New York University Law Review October, 2005

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      Let us start with the obvious or mundane rights that the Supreme Court has recognized over the years as implicit in the “liberty” recognized by both the Fifth and the Fourteenth Amendments. The Court has held that the protection against deprivation of “liberty” without due process has a substantive floor--a point where even the best “process” in the world would not be “due.” I am referring, of course, to the oft-criticized doctrine of “substantive due process”--a phrase that some think is oxymoronic, and others think reflects a fundamental truth about the American system of government--namely, that there are some areas that are so personal to the individual that no aspect of government can intrude into them. American constitutional law started down this path in a way that has since become disavowed, with Lochner v. New York and its decision to strike down the state's maximum-hour law in the name of the substantive right of freedom of contract. [FN63] The Court's concerns are worth recalling, because they are not entirely wrong even today:
       It must, of course, be conceded that there is a limit to the valid exercise of the police power by the State.  There is no dispute concerning this general proposition.  Otherwise the Fourteenth Amendment would have no efficacy and the legislatures of the States would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health, or the safety of the people . . . . The claim of the police power would be a mere pretext--become another and delusive name for the supreme sovereignty of the State to be exercised free from constitutional restraint. [FN64]

      This was hardly the first time in constitutional history that someone expressed concern about a doctrine that would lead to the ability of one organ of government--here the states collectively--to exercise unrestrained power.  And whatever one might think of Lochner's holding, this concern was a serious one.

      Several years later and, interestingly, before the late 1930s saw the end of Lochner-style economic substantive due process, the Court considered whether a Nebraska statute forbidding the teaching of foreign languages in any school in the state violated the Federal Constitution. [FN65] Unlike many newer constitutions in the world, the U.S. Constitution does not mention the topic of languages. [FN66] Nonetheless, the Court, over dissents from Justices Holmes and Sutherland, held that the statute was unconstitutional. In a passage that became famous more than fifty years later when the infinitely more contentious issue of abortion was before the Court, Justice McReynolds wrote the following on behalf of the majority:
       While this Court has not attempted to define with exactness the liberty thus guaranteed [by the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated.  Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. [FN67]

      The Court went on to say that, important though the state interest was in the physical, moral, and mental health of its citizens, “the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue.” [FN68]

      The Court continued with this theme a few years later in Pierce v. Society of Sisters. [FN69] This time it held unanimously that a state law requiring all children to receive their education in a public school--on pain of finding the parent or guardian guilty of a misdemeanor--was unconstitutional. It announced in rather grand language that “[t]he fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.” [FN70]
      For a variety of reasons, the theories articulated in Meyer and Pierce lay dormant for many years, until the Supreme Court turned once again to them in the group of cases that dealt with privacy rights, reproductive rights, and issues concerning the family unit starting in the 1960s. The case that has always struck me as telling in this group is not the obvious one --Roe v. Wade--but is instead Moore v. City of East Cleveland. [FN71] That case involved a city ordinance that was undoubtedly inspired by the desire of city leaders to stamp out hippie communes. To do so, the City of East Cleveland enacted an ordinance that began by limiting occupancy of a dwelling unit to members of one family, and then defined the term “family” with extraordinary parsimony. The appellant, Mrs. Inez Moore, was convicted of a misdemeanor under the ordinance and sentenced to five days in jail and fined twenty-five dollars because she had living under her roof both of her sons and their respective sons. The ordinance violation came about because the grandchildren were cousins rather than brothers. The Ohio courts rejected her constitutional challenge to the ordinance, and so the case arrived at the U.S. Supreme Court on appeal. [FN72]
      What is notable about the case is how the Justices struggled with it.  Four members of the Court, led by Justice Lewis Powell, concluded that the ordinance was unconstitutional under the line of cases including Meyer, Pierce, and many others. [FN73] Justice William Brennan, joined by Justice Thurgood Marshall, wrote separately to emphasize that the idea of the “family” is itself culturally dependent and that there were serious (and negative) racial and economic undertones in the East Cleveland ordinance. [FN74] Justice John Paul Stevens provided the crucial fifth vote to strike down the ordinance, but he saw it as an undue restriction of the property rights of the owner that was invalid under the Court's zoning jurisprudence. [FN75] Chief Justice Warren Burger dissented on the ground that there could be no constitutional violation until Mrs. Moore exhausted her local administrative remedies by seeking a variance (an odd view, given the fact that the state courts themselves did not think that such a requirement existed). [FN76] Justice Potter Stewart, joined by then-Justice William Rehnquist, saw nothing unconstitutional about the ordinance, which in his view was just one of the ways that the city was entitled to define permissible property use. [FN77] Finally, Justice White wrote a thoughtful dissent in which he tried to come to grips with the entire line of substantive due process cases. [FN78] While he was not advocating that any particular case recognizing a substantive due process right be overruled, he did stress that the Court would be well-advised “to restrict the liberties protected by the Due Process Clause to those fundamental interests ‘implicit in the concept of ordered liberty,”’ [FN79] quoting Palko v. Connecticut. [FN80] The majority might have replied that it believed that it was doing exactly that, in declaring something as elemental as the family unit to be off-limits to restrictive legislative measures. But perhaps this merely illustrates how hard it is to draw lines, and how vulnerable any such judicially drawn lines are to outside criticism.
