America's Unwritten Constitution: The Precedents and Principles We Live By (23 page)

True, nothing in the written Constitution explicitly demands special protection of “houses” or “privacy,” but surely the document invites judges (and other interpreters) to attend to this explicit word and this implicit concept in pondering which unenumerated rights are properly claimed by the people. The explicit word “house” and the underlying privacy concept are also visible in the Third Amendment, which prohibits the peacetime quartering of troops in homes.
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Whether intentionally or intuitively, the justices have developed a case law of both enumerated and unenumerated rights that recognizes the special significance of houses and what happens inside them. In
Griswold
, Justice Douglas’s opinion for the Court began to move in just the right direction when he mentioned the Third and Fourth Amendments in tandem and even quoted the “house” language of both amendments. Alas, Douglas did not quite close the deal. He failed to highlight the word “house” as he should have. Nor did he clearly and carefully explain how this key word could be read to signal the special sanctity of bedrooms.
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In an earlier case involving the same Connecticut statute, Justice Harlan, writing only for himself, offered a more careful analysis. Homing in
(so to speak) on the word “house,” Harlan began by noting that “the concept of the privacy
of the home
receives explicit Constitutional protection at two places” (emphasis added). Harlan then quoted the Third and Fourth Amendments. While conceding that “this Connecticut statute does not invade the privacy of the home in the usual sense, since the invasion involved here may, and doubtless usually would, be accomplished without any physical intrusion whatever into the home,” Harlan nevertheless insisted that Connecticut had created “a crime which is grossly offensive to this privacy” of the home. As Harlan explained, “here we have not an intrusion into the home so much as on the life which characteristically has its place in the home.…[I]f the physical curtilage of the home is protected, it is surely as a result of solicitude to protect the privacies of the life within. Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life.” (Note the post-
Lochner
distinction that Harlan explicitly draws here between “mere[]… property rights” and “the privacy of the home.”)
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Building on a similar foundation, Justice Kennedy’s majority opinion in
Lawrence v. Texas
began with the special role of the home: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home.” Echoing both Douglas and Harlan, Justice Kennedy criticized sodomy laws for their “far-reaching consequences, touching upon the most private human contact, sexual behavior, and in the most private of places, the home.”
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Beyond the contraception and sodomy cases, with their repeated emphasis on homes and bedrooms, the Court has crafted a series of specific house-protective doctrines in Fourth Amendment case law regarding home arrests, home surveillance, and the “curtilage” area surrounding homes; has affirmed the right of persons at home to possess sexually explicit materials otherwise unprotected by the First Amendment; has accorded constitutional protection to parents’ basic choices about their children’s education, including home-schooling; has championed extended family members’ unenumerated rights to live together as a single household; and has upheld, in connection with the Second Amendment, the deeply rooted historical right of a homeowner to keep a gun in his home for self-protection.
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ONE PARTICULARLY VISCERAL AREA OF
modern Court case law straddles the border between property-protection in general and house-protection in particular. Textually, the Constitution’s takings clause protects all forms of property: “[N]or shall private property be taken for public use without just compensation.” But judges should be particularly vigilant in enforcing the vision of this clause when private dwellings—houses—are involved.

For example, when the government forces a property owner to sell his parcel so that the government may use it for some legitimate government purpose, how much compensation is truly “just”? Where mere investment property is concerned, judges have reason to avoid giving any special bonus or premium to the owner. To a pure investor, all property is fungible: The money received from the forced sale of one parcel can be used to purchase another parcel of equal economic value. If judges generally gave investors a bonus above fair market value in setting the rate of just compensation, clever investors would have incentives to buy up land one step ahead of the government. Rewarding such strategic behavior would serve neither efficiency nor fairness.

But the matter seems different when a homeowner is displaced from his homestead. Many Americans understandably have sentimental attachments to their houses. These are not merely fungible investments. Rather, your house is your home—the place, perhaps, where you grew up, where your children were born or your parents died, where you have loved and been loved, and where many of the other most important events in your life have occurred. Putting a fair price on such a place when the government asserts a compelling need for the property involves a very different kind of calculus. If the government ends up paying a special bonus whenever a house is taken from its owner, this result is less likely to be grossly unfair or inefficient.
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In a high-profile 2005 case,
Kelo v. City of New London
, homeowner Susette Kelo argued that government had no right to take her home and lot—even though the city stood ready to pay “just compensation”—because, she claimed, the taking was not for a proper “public use.” The government planned to use her lot by transferring it to a private real-estate developer as part of a general neighborhood redevelopment project that would, the
city hoped, shore up the local tax base. The Supreme Court sided with the city and held that this proposed use was every bit as legitimate as if New London had planned to use Susette Kelo’s lot as part of a public park. The Court’s decision outraged grassroots activists and property-rights advocates across America, and many states and localities responded with new legislation narrowing or prohibiting the use of eminent domain in situations involving private redevelopment projects.

It is doubtful that
Kelo
would have provoked the same populist backlash had the case involved the taking of a piece of commercial property from an absentee investor. Thus, perhaps the deepest issue on the facts of
Kelo
was not how best to parse the phrase “public use” in the takings clause, but instead how homeowners deserve to be treated under the written and unwritten Constitution. In particular, a homeowner’s emotional attachment to her home merits special respect, either in the compensation formula or in some other appropriate way.
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It matters less what specific formula judges use to vindicate the notion that forced sales of homes are matters of special sensitivity—whether the judiciary crafts a particular doctrine for homes under the law of Fifth Amendment just compensation; or instead insists upon heightened Fourth Amendment protocols when government tries to “seize” a “house”; or alternatively affirms an unenumerated right to special consideration whenever one’s home is invaded or expropriated. What matters more is that faithful interpreters of the Constitution heed America’s lived Constitution, both in construing the meaning of enumerated rights and in pondering possible unenumerated rights.

