A Post-Roe Court Will Need More Liberals to Defend Liberty

A large conservative majority is not the best guardian of rights

America’s classical liberals and libertarians have long wished for a Supreme Court that will defend both the “privacy” rights and criminal justice protections associated with “liberal” justices and the property rights and economic freedoms associated with “conservative” justices. When forced to choose between the two, these freedom-minded voters have tended to support conservative judicial nominees.

But many of those same voters are now wondering whether that’s prudent given the court’s likely overturning of not just Roe v. Wade, but of its entire body of precedent involving women’s constitutional right to abortion. There’s no easy answer to this question, and the reason lies in the legal history of the 20th century, when the court effectively reversed its philosophical polarity and prioritized “democracy” over “liberty” as the central value of constitutional law.

Today, both “liberal” and “conservative” justices still cling to this overhauled version of the Constitution, even while making occasional defenses of freedom. The result is a twisting road of logical inconsistency, unacknowledged errors and absurdly misleading terminology. Faced with these unpredictable turns, those who value freedom may indeed have to hope that a mix of justices of different ideological backgrounds will lead in the long run to stronger legal protections for freedom. If abortion rights enjoyed protections for half a century it was in no small part due to the strong liberal presence on the court and it is no surprise that with that presence attenuated, that right is now in jeopardy.

Majoritarian Democracy Versus Individual Freedom

Perhaps the foremost concern of the Constitution's authors was avoiding the tyranny of the majority. Doing so required the creation of a checks-and-balances system that would insulate judges to some degree from majority opinion, thereby enabling them to declare laws the majority favored unenforceable if those laws transgressed constitutional boundaries.

But the Constitution did not make judges truly independent of voters; they still face a process of appointment, confirmation, and potential impeachment by elected officials. Thus, as Alexis de Tocqueville argued in Democracy in America, what really protects individual rights isn’t the courts’ counter-majoritarian power, but public mores—the people’s habits and assumptions regarding the appropriate uses of government authority. In the long run, he wrote, “The law allows the American people to do anything and everything.” The only real reason they had not already devolved into tyranny was because their mores “prevent them from imagining or forbid them to attempt” tyrannical acts.

During the 20th century, however, those mores changed drastically. Progressive intellectuals shifted the foundation of our constitutional order from liberty to “democracy”—a term vague enough to cover even undemocratic institutions, such as unelected bureaucracies. Where America’s founders thought that individuals have rights and create government to protect those rights, progressives argued that democracy was the basic source of political legitimacy and individual freedom, meaning courts should either defer to legislative decisions or find ways to help implement the majority’s will. The crucial constitutional principle, wrote Justice Oliver Wendell Holmes in 1905, is “the right of a majority to embody their opinions in law.” It would be perverse, he thought, “to prevent the natural outcome of a dominant opinion” except under extremely rare circumstances.

‘Fundamental’ and ‘Nonfundamental’ Rights

The transition Holmes and his contemporaries sought was finalized during 1930s, when a series of Supreme Court decisions wrote it into constitutional law, and both major political parties abandoned the classical liberalism of the founding to embrace the idea that government should be free to sculpt society however voters wanted.

Crucial to that change was the division of individual freedom into “fundamental” rights, which the court promised to zealously defend against intrusion, and “nonfundamental” rights, which it would leave unprotected except in rare circumstances. The rationale was that “fundamental” rights serve “democratic” goals: Free speech, for example, fosters debate and therefore deserves greater protection, whereas “nonfundamental” rights, such as property, are “merely” economic and must yield to majority rule.

This separation of rights persists today. It means that if government restricts, for example, your right to vote—considered a “fundamental” right—courts will presume this unconstitutional and require government lawyers to meet an exceptionally high burden of proof to justify it. But if government bulldozes your home or requires you to design it in Tudor style instead of Craftsman, those restrictions are presumptively valid, and you must “negative [i.e., disprove] every conceivable basis” for the government’s actions before a court can rule in your favor, because property is a “nonfundamental” right.

