Scrutiny Land

Michigan Law Review

Volumn 106, Issue 8, 2008, Pages 1479-1500

  Barnett, Randy E ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CANNABINOID;

ARTICLE; ASSISTED SUICIDE; CIVIL RIGHTS; HUMAN; JURISPRUDENCE; LEGAL ASPECT; PERSONAL AUTONOMY; PRIVACY; RIGHT TO DIE; UNITED STATES;

CANNABINOIDS; CIVIL RIGHTS; HUMANS; PERSONAL AUTONOMY; PRIVACY; RIGHT TO DIE; SUICIDE, ASSISTED; SUPREME COURT DECISIONS; UNITED STATES;

EID: 46649093171     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (106)

1. Gonzales v. Raich, 545 U.S. 1, 5 (2005) (quoting U.S. CONST., art. I, § 8, cl. 3).
2. Raich v. Gonzales, No. 03-15481, 2007 WL 754759 (9th Cir. Mar. 14, 2007). In rejecting this claim, the Ninth Circuit held out some hope that, if criminally prosecuted, Angel qualified for the defense of "necessity." Id. at *7.
3. According to the necessity doctrine, a person may not be punished for preserving her life when she is forced to chose between her life and disobeying a criminal law. Id.
4. Though not entitling Angel to an injunction against the CSA, the Court strongly indicated she could assert a necessity defense to any future federal criminal prosecution. Id. The Ninth Circuit thereby offered a potential lifeline to other criminal defendants who can prove that they, like Angel, have no other choice but to use cannabis to save their lives.
5. 282 U.S. 251 (1931).
6. Id. at 257-58.
7. Id. at 258 (footnote omitted).
8. James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 17 (1893).
9. Id. at 144.
10. Walton H. Hamilton, The Jurist's Art, 31 COLUM. L. REV. 1073, 1074-75 (1931) (footnotes omitted).
11. Ironically, the Brandeis Brief to which Hamilton refers was innovated by attorney Brandeis to satisfy the scrutiny employed by the Progressive Era Court and is still hailed today as having provided a much-needed injection of "realism" into the judicial system in place of its traditional reliance on more "formalist" methods of legal reasoning. See, e.g., Michael Rustad & Thomas H. Koenig, The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 N.C. L. REV. 91, 106 (1993) ("|T]he [Brandeis] brief was a brilliant break with the formalist tradition and had a significant impact on legal thought."). Yet the presumption adopted by Justice Brandeis replaced, reliance on such data with a formal presumption in favor of the statute, suggesting that Brandeis's commitment to realism was driven by the results he was seeking rather than by any overarching methodological principle.
12. That the Progressive Era Court's across-the-board protection of liberty was eroded starting well before the New Deal and extending until the 1940s, rather than by a sharp political "switch" in 1937, is the thesis of BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998). Cushman's influential book has single-handedly altered the conventional wisdom among constitutional scholars about the supposed switch in 1937.
13. 198 U.S. 45 (1905).
14. This is less surprising when one considers that Hoover, though a Republican, was also an avid political progressive. See generally JOAN HOFF WILSON, HERBERT HOOVER: FORGOTTEN PROGRESSIVE (Oscar Handlin ed., 1975) (describing Hoover's progressive politics).
15. 304 U.S. 144 (1938).
16. Id. at 152 ("[T]he existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.").
17. Id. at 152 n.4.
18. Of course, footnote four also identifies two other circumstances in which there may be a narrower scope for the presumption of constitutionality: when legislation adversely affects the "political processes which can ordinarily be expected to bring about repeal of undesirable legislation" and legislation that is the product of "prejudice against discrete and insular minorities." Id. at 152-153 n.4. But I am concerned here with the constitutional protection of individual liberties, which is the subject of the first paragraph of footnote four.
19. As I have explained elsewhere, this doctrine seems obviously to contradict the Ninth Amendment's injunction that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. CONST, amend. IX. Elevating some rights to be protected solely because they were enumerated, while denying or disparaging others solely because they were not, is a direct violation of the injunction of the Ninth Amendment. See Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 TEX. L. REV. 1 (2006). When confronted with a Ninth Amendment challenge, the New Deal Court had to distort the text - running it together with the Tenth - and ignore its origin to dismiss it. See United Pub. Workers v. Mitchell, 330 U.S. 75, 96 (1947) ("[W]hen objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.").
20. 301 U.S. 1 (1937).
21. 312 U.S. 100 (1941).
22. 317 U.S. 111 (1942).