HONORING AMERICA
’
S LIVED CONSTITUTION
requires careful counting: We must accurately assess the daily reality of rights. But how should faithful interpreters count? How many people must “live” a right for it to cross the constitutional threshold? And if the policies of, say, Wyoming and California differ dramatically on a rights-related issue, should the norms and practices of Wyoming’s half-million inhabitants be given the same weight, Senate-style, as those of California’s nearly 38 million residents? Or should a proper tally reflect the population differential, House-style?

Although these questions are implicated whenever courts seek to tally up actual laws and customs, the justices have not always devoted careful attention to technical issues of counting methodology. One corner of constitutional law where counting questions have pointedly arisen, and have generated explicit judicial commentary, involves the Eighth Amendment, which prohibits, among other things, “cruel and unusual punishments.” Along with virtually all other provisions of the Bill of Rights, this punishment rule now fully applies against state governments thanks to the Fourteenth Amendment.

Although modern justices have splintered on various Eighth Amendment counting questions, the best approach here—as elsewhere—is one in which the written Constitution’s words are taken seriously even as these words are properly supplemented by unwritten practices. Thus, “unusual” should mean what it says. If 240 million modern Americans live in states that flatly prohibit punishment X, while only 60 million live in states that vigorously practice punishment X, then X is “unusual” in the ordinary everyday meaning of that word. This is true regardless of state lines—true whether the 60 million live in the two most populous states or the 26 least populous states. Citizens, not states, should count equally in interpreting both the Eighth Amendment word “unusual” and modern America’s lived Constitution more generally.
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The historical evolution of the Eighth Amendment confirms this plain-meaning approach to the word
unusual
, a word whose significance has varied across time and space. The Founders borrowed the phrase “cruel and unusual” from the celebrated English Bill of Rights of 1689. In England, the phrase aimed chiefly to prevent bloodthirsty judges from inflicting savage penalties that were legislatively unauthorized—that is, “unusual.” If Parliament had previously approved a given punishment for a given crime, that punishment, even if unspeakably inhumane, was not “unusual” within the meaning of the 1689 declaration.
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Of course, in England, Parliament was sovereign. It thus made perfect sense that bills enacted by Parliament restricted not Parliament itself but the king’s men—including judges, who in the 1680s still answered to the crown. The American Bill of Rights, by contrast, emerged a century later in an effort by the sovereign people to limit all federal servants, including Congress. In this new context, the Eighth Amendment punishment clause
had some bite against Congress—but not much. So long as Congress routinely authorized a particular punishment that was also widely used by various states, it would be hard to say that the punishment, even if concededly cruel, was “cruel
and unusual
.”

Here, as elsewhere, the meaning of the Bill of Rights shifted when its words and principles were refracted through the prism of the later Fourteenth Amendment. Section 1 of that amendment—featuring our old friend, the privileges-or-immunities clause—took special aim at the abusive practices of state governments of the Deep South, a region that had lagged behind national norms of liberty and equality. Even if a state legislature consistently authorized a given punishment, that consistency hardly made the practice “usual” when judged by the
national
baseline envisioned by the Fourteenth Amendment. Thus, a clause that originated in 1689 England as a limit on (crown) judges vis-à-vis (parliamentary) legislators morphed in 1868 America into a clause empowering (federal) judges vis-à-vis (state) legislators—and also vis-à-vis federal legislators if Congress ever tried to enact harsh punishments contrary to the broad consensus of state practice.

But how, exactly, should a proper national baseline be constructed against which the policies of any given state must be measured? In a notable 2002 death-penalty case,
Atkins v. Virginia
, Justice Scalia insisted in dissent that judges trying to construct a baseline had to count each state equally regardless of state population. According to Scalia, any survey of actual state practice that gave California more weight than Wyoming, simply because California has far more people and far more punishment cases, would be “quite absurd.” What should matter is “a consensus of the sovereign States that form the Union, not a nose count of Americans for and against.”
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Justice Scalia somehow missed the fact that the case that was before him when he wrote these words was a
Fourteenth Amendment
case—a case about whether Virginia’s specific death-penalty rules violated the Reconstruction Amendment’s vision of basic rights. (Indeed, almost all “cruel and unusual punishment” cases that arise today are, strictly speaking, Fourteenth Amendment cases.) The enactors of the Fourteenth Amendment surely believed that congressional legislation would provide important evidence of proper national norms and baselines. But on Scalia’s logic, such
legislation cannot count because it emerges from a process in which California does weigh more than Wyoming in both the House and the presidency—two of the three bodies involved in ordinary lawmaking.

Contrary to Scalia’s principles, the modern Court has paid special heed to congressional legislation in measuring state penal practices. In addition, it has counted punishment practices in the national capital, which Scalia’s approach, with its strict emphasis on “sovereign States,” would presumably brush aside as constitutionally irrelevant. Although modern case law has not always openly paid more attention to more populous states, the justices in future cases should do precisely this in order to maximize expositional clarity and optimize the soundness of the Court’s rulings. In this quadrant of case law, judges should seek to discover and channel the collective wisdom of the American people; and on certain questions, the wisest way to tap that wisdom is to survey all Americans and weight each equally.
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