A Tribute to Judicial Constraint: Justice Scalia, Due Process and the Confines of Original Context and Text

Speech by Bruce Linkermann


A few weeks ago Dr Zimmermann suggested to me that I give a short speech, a sort of eulogy, to commemorate the life and legacy of Justice Scalia, but I couldn’t resist going a little further.


As we will discuss shortly, the Supreme Court decision in Obergefell v Hodges (‘Obergefell’), as in the words of Justice Thomas, is ‘largely based on a constitutional provision guaranteeing “due process” before a person is deprived of his “life, liberty, or property”’, specifically the ‘liberty’ protected by the Due Process Clause of the 14th Amendment.


As a zealous law student, searching the various online databases for articles on American constitutional law, I fortuitously found an article by Justice Antonin Scalia, titled Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws. The Tanner Lectures on Human Values.


According to Justice Scalia, ‘the good textualist is not a literalist, neither is he a nihilist. Words do have a limited range of meanings, and no interpretation that goes beyond that range is permissible’. So what according to a textualist is a permissible range of meanings for the ‘liberty’ protected by the 14th Amendment?


Historically, liberty was never intended to be a vehicle for the judicial discovery—or, better yet, judicial creation—of fundamental rights. Liberty is simply defined as Sir William Blackstone described it: ‘the power of loco-motion, of changing situation, of removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law’. And, according to Justice Thomas, ‘[t]hat definition is drawn from the historical roots of the [Due Process] Clauses and is consistent with our Constitution’s text and structure.


So setting fundamental rights aside, the Due Process Clause guarantees one thing, and one thing only, due process of law. Life, liberty and property can and has been deprived by the due process of law. America has the death penalty for heinous crimes, depriving life; property is deprived in instances of proven tortious acts; and people are incarcerated for committing proven criminal acts, depriving liberty.


But what of fundamental rights? According to the majority decision in Obergefell,


‘[t]he fundamental liberties protected by this Clause … extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs … The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution’.


So according to the majority, the liberty protected by the 14th Amendment is not the fundamental right that the Clause protects from arbitrary deprivation; rather, it is a springboard for contemporary judges to use in order to identify fundamental rights that are central to defining personal identity and beliefs. Well, is not that what the 1st Amendment protects? The right to free speech and the freedom of religion are expressly protected against federal intrusion in the 1st Amendment. One would guess that the framers of the 14th Amendment were not aware of the first ten Amendments. Why else would they have seen a need to protect rights already protected by the 1st Amendment? Well, that guess is wrong. The framers were intimately aware of the Bill of Rights and the protections it afforded. As Raoul Berger, the Charles Warren Senior Fellow in American Legal History, explained:


It was not fear of State misgovernment but distrust of the remote federal newcomer that fuelled the demand for a federal Bill of Rights which would supply the same protection against the federal government that State Constitutions already provided against the States. This was understood by the framers of the 14th Amendment, and their own attachment to State sovereignty led them to refrain from intruding beyond the ban on discrimination against blacks with respect to certain rights. All else, including suffrage, was left to the States.


What the majority in Obergefell astonishingly omits is the simple, inescapable truth that the 14th Amendment was intended to serve one purpose only: to remove all doubt over the constitutionality of the Civil Rights Act of 1866. Raoul Berger emphatically explained this fact:


The objectives of the [Civil Rights] Act were quite limited. The framers intended to confer on the freedmen the auxiliary rights that would protect their “life, liberty, and property”—no more. For the framers those words did not have the sprawling connotations later given them by the Courts but, instead, restricted aims that were expressed in the [Civil Rights] Act.


But as the Obergefell decision shows—continuing a trend that began with the Court’s decision in New York v Gitlow (‘Gitlow’)—the original context and text of the 14th Amendment is no longer of any concern to the majority of the Court. What we see is the continued growth of a specific species of substantive due process: ‘fundamental rights’ due process.


Following the Supreme Court’s volte-face from its ‘Lochner-era substantive due process jurisprudence’, the Court began to focus on ‘identifying a narrow category of liberty interests that [it] deemed sufficiently “fundamental” to warrant heightened scrutiny’. In Gitlow the Court held that freedom of speech and the freedom of the press were ‘among the fundamental personal rights and “liberties” protected by the due process clause of the 14th Amendment from impairment by the States’. From this decision many subsequent decisions have extended the fundamental personal rights and ‘liberties’ protected by the 14th Amendment: Griswold v Connecticut, discovering a fundamental right to privacy; Roe v Wade, discovering a fundamental right to abortion; and, the latest, Obergefell, discovering a fundamental right to same-sex marriage.


While these decisions appear to have no logical connection—for with what kind of accuracy can we predict the next discovery—they do, however, have one common aspect: these fundamental rights were all overlooked by the framers of the 14th Amendment. They are not to be found in the original context of the Amendment’s ratification nor are they to be found in the text of the Constitution.


As Justice Scalia wrote in his Obergefell dissent, ‘[w]hat possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes’.


The passing of Justice Scalia foreshadows, I fear, the passing of a judicial philosophy that emphasises judicial constraint. If judges are not bound by the original context and text of a written constitution, then what are they bound by? Their morality? That’s simply not good enough. Judges take an oath to uphold and protect the Constitution, not their morality.

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