23. Carolene Products, 394 U.S. at 152 (emphasis added). Later in his opinion, Justice Stone expanded on how the presumption of constitutionality may be rebutted: Where the existence of a rational basis for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be made the subject of judicial inquiry, and the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist. Similarly we recognize that the constitutionality of a statute, valid on its face, may be assailed by proof of facts tending to show that the statute as applied to a particular article is without support in reason because the article, although within the prohibited class, is so different from others of the class as to be without the reason for the prohibition, though the effect of such proof depends on the relevant circumstances of each case, as for example the administrative difficulty of excluding the article from, the regulated class. Id. at 153-54 (citations omitted).
24. 348 U.S. 483 (1955).
25. The panel included Judge Alfred P. Murrah, the namesake of the federal building in Oklahoma City that was destroyed by a truck, bomb in 1995.
26. Lee Optical of Okla., Inc. v. Williamson, 120 F. Supp. 128, 132 (W.D. Okla. 1954).
27. Id. at 143.
28. Williamson, 348 U.S. at 487-88. As Justice Douglas explained: The legislature might have concluded that the frequency of occasions when a prescription is necessary was sufficient to justify this regulation of the fitting of eyeglasses. Likewise, when it is necessary to duplicate a lens, a written prescription may or may not be necessary. But the legislature might have concluded that one was needed often enough to require one in every case. Or the legislature may have concluded that eye examinations were so critical, not only for correction of vision but also for detection of latent ailments or diseases, that every change in frames and every duplication of a lens should be accompanied by a prescription from a medical expert. To be sure, the present law does not require a new examination of the eyes every time the frames are changed or the lenses duplicated. For if the old prescription is on file with the optician, he can go ahead and make the new fitting or duplicate the lenses. But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. Id. (emphases added).
29. That the constitutional transformation before and during the New Deal was a revolution rather than a restoration has been shown by Bruce Ackerman and Howard Gillman. See 1 BRUCE ACKERMAN, We the People: FOUNDATIONS (1991);
30. HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993).
31. 381 U.S. 479 (1965).
32. Id. at 484.
33. Id. at 481-82 (citation omitted).
34. Id. at 484.
35. The term "fundamental rights" can be used either of two ways. A fundamental right may be simply any unenumerated right that gets one to Scrutiny Land. Alternatively, a fundamental right is either an enumerated right or an unenumerated right that shifts the presumption of constitutionality and gets a claimant to Scrutiny Land. The choice between these two usages is entirely semantic. Both require that the Court distinguish those unenumerated rights that are "fundamental" and get one to Scrutiny Land from "liberty interests" that do not.
36. See, e.g., Haw. Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (interpreting "public use" to mean "public purpose"); Kelo v. City of New London, 545 U.S. 469 (2005) (same).
37. Central Hudson Gas & Elec. v. Pub. Serv. Comm'n, 447 U.S. 557, 589 (1980) (Rehnquist, J., dissenting) (citation omitted).
38. But see Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) (affirming that the right to keep and bear arms is a personal and individual right); United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) (same).
39. 410 U.S. 113 (1973).
40. While Justice Blackmun's opinion seemed to equivocate on this in places, it was unambiguous by the end. Compare id. at 153 ("This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."), with id. at 164 ("A state criminal abortion statute of the current Texas type ... is violative of the Due Process Clause of the Fourteenth Amendment.").
41. See, e.g., Raoul Berger, The Ninth Amendment as Perceived by Randy Barnett, 88 NW. U. L. REV. 1508, 1517-18 (1994) (arguing that the judicial protection of rights is properly limited to those expressly stipulated in the Bill of Rights).
42. The ongoing disparagement of the so-called incorporation doctrine of the Fourteenth Amendment that began as early as 1949 indicates a discomfort even with the first paragraph of footnote four, at least as it applies to states. See, e.g., Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? - The Original Understanding, 2 STAN. L. REV. 5 (1949).
43. 521 U.S. 702 (1997).
44. Id. at 720-21. (citations and internal quotation marks omitted).
45. Id. (citations and internal quotation marks omitted).
46. 478 U.S. 186, 191-92 (1986) (citations omitted).
47. See Lawrence v. Texas, 539 U.S. 558 (2003).
48. Bowers, 478 U.S. at 190.
