Supremely Awful Arguments: Constitutional Nonsense (Part 2)

It's not mentioned in the Constitution

(A delay in getting to this one. But, come on: the Saratoga meet!
The Whitney, the Jim Dandy, the Alabama, the Travers, the Woodward, plus, plus, plus.)

So, "It's not mentioned in the Constitution."
Another one we hear all the time.

This one may even be worse than "Leave it to the states" or "to the people." (See Part 1.)
At least those arguments appeal to sentiments of federalism and democracy.
"It's not mentioned" simply appeals to ignorance.
Ignorance about the Constitution itself. About the Bill of Rights. About the very notion of free government.

We hear it whenever the Supreme Court protects a right or liberty--i.e., what the Court rules to be a right or liberty--that isn't specifically identified in the Constitution.
Those who disagree with the decision, be they talk radio hosts or "expert" commentators or Justices themselves, will parrot this one.
It's utter nonsense.

Indeed, the only virtue in this supremely awful argument is that it's bi-partisan and bi-ideological.
Conservative Republicans dredge this one up whenever an unexplicit right they don't like is protected by the Court--e.g., the right of privacy, the right to choose, Miranda warnings, etc.
And liberal Democrats resort to it when the Court protects some unspecified right that they disfavor--e.g., campaign spending, business freedoms, individual gun rights unconnected to state militias, etc.

But whenever the argument is raised, and whoever raises it, it's utter nonsense.

Let's consider the recent Obergefell v. Hodges decision recognizing the equal right of same-sex couples to marry.

"The right to same-sex marriage is not mentioned in the Constitution."
That's what we've heard from those who disagree with the decision, including some of the dissenting Justices.
The correct response to them should be, "Yes, and therefore what?"

The right to marry, itself, isn't mentioned--opposite or same sex.
The right to choose who to marry is not mentioned--opposite or same sex.
The right of a married couple to have sex is not mentioned.
The right of a married couple to have children is not mentioned.
The right of a married couple to raise their children--same.
The right of a married couple to seek advice about raising their children--same.
The right of a married couple, or anyone else, to have friends--same.
To join a group--same.
To have friendly gatherings--same.
Even to have family gatherings--same.
Etc., etc., etc.

Would anyone doubt that all of those are pretty basic rights?
Essential aspects to life in a free society?
Would anyone think that government in America should be permitted to deny them with impunity?
Deny them without some very very strong reason, like public health or safety or some other societal necessity?
Even though none of those rights are mentioned in the Constitution?
Even though none of them are even implied?

Well, except for the word "liberty."
That word is in the Constitution a few times.
But nothing more specific than that to refer to any of those unmentioned rights.

Benjamin Cardozo helped explain the notion of basic rights--mentioned or unmentioned--in the Supreme Court's 1937 decision in Palko v. Connecticut. His opinion is the foundational expression in American law for determining which rights are "fundamental" and, therefore, constitutionally protected from violation by any government--federal, state, or municipal.

The critical point, as Cardozo put it, is whether a claimed right is "implicit in the concept of ordered liberty." Whether a claimed right is "essential" to a free and just society.
Not whether it happens to be one of the few guarantees actually listed in the Bill of rights.

Indeed, we nearly didn't have a Bill of Rights because of fear that the "it's not listed" or "it's not mentioned" argument would be raised in the future. The Founders and Framers were worried that, by listing some rights, those freedoms that were left unspecified might later be denied.

Yes, ultimately the arguments favoring a Bill of Rights--e.g., that a partial list was better than none at all--won the day. (See e.g., Jefferson's correspondence with Madison on the subject of a "declaration of rights.")
But the fears about the "it's not mentioned" argument have become reality.
That argument is precisely the nonsense we hear regularly about rights not specified in the Bill of Rights.

But the "it's not mentioned" argument  is even worse than the foregoing suggests.
In an effort to foreclose such an argument, a provision was added to the Bill of Rights. The 9th Amendment. That addition makes clear, in no uncertain terms, that the list of rights specified in the Constitution is necessarily very limited, and that unlisted rights are not to be denied.
(9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.")

This was James Madison's attempt to put a nail in the coffin of the "it's not mentioned" argument.
It was his more delicate way of saying that that supremely awful argument is utter nonsense.

Of course, not every right that might be claimed is deserving of constitutional recognition and protection--i.e., is implicit in and essential to the American scheme of liberty.
But the fact that such a right is not "enumerat[ed] in the Constitution" is irrelevant.

Now, before concluding, let's be clear that the "it's not mentioned" argument is not the sole province of conservatives and Republicans. Liberals and Democrats resort to this utter nonsense as well.

Let's take campaign spending.
The dreaded Citizens United decision.
Right or wrong, wise or foolish, the fact that spending money on political campaigns or issues is unmentioned in the Constitution is itself irrelevant.

Yes, the 1st Amendment speaks of free "speech." And spending money on political campaigns or issues is not speech.
No, it certainly is not.
But picketing--e.g., to protest a company's low wages--is similarly not mentioned in the Constitution, nor is it exactly speech either.
Marching--e.g., against the Boy Scouts' or other private organizations' discrimination against gays and lesbians--is not mentioned and not exactly speech.
Wearing some symbol--e.g., a black armband to protest war or a red ribbon to support AIDS research--is not mentioned and not exactly speech.
Burning the American flag--for whatever reason--is not mentioned and not exactly speech.
Etc., etc., etc.

Yes, all of those activities are engaged in for the purpose of expressing support or opposition or other opinions.
But the terms "expression"and "activity"are nowhere to be found in the 1st Amendment.
It specifies only "speech."

