Thinking About Constitutional Rights
& Teaching the Kids to Use their Imagination
Overdue greetings from Seditious Conspiracy HQ. It has been busy. In the next few days/week, I hope to get out some of the backlog: a quick recap of one of the most important Supreme Court cases you’ve never heard of; the beginning of my attempt to teach gen-z pre-law kids how to write; re-reading Brown v. Board and Loving v. Virginia; and returning to what secession conceded of Congressional power. But first, we covered Reconstruction and constitutional rights this week in my introductory course.
Here especially, the current intro-to-poli-sci textbooks’ focus on “bringing the issue to life via recent examples” really disserves students because it focuses too narrowly on abortion. Of course abortion provides a great lens for relevant debate, for putting together all we’ve learned—at the end of class. But individual rights jurisprudence doesn’t start with abortion, or even with Griswold’s early recognition of the right to privacy. If class hopes to be any more than just asking students to memorize various recognized rights, we’ve got to tell the story. And the story starts with abolition.
In crucial aspects, our constitutional rights jurisprudence begins with Congress’ attempts to delineate the contours of both free-personhood and citizenship during Reconstruction. And we had a decent start. The Civil Rights Act of 1866 extended citizenship and equal rights to contract, property, and court stuff as was enjoyed by white citizens. Even with this seemingly sparse classical-liberal list, we can see a lot of potential. Congress extends both citizenship and rights to “such citizens,” bypassing any of those horseshit potential traps about leaving Black Americans in affirmative legal limbo, or, worse, leaving (forced) emigration still on the table. The right to contract guarantees wages (at least some protection against enslavement, but see sharecropping or modern California Central Valley plantation farm labor). The right to property includes not merely ownership of the fruit of ones labor, but the right “to inherit” property. That is, for the first time, the State must, as a matter of law, recognize Black families; arguably, “as is enjoyed by white citizens” even includes the right to interracial marriage (see, e.g. Thomas Jefferson’s recognized white-passing kids). And the right to court stuff, particularly the right to testify, recognizes for the first time that Black Americans have a voice and are competent to report both injuries to themselves and the facts they have experienced.
But it wouldn’t be America if the Supreme Court didn’t put a stop to a good thing. In 1872’s Slaughterhouse Cases, the Court reaffirmed the States’ primacy in the governance of your daily life, reaffirming not just Baron v. Baltimore (argued and won by city attorney Roger B. Taney) but Dred Scott v. Sandford’s distinction between U.S. and State citizenship. Then the Hayes-Tilden Compromise put an end to Reconstruction. And the Civil Rights Cases of 1883—holding both that the 14th Amendment only covered State action, and rejecting the 13th Amendment’s application to “social” matters (Plessy would extend this to the 14th as well, even where we had State action)—would conclusively boot Congress from the business of defining your rights for nearly 60 years.
Congress would eventually get back in the business of civil rights, by way of the Commerce Clause (e.g. Civil Rights Act of 1964 and Fair Housing Act of 1968) and its Tax and Spend Power (Title IX). But the Civil Rights Cases’ “state action doctrine” has never been overruled. Thus our modern American approach to individual constitutional rights must be understood as the Supreme Court’s piecemeal and pale shadow of Congress’ long forgotten power to reconstruct the Constitution and enforce the abolition of bondage.
With that prelude, though, the modern story is relatively easy to tell. Even before Griswold, the Court undertook that piecemeal approach. In 1923’s Meyer v. Nebraska, the Court nixed the State’s attempt to prohibit a parent from passing their native language to a child. In 1925, that burgeoning right of familial privacy extended to the right to send one’s children to parochial instead of public school. Pierce v. Society of Sisters. And in 1942’s Skinner v. Oklahoma, the Court (alluding to events abroad) held that a State had to have a pretty damn good reason to sterilize someone—serial chicken theft didn’t cut it.
If the State couldn’t dictate how you must raise your kid, and couldn’t take away your capacity to have children, then neither could the State force you to have children. The only real question for the Court in Griswold was “why not.” Douglas did his “penumbras” and “emanations” thing, reasoning that the Bill of Rights framed a right to privacy of the mind (1st, 5th), body (4th, 5th), and home (3rd, 4th) which obviously covered the marital relationship. Goldberg pointed to the 9th Amendment’s reservation of individual rights, Harlan to the 14th Amendment’s liberty—each explained that we should sketch the contours of privacy/liberty in accord with the principles evidenced in our history and tradition—and Byron White just thought Connecticut’s contraceptives ban plain-old dumb. Two years later the Court recognized a right to interracial marriage, given antimiscegenation laws had only ever served racial bondage and then subordination. By 1972’s Eisenstadt v. Baird the Court extended Griswold’s marital-contraceptives right to the individual: what decision could be more important to an individual than “whether to bear or beget a child?” And Roe followed naturally the next year.
