stronger constitutional claim than privacy. The word “property,” after all, appears twice in the Bill of Rights and again in the Fourteenth Amendment, whereas the word “privacy” is altogether absent from the written Constitution. But when we read between the lines and heed the document as a whole, with particular attention to its arc across the centuries, a different picture emerges. The 1913 ratification of the Federal Income Tax Amendment, one of the notable populist events of the twentieth century, blessed redistributive economic policy by endorsing a tax that everyone understood would likely feature a progressive structure taxing the wealthy at steeper rates than the poor.
⁴¹
Many other post-Founding amendments have also reinforced
the idea of equality, even though the word itself is often merely implicit. In centering modern unenumerated-rights law on “privacy,” the modern Court has intuitively latched onto a concept that nicely blends the best of property and equality—a concept that has been an important element of America’s lived Constitution from the Founding on, and one whose strength has only increased in American law and culture over time.

While Founding-era laws at the state and local level were often quite intrusive in claiming regulatory authority over family structures and human sexuality, not all of these laws were vigorously enforced. For instance, although edicts in the early republic formally prohibited various consensual sexual relations between adults, evidence rules at the time often prevented the “accomplices” from testifying against each other. (Both sexual partners were in a sense “interested parties” under Founding-era evidence theory.) As a result, these laws were usually enforced only when the offense had occurred in public in front of scandalized third parties who could testify to the breach of public-decency norms or in cases of coercive sex where the defendant’s sexual partner was not an “accomplice” but rather a victim.
⁴²

In their discussions of unenumerated rights, both Webster and Sedgwick had highlighted privacy, though neither man used the word. Both had invoked the bedroom as an obvious place where government ordinarily did not belong. A similar vision animated a Pennsylvania Anti-Federalist essayist, who raised the specter that a federal constable looking for “stolen goods” might pretextually “pull[] down the clothes of a bed in which there was a woman and search[] under her shift.”
⁴³

In an effort to assuage privacy concerns such as this, the First Congress adopted a Fourth Amendment limiting the power of government to search private places and seize private things. Though the word “privacy” does not appear on the surface of the text, the concept is strongly implicit. Indeed, shortly after the Warren Court began reorienting unenumerated-rights jurisprudence away from “property” and toward “privacy” in the 1965
Griswold
case, the justices did the same thing to Fourth Amendment jurisprudence in the 1967
Katz v. United States
case. Prior to
Katz
, Fourth Amendment rules had pivoted on property-law concepts, such as trespass. But in
Katz
, the Court held that the Fourth Amendment could apply even if no technical property-rights violation had occurred. An unreasonable wiretap,
for example, would violate the Fourth Amendment even if government had never set foot on the private property of the search target. As the second Justice Harlan explained in his influential concurrence in
Katz
, the key Fourth Amendment issue was whether the government had violated a person’s “reasonable expectations of privacy.”

AT LEAST TWO WORDS OF THE FOURTH AMENDMENT
itself offered strong support for this vision: “persons” and “houses.” The amendment affirmed a general right of Americans to be secure against unreasonable searches and seizures of “their persons, houses, papers, and effects.” The word “property” went unmentioned and was swept into the catchall category of “effects.” But intrusions upon individual bodies—“persons”—raised special concerns. As with privacy more generally, bodies are distributed in egalitarian fashion. Every individual, rich or poor, has one body—is one “person” entitled to special Fourth Amendment solicitude. Similarly, “houses” were singled out above and beyond all buildings, in part because a person’s house has always been a special seat of privacy,
^*
and in part because houses in fact and folklore have been a particularly broadly distributed type of property.
⁴⁴

At the Founding, one of the most famous, and famously egalitarian, affirmations of the sanctity of houses had appeared in a 1763 speech by William Pitt, a hero to many colonists: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his forces dare not
cross the threshold of the ruined tenement!”
⁴⁵
A similarly egalitarian vision surfaced during Reconstruction when Republicans enacted a Homestead Act subsidizing western homeownership and flirted with the idea of giving each southern freedman forty acres and a mule.
⁴⁶

In the late twentieth and early twenty-first centuries, politicians of both parties have found common ground in a national policy promoting home ownership for Americans of all races and classes. Enormous and expensive pillars of this national policy—federal facilitation of the home-mortgage market and federal tax deductions of home-mortgage interest payments and of local property taxes—are virtually untouchable politically, and in this respect resemble relatively clear constitutional texts that place particular issues politically off-limits. These pillars are politically untouchable precisely because home ownership is a broadly egalitarian American ideal open to a wide slice of the voting citizenry. (Social Security benefits are politically entrenched in modern America for similar reasons.) Home ownership is part of the American Dream and the national narrative. For many citizens, the home is the single largest family asset.
⁴⁷