49. Id. at 199 (Blackmun, J., dissenting).
50. In its opinion, the Ninth Circuit evaluates Angel's assertion in her brief of a right to " 'mak[e] life-shaping medical decisions that are necessary to preserve the integrity of her body, avoid intolerable physical pain, and preserve her life.'" Raich v. Gonzales, No. 03-15481, 2007 WL 754759, at *10 (9th Cir. Mar. 14, 2007) (quoting Appellants' Opening Brief at 11, Raich, 2007 WL 754759 (No. 03-15481), available at http://www.angeljustice.org/downloads/RemandRaichvGonzalesOpeningBrief.pdf). This formulation of the right was broad enough to encompass co-plaintiff Diane Monson, whose back pain and spasms were not life-threatening, and who withdrew from the lawsuit shortly before briefing was complete. See id. at *4. With Diane no longer in the case, the right asserted in oral argument was Angel's right to preserve her life.
51. See Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531(a) (Supp. III 2003), which reads as follows: Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. Id.
52. See Supplemental Brief for the Appellees at 15, 20, Raich, 2007 WL 754759 (No. 03-15481), available at http://www.angeljustice.org/ downloads/RemandGovernmentsSupplementalBrief.pdf (characterizing plaintiff's claim as "a fundamental right to obtain and use marijuana").
53. See Raich, 2007 WL 754759, at *14 ("Raich's careful statement does not narrowly and accurately reflect the right that she seeks to vindicate. Conspicuously missing from Raich's asserted fundamental right is its centerpiece: that she seeks the right to use marijuana to preserve bodily integrity, avoid pain, and preserve her life.").
54. Id. at *13 (emphasis added);
55. see also id. at *14 ("As in Glucksberg, Flores, and Cruzan, the right must be carefully stated and narrowly identified before the ensuing analysis can proceed." (emphasis added)).
56. Washington v. Glucksberg, 521 U.S. 701, 721 (1997) (emphasis added) (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). Neither did the other two cases cited by the Ninth Circuit in Raich require a narrow definition: instead, Flores noted that " '[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.' " 507 U.S. at 302 (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)). Curiously, the Ninth Circuit quoted both Glucksberg and Flores, referring respectively to "'careful description,' " Raich, 2007 WL 754759, at *8 (quoting Glucksberg, 521 U.S. at 721), and "'utmost care,'" Raich, 2007 WL 754759, at *9 (quoting Flores, 507 U.S. at 302), while interpreting both to mean narrow description.
57. 491 U.S. 110 (1989).
58. Id. at 122-24 (plurality opinion).
59. Id. at 127-28 n.6.
60. Although the rest of Justice Scalia's opinion was joined by three other Justices, this footnote was joined only by Chief Justice Rehnquist. Id. at 113.
61. Id. at 128 n.6.
62. Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057, 1067 (1990).
63. Id. at 1061.
64. Id. at 1088.
65. Id. at 1087 ("[T]he law has never given its blessing to behavior simply because it is 'traditional.' If tradition sufficed, then the law would readily protect homosexuality, non-nuclear family arrangements, and any number of other behaviors that are widely practiced and longstanding.").
66. Id.
67. Id. at 1090.
68. Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989).
69. Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)). In his actual formulation the order is reversed, but this seems to be the order in which these Two-Steps must be conducted. How else can one look to see whether a right is deeply rooted in the nation's tradition without first defining it carefully?
70. 505 U.S. 833 (1992).
71. See Linda Greenhouse, Adjudging a Moral Harm to Women From Abortions, THE NEW YORK. TIMES, Apr. 20, 2007, at A18 (identifying the discussion of liberty in Casey as the "portion of the opinion usually attributed to Justice Kennedy.").
72. Id. at 848.
73. 539 U.S. 558 (2003).
74. Id. at 567.
75. Id. at 562 (emphasis added).
76. See, e.g., id. at 564 ("We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution."). "There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier [Progressiveera] cases...." Id.
77. Id. at 586 (Scalia, J., dissenting) (citations omitted).
78. 517 U.S. 620 (1996).
79. Lawrence, 539 U.S. at 574 (quoting Romer, 517 U.S. at 634).
80. Id. at 586 (Scalia, J., dissenting).
81. Id. at 577-78 (majority opinion).
82. Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting).
83. See Brief of the Institute for Justice as Amicus Curiae in Support of Petitioners at 1, Lawrence v. Texas, 539 U.S. 558 (Jan. 16, 2003) (No. 02-102) ("Texas asserts that it may criminalize a noncommercial, nonpublic, non-harmful activity between consenting adults in the privacy of their home for the sole reason that it believes that activity immoral. This brief asserts that Texas' statute exceeds the police power.").