This was just one way that the court radically overhauled constitutional interpretation during the “New Deal” era of the 1930s and 1940s. It also reinterpreted the commerce clause, which originally gave Congress a limited authority to regulate trade across state lines, to let lawmakers dictate the terms of any transactions that in the aggregate might tend to affect the nation’s economy. It effectively erased the contracts clause, which barred states from nullifying contractual obligations, and allowed states “to adopt whatever economic policy may reasonably be deemed to promote public welfare.” It let bureaucracies like the Federal Communications Commission control vast realms of public life—even the content of radio broadcasts—as long as they did so “in the public interest.” And in the decades that followed, it declared that when government seizes land from homeowners, that decision is “well nigh conclusive.” “The day is gone,” it said in 1955, when judges would protect economic freedoms like the right to run a business.

Rights as ‘Penumbras’

The New Deal court was no more solicitous of “personal” freedoms or the rights of the accused. It allowed states to force children to salute the flag. It rejected the idea that criminal defendants have a right to a lawyer. It rejected the “exclusionary rule,” thereby permitting prosecutors to introduce evidence obtained illegally. It allowed the president to confine innocent Japanese-Americans in internment camps. Anti-sodomy laws, anti-miscegenation statutes and surveillance by the FBI and IRS went virtually unmentioned by the justices. In 1940, even progressive legal philosopher Roscoe Pound warned that “the political and juristic preaching of today leads logically to absolutism.”

This absolutist trend started to reverse in the 1940s. In West Virginia Board of Education v. Barnette in 1943, the court took the unusual step of reversing a three-year-old decision, declaring that states could not force schoolkids to pledge allegiance to the flag after all. Such compulsion was overwhelmingly popular with voters, but the court held that the Constitution places individual rights “beyond the reach of majorities and officials and … establish[es] them as legal principles to be applied by the courts.” Individual rights “may not be submitted to vote; they depend on the outcome of no elections.” In dissent, Justice Felix Frankfurter—a devoutly progressive New Dealer—complained that defending rights in this way undermined “the democratic conception of our society,” since it was up to legislatures to decide what rights people have.

And indeed, Barnette initiated a slow and partial backlash against progressivism—slow and partial because it sought to preserve legal precedents that expanded government power, while nevertheless protecting the type of personal freedoms Barnette secured. That effort reached its breakthrough in Griswold v. Connecticut in 1965, when the court found a way to have individual rights and eat them too.

Griswold said a state law barring doctors from prescribing birth control to married couples violated a “right to privacy” that is mentioned nowhere in the Constitution. If the opinion’s author, Justice William Douglas, had a libertarian streak like the founders, he might have justified his ruling using the natural rights tradition or the concept of “due process of law” that predated the Constitution. That, however, would have clashed too obviously with New Deal precedents. So he proposed a bizarre metaphor instead: “Specific guarantees in the Bill of Rights,” he wrote, “have penumbras formed by emanations from those guarantees that help give them life and substance.” In other words, because several constitutional amendments overlap in protecting private affairs, intimate privacy must be implicitly protected against certain kinds of state interference.

This “penumbra” theory enabled Douglas to protect “an intimate relation of husband and wife” while still leaving “economic problems, business affairs, [and] social conditions” at the mercy of legislators. During this period, the justices used the theory to limit government’s powers to surveil citizens, dictate how many people could live together, censor films and books, search people without warrants and, of course, ban abortions by characterizing these as “fundamental” or “personal,” rather than “economic,” matters.

These may have been good outcomes from a liberty-enhancing perspective, but the theory underlying them made no sense. It was bad enough to defend only rights that served “democracy,” but now the court was also protecting some precious rights—such as sexual privacy, religious freedom, the right to marry, the right to have children and the right not to express political opinions—that did not serve “democratic” ends, while refusing to explain why other personal freedoms, such as economic liberty and private property rights, were denied such legal protection. This incoherence left the entire concept of rights vulnerable to the accusation that the judges were just making it up.

The Borkian Backlash

In the 1970s, conservative legal scholars began arguing that these new protections for individual rights went too far. They offered an alternative approach called “originalism,” which they claimed was truer to what the founders intended than Griswold’s “penumbra” theory (later called “living constitutionalism”). Sadly, however, much of this “originalism” had less in common with James Madison than with Franklin Roosevelt.