Well, it might be asserted, but aren't all those "expressive activities" kind of part of the broad notion and purpose and principle of free speech?
Indeed!
And so is spending money to produce a political documentary--just like the one at issue in Citizens United.
And so is spending money in support of a political party or candidate.
They are ways of expressing one's views, akin to speech.

To be sure, there may be some very strong arguments for limiting such political spending.
But not because "it's not mentioned."

There are strong reasons for limiting or prohibiting some expressive activities.
For some, the reasons are clear--e.g., setting fire to property to express opposition to the owner's bigotry or to police brutality.
But the fact that picketing and marching and wearing a symbol and burning the flag--and campaign spending--do not happen to be specifically mentioned in the Constitution is a wholly illegitimate reason for rejecting a claim that they are, or ought to be, protected constitutional rights.

Regardless of the possible reasons for limiting or prohibiting certain expressive activities, the "it's not mentioned" argument is not one of them. That argument, whether applied to expressive activities or the right to privacy or any other unspecified right, is utter nonsense, devoid of historical or constitutional basis.
In fact, it's contrary to both.


Next up: a related supremely awful argument--"Textualism, literalism, or that's not exactly what it says."

Catholics, Contraceptives, and 2nd Class Religious Liberty

[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.
---Chief Justice Warren Burger, Wisconsin v. Yoder, 1973

We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law.
---Justice Antonin Scalia, Oregon v. Smith, 1990

We've been examining this issue for the last 2 posts. We discussed how the law of religious liberty has changed. How religious liberty has been demoted by the Supreme Court.

How free exercise of religion--i.e., the freedom to practice one's religion, to abide by one's religious convictions--was historically recognized as a fundamental right in this country. How it was strongly protected as such (along with free speech, free press, right to counsel in a criminal case, right to equal racial treatment, etc.) by the Court.

How government was not allowed to interfere with that right unless it had a very important reason for doing so, and had no other way to accomplish its purpose. In other words, unless the government really needed to and had no alternative.

That was basic constitutional law. Basic Supreme Court jurisprudence to protect rights considered essential to a free people. Rights that had always included religious liberty.

Along with other fundamental rights, free exercise of religion was considered "implicit in the concept of ordered liberty"--to use Justice Benjamin Cardozo's immortal phrase from his 1937 opinion for the Court in Palko v. Connecticut. Yes, one of those truly indispensable rights about which it could be said--in Cardozo's words again--"neither liberty nor justice would exist if they were sacrificed."

Yes, that is the right included in the very first clause of the very first amendment of the national charter. That's a pretty good indication of where religious freedom fits in the constitutional hierarchy. And the Supreme Court treated religious liberty accordingly--at least for a while.

(For the previous discussions, see Catholics, Contraceptives, and the (current Supreme Court's) Constitution, March 2, 2012; Catholics, Contraceptives, and the Constitution, Feb. 26, 2012.)

But then an increasingly conservative, law and order Court decided that minority religions didn't need to be accommodated. That minority religions had to tolerate government's beliefs and practices--not vice versa. That minority religions could not interfere with decisions of the majority or with other government authority--not vice versa.

That minority religions had to make exceptions to their beliefs and practices in order to obey government; government no longer had to make exceptions to its laws or rules in order to obey the Constitution's guarantee of religious freedom. Henceforth, laws and other government rules trumped the constitutional right--not vice versa.

Yes, topsy-turvy. Easier. Clearer. Tidier. More convenient. But constitutionally upside down.

Let's finish this series of posts with a look at some of the religious liberty landmarks of the Supreme Court. Specifically, let's take a look at what the Court said about free exercise of religion and about the necessary restrictions that free exercise placed on government--and NOT vice versa.

Roberts' Goat (Part 4: Patterns in Criminal Cases)

In his NATURE OF THE JUDICIAL PROCESS lectures, Benjamin Cardozo spoke of the "stream of tendencies" in a judge's decisions. Like his predecessor, Oliver Wendell Holmes, [Not too shabby a duo!] he spoke of "inarticulate" (i.e., unpoken), "unavowed," even "subconscious" views and perspectives that underlie a judge's work, keep it consistent on those bases, and form common threads.

This is what we've been looking for in these (much less elegantly stated) "Goat" series. The tendencies, unavowed views, consistencies, threads--i.e., the patterns.

So, without spending much time on the legal arguments in his dissents, let's look at the patterns in John Roberts' favored outcomes. Remember, there's almost always very good legal arguments on both sides of the cases that reach the Supreme Court. Any competent lawyer or Justice can find strong support in the text of the law or in the decisional precedents or in interpretive methodology to argue on behalf of either side of a legal controversy that's close enough and important enough to get to the highest court in the land.

So legal arguments are just as likely to be support for results already favored, as to be the actual reasons for reaching those results. This is not to suggest something necessarily illegitimate. A particular result may well be favored by a judge because of her view of the law--of the fundamental purpose or spirit of the law writ large. The legal arguments supporting that favored result may simply confirm for the judge the correctness of her views.

OK, 'nough of that. What about Chief Justice John Roberts' favored results?

Start with this quick overview:
In his 9 dissenting opinions discussed in the last few posts, Roberts sided with government over the individual in most of them. The exceptions were the 2 cases in which he sided with defendants guilty of domestic violence, and a 3d case in which he sided with the defendant who was ordered to pay restitution to his assault victim.

Well, maybe that's too quick and paints too simple and too unfair a picture. So let's look more closely. And let's look at the dissents from different angles to see what other patterns might emerge.