      “Critical” is the mildest word one could choose to describe the reaction to the Supreme Court's recognition that the “liberty” clauses of the Constitution protect a private sphere surrounding intimate personal decisions such as the obtaining of contraceptives, abortion, and the choice of sexual partner without regard to criteria like race or sexual orientation. [FN81] For the sake of argument, let us assume that these questions have been resolved for now, though at least the reproductive choice right may leave the constitutional lists depending on what changes take place in the Supreme Court's membership, or it may even become constitutionalized in the opposite direction. Other freedoms may yet achieve constitutional recognition, even if we, as a society, and the Supreme Court, as the responsible institution, continue to move cautiously. It is possible, for example, that we have not heard the last word on personal autonomy over end-of-life decisions, even though the Court for now has left that delicate area to further development in the states. [FN82]
      The idea that government must refrain altogether from some takings, no matter how much compensation is offered, because they are not for a public purpose, is another perennial.  In Kelo v. City of New London, [FN83] the Court reaffirmed the principle that government may not take property solely for the purpose of conferring a private benefit on a particular private party, nor may it take property under a mere pretext of public use. [FN84] On the other hand, it adopted a broad interpretation of the term “public use,” and in so doing, it upheld the right of a city to take private property for purposes of an economic development plan, even though some of that property would wind up in private hands. [FN85] It is doubtful that this will be the last word on how to draw the line between permissible and impermissible uses of eminent domain to transfer private property to different private hands. Finally, of course, some would argue that implicit in the Second Amendment is an unqualified right to bear arms, without any necessary connection to a “Well-Regulated Militia.”
      While this brief review is hardly an exhaustive exploration of judicially elaborated constitutional provisions--both structural and individual--it suffices to illustrate the point that we are relying today on far more than the literal written Constitution in the area of individual rights.  This is not surprising, especially when we recall that the Framers (like most draftsmen) deliberately left some things unresolved, in order to obtain the consensus needed for ratification.  Moreover, we would sorely miss these constitutional elaborations, if I may call them that, if they were to be swept away with the stroke of a pen or the tap of a “delete” key. The United States has been rightfully proud of the example it has set for the world in the field of human rights, particularly since the end of World War II. It was Eleanor Roosevelt, after all, who led the successful effort for the United Nations to adopt the Universal Declaration of Human Rights. [FN86] Building from that nonbinding General Assembly resolution, many other international human rights conventions followed. Although the United States has not adhered to all of them, it has joined many of the most important ones. [FN87] Invariably, in doing so, the ratification documents have proclaimed that the obligations that the nation is undertaking are already reflected in U.S. domestic law--especially in our constitutional law. [FN88] When we take a look at those obligations, we will see that our legal recognition of many of the core human rights recognized by the international community as a whole depends critically on the judicially recognized rights we have just reviewed.