Then, things changed. In 1980, Reagan ran against abortion, won, and by 1989, new Justices O’Connor, Scalia, & Kennedy announced Court’s new approach: originalism. In Michael H. v. Gerald D., the Court rejected a biological, yet non-marital father’s claim for parental rights. Justice Scalia had scoured our history and tradition and found no prior, let alone “deeply rooted,” recognition of such a form of fatherhood (never mind that James Madison predeceased Rosalind Franklin by some 120 years). But the trend was not yet set in stone. The Court bounced between Griswold’s living tradition and Scalia’s historical practice and back several times over the next two decades. In 1997 the Court rejected a right to die, but in 2003 it recognized a right to same-sex intimacy. In 2008, Heller invented an individual right to gun ownership, citing originalism. And 2015’s Obergefell v. Hodges wielded the living tradition to recognize a right to same-sex marriage. But the 2016 election cemented originalism’s triumph. With the addition of Justices Gorsuch, Kavanaugh, and Barrett, the Court promptly reversed Roe—no state had recognized a right to abortion in 1868—and so stands the law today.
But we’re not just here to make kids memorize things; we’re here to teach them to think, and invite them to join the ongoing dialogue. So:
Three methods of discerning individual rights should be evident in the story above. History and tradition come in two broad varieties. On the liberal end we have Douglas, Harlan, and Goldberg looking to the principles animating our tradition of republican liberty. Douglas focused his analysis on the immediate consequences of those principles of privacy that made it into the Bill of Rights. Goldberg framed the venture as probing the “fundamental principles of liberty and justice” “deep[ly]-rooted” in our “traditions and conscience;” Harlan as the “basic values” “implicit in the concept of ordered liberty.” But it’s essentially the same notion of a living history and tradition.
On the reactionary end we have originalism. They still call it history and tradition, but play it out to the opposite end. Damn us to the silliest things James Madison did, lest we let the liberals recourse to the ideals he preached.
And longtime readers will recall that I set quite a bit in stock by Chief Justice Warren’s decision in Loving, that we realized just how fundamental the right to marry was by confronting how we’d deny. I call it defining by denying.
With the framework in place, we can replay different cases. How would Loving come out under an originalist lens (not good). Should that affect our view of Dobbs’ overruling Roe (probably)? Do the living tradition or equality give you a right to physician assisted suicide? How should Dobbs have come out if we took gender equality and the experience of enslaved women seriously? Isn’t this fun?
To varying degrees, each of these formulas for discerning rights can run into the same conservative criticisms: 1) what does that squishy moral take have to do with law and politics; and 2) why does the State owe you that? I’ve written quite a bit (here, here, here, and here) about why I think the democratic requirements of equality/reciprocal-consent require the state to recognize these rights. Yet I freely grant the rhetorical efficacy of the criticisms: why should the State guarantee you the pill, a pack of condoms, an abortion, or a tax break for your gay marriage? We on the left have got to find another way to think about rights that doesn’t revolve around the framing of State obligation. After this week, I think I’ve got it.
Instead of thinking about what the State owes us, we have to also ask ourselves what American citizenship will bear. In his Civil Rights Cases dissent, Justice Harlan offered two bases for Congress’s authority to prohibit racial denial of public accommodations. The first leaps off the page. American slavery as an institution rested on racial subordination; freedom under the Thirteenth Amendment demands immunity from that badge of servitude. Classic defining free-personhood by how we’ve denied it. At first glance, Harlan’s argument under the Fourteenth Amendment just repeats the same. But it doesn’t.
But what was secured to the colored citizens of the United States . . . With what rights, privileges, or immunities did this grant invest them? There is one, if there be no other—exemption from race discrimination in respect of any civil right . . . That, surely, is their constitutional privilege . . . A such must be their constitutional right . . . unless the recent amendments be splendid baubles . . . Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race . . . .
Sure, there’s equality there. But more so, Harlan says: if U.S. Citizenship tolerates discrimination on the basis of race, then U.S. Citizenship is a cheap blessing indeed. Given his repeated invocations both here and in Plessy, Harlan invites to recount the cost of American citizenship—in particular, every drop spilled by the 200,000 black men who fought to preserve the nation that had previously held them in bondage—as to ask ourselves: does the majesty of this citizenship, borne of this blood and toil, tolerate this bullshit?
Can there be a more deeply unserious intellectual venture—a greater affront to reason—than the drawing of distinctions between the human beings on the basis of melanin content? Would you tolerate for one moment being detained on account of your race by some piss-ass local cop in any nation across the globe today? Would you not whip out your passport, brandish the Secretary of State’s guarantee of your safe conduct, and threaten airstrikes should your body or your Vienna Convention rights be infringed?
With our heads not firmly screwed on straight we can see the full force of Justice Douglas decision in Griswold. Not satisfied merely to detail the entrenched tradition of privacy in our tradition and our constitutional text, he concludes:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marital relationship.
Whether you view America as the inheritance of Magna Carta, the Republic, or the Covenant on Sinai—or perhaps a little of each—what does that cherished blessing handed down through the ages entail? Does the citizenship hard won at Saratoga, Brandywine, Monmouth, and Yorktown tolerate its inheritors starving under an overpass? Does the blood let at Shiloh suffer the squalor of inner-city tenements? Shall we dishonor the boys frozen and massacred in the Ardennes by kneeling on citizens’ necks or by shooting them in the back. Did we liberate Dachau to see masked agents roam our own streets. Do we bury our boys by the tens and hundreds of thousands at Arlington so that women may bleed out in parking lots. I thought American citizenship meant something.
Read this one to the end: It starts out good but gets better. To put it slightly differently, if we want to make America great (😚), American citizenship must have its meaning restored to at least what Justice Harlan thought. History and tradition indeed.