Foremost among these thinkers was Robert Bork, a law professor and judge, who was denied a Supreme Court seat in part because of these beliefs. Yet Bork, a self-described originalist, was strangely enough no enthusiast for the views of America’s founders. He rejected the classical liberal theory of natural rights that serves as the Constitution’s foundation. He dismissed the Ninth Amendment as an incomprehensible “inkblot.” He blamed America’s moral decline on the principles of the Declaration of Independence. Above all, he opposed “judicial activism,” a synonym for courts resisting popular majorities, and argued that judicial review—the principle whereby courts can declare laws unconstitutional—should be abolished. Simply put, he was no critic of government overreach. He was a critic of modernity.

Bork’s intellectual allies, such as Justice Antonin Scalia, pressed the same case against “judicial activism,” with predictably inconsistent results. Sometimes Scalia attacked expansive government; sometimes he opposed individual rights. He pioneered important new protections against warrantless searches—even when this went beyond anything the framers imagined—while in other cases he denied that the Constitution protects, say, a parent’s right to raise her own child, a view that would have stunned the founding fathers. After denouncing the judicial theory of “substantive due process” for decades, he relied on it to uphold protection of the right to own a gun, but only because he feared that using the “privileges or immunities” clause would empower judges to protect even more individual rights. In one case, he complained that “picking and choosing among various rights” that receive constitutional protection “unquestionably involves policymaking rather than neutral legal analysis”—but he was as guilty as anyone else.

Meanwhile, “liberal” justices have struggled to maintain the distinction between “fundamental” and “nonfundamental” rights, while still protecting “penumbral” rights. They oppose the idea that corporations are protected by the First Amendment, even though corporate speech contributes importantly to democratic debate. They affirm the government’s power to confiscate property from discrete and insular minorities. In Masterpiece Cakeshop, they voted to let bureaucrats override the “fundamental” freedoms of religion and speech when a small businessman thought same-sex marriage a sin. And in the “Obamacare” case, they interpreted the commerce clause so broadly as to authorize federal control over literally every act of an individual’s life.

Yet they still invoke “privacy” rights. “We protect [individual] rights not because they contribute, in some direct and material way, to the general public welfare,” wrote “liberal” Justice Harry Blackmun, “but because they form so central a part of an individual’s life. ‘[T]he concept of privacy embodies the moral fact that a person belongs to himself and not others nor to society as a whole.’” Fair enough, but then why not “economic” freedom, too?

Today’s “liberal” judges tend to vote in lockstep more than their “conservative” colleagues, but they are otherwise alike in being fair-weather friends of freedom. Both sides prioritize democracy—including, paradoxically, the power of unelected regulatory agencies—over liberty as a core constitutional value. Both exploit the inconsistencies of precedent to pick and choose which rights to protect.

Liberty’s Second-Best Alternatives

One way to read this is that both “liberals” and “conservatives” have important contributions to make in protecting liberty. Those labeled “conservative” have typically been protective of more categories of individual rights—preserving private property, free speech, gun rights and religious liberty—while remaining willing to invalidate government racial preferences and government bureaucracy. They have also been more regardful of the autonomy of states, a principle that can help promote freedom by preventing Congress from imposing one-size-fits-all mandates on the country. “Liberals,” meanwhile, have been more concerned about the rights of the accused, the rights of personal privacy, and the rights of students and prisoners, although their conservative colleagues have often joined them in doing so.

Yet inconsistencies abound, and until the court rethinks the 1930s-era notions on which both Republicans and Democrats still rely, the best libertarians can hope for is that an evenly divided court will give at least some consideration to the whole spectrum of rights. But that means there will also be many times that crucial rights are sacrificed by a judiciary that the founders viewed as a protection against legislative overreach, but which almost a century ago effectively abandoned the intellectual tools necessary for that task. Only a revival of the philosophy of liberty that the Constitution’s authors took for granted will permanently resolve that problem.

In the meantime, given that the court will continue to apply its radically imperfect, politically manipulable legal theories, a nearly evenly split court is the second-best alternative for people concerned about liberty.

---

Copyright © The UnPopulist, 2022.

Follow The UnPopulist on: X, Threads, YouTube, TikTok, Facebook, Instagram, and Bluesky.