C. Individual Rights on the International Stage
      Of all these conventions, the one with the most general sweep and the one that shows most dramatically how much we depend on our evolving Constitution is the International Covenant on Civil and Political Rights.  The Covenant, which currently has 152 State Parties, [FN89] expressly recognizes the following rights: equal rights of men and women; [FN90] the “inherent right to life” and protection against arbitrary deprivation of life; [FN91] the prohibition against torture or “cruel, inhuman or degrading treatment or punishment”; [FN92] a ban on slavery; [FN93] a prohibition on arbitrary arrest or detention; [FN94] a right to travel; [FN95] procedural rights in a criminal trial, [FN96] including a right to an appeal; [FN97] a prohibition on ex post facto laws; [FN98] a right to privacy; [FN99] freedom of thought, conscience, and religion; [FN100] freedom of opinion and expression; [FN101] protection of the family; [FN102] the right of “men and women of marriageable age” to marry and found a family; [FN103] the protection of children; [FN104] the right to vote and take part in public affairs; [FN105] a broad nondiscrimination obligation; [FN106] and the right of minority groups to associate and maintain their culture and religion, and to use their own language. [FN107]
      The Declarations and Understandings of the United States quite clearly reserve the right of the United States to derogate from some of these obligations--for instance, the United States has reserved the authority (though certainly not the obligation as the Court's 2005 decision in Roper v. Simmons [FN108] has now made clear as a matter of domestic law) to impose the death penalty on a person below the age of 18--but just as clearly those Declarations and Understandings reflect the assumption that United States law already protects everything to which an express reservation was not made. [FN109] Accordingly, the United States disavowed any need to create separate private rights of action under the Convention. [FN110]
      While some have bemoaned the Declarations and Understandings because they appear to cabin the United States' commitment to the Convention, the implication that U.S. law is already doing the job should be seen in a positive light.  Nonetheless, the United States cannot support this assertion without relying on the unwritten constitutional protections we have been reviewing.  The Constitution does not explicitly mention equal rights of men and women; a right to travel; a right to be free from arbitrary interference with one's privacy, family, and home; protection of the family; the right to marry; or cultural rights of minority groups.  Yet as presently understood, U.S. law affords protection to most, if not all, of these rights as a matter of constitutional law.  For examples, one need think only of cases like United States v. Virginia, [FN111] Shapiro v. Thompson, [FN112] Moore v. City of East Cleveland, [FN113] Loving v. Virginia, [FN114] Lawrence v. Texas, [FN115] and Whalen v. Roe. [FN116] The cultural rights of minority groups often involve nothing more nor less than the right to practice a particular religion, which the First Amendment protects, or the right to speak a particular language, which Meyer addressed, or the right to follow a particular lifestyle, which Wisconsin v. Yoder [FN117] and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah [FN118] both addressed, though through a religious lens. If our understanding of our own Constitution were more cramped, we would be forced to admit that there is no secure constitutional foundation in United States law for these international human rights norms. Although one might hope that statutes could be passed that would fill the gap, there is first a question whether Section 5 of the Fourteenth Amendment would suffice as a basis for a nationally enforceable code of human rights. Recall, in this connection, the fate of the Violence Against Women Act in United States v. Morrison [FN119] and ask whether the understanding of the treaty power expressed in Missouri v. Holland [FN120] would be enough to support legislation enacting the Covenant's rights in the eyes of a strict constructionist. In addition, there is always the risk that unpopular minorities might be left behind.
Devices Used to Find Unwritten Rules
      No one in the United States thought that we had come to such a pass during the heyday of American leadership in the field of human rights, which began right after World War II and continued through at least the end of the Cold War era.  Our strong national commitment to individual rights, however, depended during that period and continues to depend on several crucial constitutional understandings that have always had their critics, and more recently have come under sharper attack. [FN121] Those understandings include the following: (1) broad language may legitimately be interpreted broadly, in a manner informed by evolving notions of a decent society; (2) as a matter of federal constitutional law, some liberties are beyond the power of any governmental entity to deny; (3) most parts of the Bill of Rights, in particular through the doctrine of selective incorporation, apply to state action as well as to federal action; (4) constitutional principles can be inferred from sources such as the structure of the overall document and preconstitutional understandings. I will elaborate on these points in order.
      First and most important is the idea that we should take seriously the fact that the text of the Constitution tends to reflect broad principles, not specific prescriptions.  Neither James Madison, for whom this lecture is named, nor any of the other Framers of the Constitution, were oblivious, careless, or otherwise unaware of the words they chose for the document and its Bill of Rights.  The papers they left behind leave no doubt that they hoped to be writing for the ages.  There is no more reason to think that they expected the world to remain static than there is to think that any of us holds a crystal ball. The only way to create a foundational document that could stand the test of time was to build in enough flexibility that later generations would be able to adapt it to their own needs and uses.
      That is exactly what the Framers did.  Rather than spelling out every last detail of the structure of government and of the way that government would relate to individual citizens, they chose to enshrine only the broadest principles in the Constitution.  Whether they were doing so for lofty reasons or, as appears to be the case in some instances, out of political expediency, hardly matters; what does matter is the language that was ultimately adopted.  One need not write in this way, of course, and we can see the alternative approach reflected in the constitutions of some states.  Perhaps the ultimate example of this is the Constitution of Texas, which today runs more than two hundred pages long, and, as of 2003, has been amended 432 times (out of a total of 606 possible amendments passed by the Texas legislature). [FN122] Had the Federal Constitution followed that model, it would undoubtedly by now contain a comparable number of amendments. It is even possible that those amendments would protect the very same individual rights that have emerged instead through constitutional interpretation. But there was no need to burden the Federal Constitution with endless amendments, because it was supple enough to accommodate this growth without them.