84. See Brian Hawkins, Note, The Glucksberg Renaissance: Substantive Due Process since Lawrence v. Texas, 105 MICH. L. REV. 409, 431 (2006). But see Reliable Consultants, Inc. v. Earle, No. 06-51067, 2008 WL 383034, at *2 (5th Cir. Feb. 12, 2008) (holding a state ban on the commercial sale of sex toys unconstitutional "[b]ecause the asserted governmental interests for the law do not meet the applicable constitutional standard announced in Lawrence v. Texas").
85. Curiously, in his dissenting opinion in Lawrence, Justice Scalia asserts that "liberty interests unsupported by history and tradition, though not deserving of 'heightened scrutiny,' are still protected from state laws that are not rationally related to any legitimate state interest." Lawrence, 539 U.S. at 593 n.3 (Scalia, J., dissenting). For this proposition he relies upon Glucksberg and cites the page where the following much less rights-affirming passage appears: "[B]y establishing a threshold requirement - that a challenged state action implicate a fundamental right - before requiring more than a reasonable relation to a legitimate state interest to justify the action, [fundamental rights jurisprudence] avoids the need for complex balancing of competing interests in every case." Washington v. Glucksberg, 521 U.S. 702, 722 (1997). It is doubtful that Justice Scalia meant to suggest that the rational relation test has more bite than he knows it has; indeed in Lawrence itself he protests giving it any bite at all.
86. Tribe & Dorf, supra note 54, at 1093.
87. See Barnett, supra note 15, at 1.
88. See id. at 80;
89. see also Randy E. Barnett, The People or the State?: Chisholm v. Georgia and Popular Sovereignty, 93 VA. L. REV. 1729, 1748-55 (2007) (discussing why the protection of "other rights retained by the people" extends beyond the rejection of one particular construction of the Constitution based on the existence of enumerated rights).
90. See supra note 15.
91. 530 U.S. 57 (2000).
92. See, e.g., Printz v. United States, 521 U.S. 898, 919, 923 (1997).
93. Troxel, 530 U.S. at 91 (Scalia, J., dissenting).
94. Id.
95. Id. at 92.
96. Id.
97. See Randy E. Barnett, Constitutional Clichés: Does Trite Make Right?, 36 CAP. U. L. REV. (forthcoming 2008) (discussing the tendency to use various catch phrases to convert matters of substance into issues concerning judicial role).
98. See Barnett, supra note 15;
99. see also Randy E. Barnett, Kurt Lash's Majoritarian Difficulty, 60 STAN. L. REV. (forthcoming 2008) (discussing the fundamental problems with a majoritarian reading of the rights retained by the people).
100. See Randy E. Barnett, The Proper Scope of the Police Power, 79 NOTRE DAME L. REV. 429 (2004). The next three paragraphs summarize this analysis.
101. The Privileges or Immunities Clause declares that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." U.S. CONST. amend. XIV, § 1.
102. Lawrence v. Texas, 539 U.S. 558, 592 (2002) (Scalia, J., dissenting) (citations omitted) (quoting U.S. CONST, amend. XIV, § 1). Of course, taken seriously, the final sentence in this passage would also prohibit courts from striking down state laws under the Due Process Clause of the Fourteenth Amendment when they violate enumerated rights. Any resistance by Justice Scalia to this implication of adopting a purely "procedural" conception of due process would have to be based on precedent, or simply on its objectionable consequences, rather than on original meaning. See generally Randy E. Barnett, Scalia's Infidelity: A Critique of "Faint-Hearted" Originalism, 75 U. CIN. L. REV. 7 (2006) (describing how Justice Scalia justifies overriding original meaning with precedent or objectionable consequences).
103. A serious problem with modern "substantive" due process doctrine - that partially compensates for the wrongful redaction of the Privileges or Immunities Clause of the Fourteenth Amendment by the Supreme Court in The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) - is that it invites this sort of overstatement. While literally true of the original meaning of the Due Process Clause, it is false with respect to the original meaning of the Constitution as a whole. See RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 192-208 (2004) (discussing the Supreme Court's substitution of substantive due process for the Privileges or Immunities Clause).
104. I discuss this implication of the Ninth Amendment in Barnett, supra note 80.
105. See, e.g., Buckley v. Valeo, 424 U.S. 1, 16, 75 (1976) (per curiam) (applying "exacting scrutiny" and a "strict standard of scrutiny" to, and in large part upholding, regulations of political speech and association); McConnell v. Fed. Election Comm'n, 540 U.S. 93 (2003) (following Buckley);
106. Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793 (2006).