      The jurisprudence of the Eighth Amendment provides a good example.  The words “excessive” in the fines clause and “cruel and unusual” in the punishments clause are relative words. If one were to take the view that the only fines it prohibits are those that would have been thought excessive in 1791, [FN123] there would be no meaningful ceiling on criminal fines today. Civil punitive damages might be outside the reach of the Amendment as well, if one thought the word “fine” implies criminal enforcement. More to the point, the Amendment might as well not exist if the only punishments that were deemed to be “cruel and unusual” were the ones that an eighteenth-century audience would have abhorred. The Court in Weems v. United States [FN124] referred to Blackstone's understanding that executions of various types were permissible, but that disemboweling, drawing and quartering, and torture were not. But in Weems, the Court struck down as incompatible with the Eight Amendment the far “milder” punishment of twelve years' hard and painful labor and imprisonment for the crime of falsifying two entries in public records. Later, in Trop v. Dulles, [FN125] the Court said that it had recognized in Weems “that the words of the [Eighth] Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” [FN126]
      That is the approach that the Court has continued to take, as it has steadily narrowed the circumstances under which the death penalty may be imposed: first establishing strict procedural requirements for any sentence of death, in a quintuplet of cases decided in 1976, [FN127] then rejecting death for any crime that did not itself result in death, in Coker v. Georgia, [FN128] and still later categorically rejecting the death penalty for mentally retarded persons, in Atkins v. Georgia. [FN129] In the spring of 2005, the Court decided in Roper v. Simmons that the Eighth Amendment prohibits the death penalty for an offender who committed murder at the age of seventeen. [FN130] Just as in Atkins, the Court was closely divided. Justice Scalia, writing for himself, Chief Justice Rehnquist, and Justice Thomas, reiterated his opposition to the Trop idea that the Amendment must be understood in the light of evolving standards of decency. [FN131] Both the majority and Justice O'Connor in dissent, however, were willing to undertake an inquiry into what it means in 2005 to be “cruel and unusual.” In doing so, the majority relied on a national consensus against the death penalty for juveniles, as evidenced both by the states that have abolished the death penalty altogether and those that maintain it but exclude juveniles from its reach. [FN132] The Court also noted that the United States was “the only country in the world that continues to give official sanction to the juvenile death penalty,” [FN133] even as it carefully pointed out that this fact was “not controlling our outcome.” [FN134] In doing so, the Court appropriately chose to enrich its understanding of the issue by reviewing international practice, acknowledging implicitly that the American people are indeed part of the broader human community and at least presumptively share its core values.
      The willingness to give content to other broad terms, such as “due process,” or “equal protection of the laws,” or “liberty,” or “unreasonable,” has allowed recognition of the other core rights the Court has identified. Inferences from constitutional structure have also played their role, as in the case of the often-disputed but still-recognized constitutional right to travel. [FN135] Perhaps critics of the latter right would think better of it if they took a look at the profound restrictions on liberty that arise in countries that have denied it to their citizens, such as the former Soviet Union.
      The reason why these debates have been so contentious in the United States is, quite simply, because many of our most precious rights have achieved federal protection through the incorporation doctrine, [FN136] through the substantive component of the Fourteenth Amendment's Due Process Clause, [FN137] or through the equal protection component of the Fifth Amendment's Due Process Clause. [FN138] These were the critical constitutional moves, and each one requires a broad understanding of the words that appear on the page.
      I am willing to make that move, in spite of the fact that it carries with it a risk of error on the part of the Supreme Court--error in the sense that the Court may from time to time push out in a direction that is inconsistent with the constitutional plan, and error in the sense that the Court may be too far out of step with American society and the elected branches of government. Over the medium to long run, the Court corrects those errors, or (occasionally) the Constitution is amended. That, in my view, is the best we can do. We would not be better off with constant amendments to the Constitution, because such a process would ultimately devalue the Constitution and make it the same kind of repository of special interest rules that one can observe in all too many state constitutions. And, as I will argue in Part III, we even more clearly would not be better off with a strict constitutional reading that jettisoned all of the unwritten extrapolations that have occurred since the beginning of the Republic.

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