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June 13, 2013

Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law

By Darren Latham

Seeking better-informed constitutional discourse, this essay (i) details foundational mistakes of strict-construction in constitutional interpretation, with illustrations from abortion, health-care, gay rights, and gun rights; (ii) refutes recent challenges to the virtue of empathy and other judicial attributes; and (iii) shows why a broader interpretive method better conforms to both the rule of law and conservative values.


Despite the republic's maturity, chasms divide how differing ideological viewpoints in the United States understand our constitution's fundamentals:

Liberal Stereotype: The federal government must supervise healthcare to protect women from state legislatures that denigrate abortion rights.

"Constitutional Conservative": As the Constitution says nothing of abortion, states should  reject   Roe v. Wade . And the Constitution precludes federal healthcare mandates, despite Justice Roberts's error on Obamacare.

Liberal Stereotype: Our constitution today is more than just the document drafted in Philadelphia deemed adopted in 1788, with its amendments.

"Constitutional Conservative": That would violate the rule of law, which requires legal certainty.

Liberal Stereotype: No, the rule of law demands democracy and individual  rights, including the rights of gay Americans.

A little reflection and historical perspective resolves a lot of that gap. My "liberal" oversimplifies, but the misconceptions voiced by the "constitutional conservative" tend more to derail productive debate. Not presuming all constitutional conservatives think alike, I focus on monotextualists--those who claim a single document, alone, constitutes us. The times urge them to reconsider. The gun rights and other liberties monotextualists believe to be free, from not just federal but also state infringement, do not find protection from states' abuses in constitutional text alone.

In short, America is not constituted only by words of a 225-year-old document even the founders did not treat as exclusive.

True, we all somehow embrace it for constitutional meaning. But reflecting on how we know what constitutes our nation, the reasons for still looking to that text also direct our gaze beyond it. That is, the "1788 Constitution," as amended, has never been our full constitution--our threshold for government's legitimacy has always required more. Since independence, we have remained devoted both to the people's sovereignty and to inalienable rights. Through two centuries, the people sovereignly have endorsed a historically-developed understanding of the constitutional framework reflected in the 1788 text, an understanding abiding in precedent. What's more, as no inalienable rights--say, of privacy in spousal relations or of defending one's home--can have been alienated by failure to write them down, our constitution protects some rights beyond the amended 1788 text.

Neither legally nor politically legitimate, the persisting fiction of a single-text constitution obstructs genuine discussion, weakening the rule of law. True, we need legal clarity and predictability. But monotextualists evangelize an unattainable constitutional certitude--a mythologized fantasy that demeans the very democracy and individual rights the rule of law requires, that would violate our present constitution. Meanwhile, real contested issues languish for want of greater public notice and debate. By thus sidetracking our national discourse, strict-text zealotry undermines another rule of law value--public understanding. And misunderstanding proliferates when knowledgeable participants in public debate fail to contest such factually-bankrupt descriptions of our constitution.

Progress awaits a wider public respect for our whole constitution, blocked by two myths. The myth of law in general, "textual infallibility," mistakes that societies can draft perfect legal codes--schemes that handle all disputes with no clarifying, conflict-resolving, or gap-filling interpretation by judges. And from that fallacy monotextualists spin a second myth, "strict construction," which assumes it possible and legitimate to rely exclusively on words of constitutional texts. Overcoming those myths--admitting judges must elaborate our constitution--promises more-productive debate, focused on how best to constrain that judicial role.

For the pundits who appreciate that our full constitution is more than a narrow reading of text, yet still struggle with monotextualist claims, I offer rational and pragmatic responses: First, reason precludes a strict-text-only approach, since (I) a constitution is not just a document but a broader concept, ours including inalienable rights impervious to textual limits; (II) history shows pre-planned systems do not anticipate all legal issues, so judges must fill gaps; and (III) legal texts' inherent fallibility and original meaning's uncertainty prevent strict construction, which, even if possible, would violate inalienable rights and popular sovereignty. Moreover, a whole-constitution approach makes more practical sense, as (IV) amendment cannot eliminate need for interpretation and can undermine conservative values, while well-selected judges follow principles that limit their discretion when they provide needed interpretation; and (V) owning up to those realities still leaves much for debate, including abortion, gay rights, and federal power, but narrows the issues.

These five points also speak to conservatives recently inclined to constitutional reflection. The 2010 gun rights decision, McDonald v. Chicago, challenges monotextualist dogma about constitutional fundamentals. As the Second Amendment restricts the federal government, not the states, it did not apply to Chicago's challenged gun-control regulation. As detailed below, the Court thus exceeded limits of strict construction to find a federal right outside constitutional text alone, a right protecting gun owners from excessive state regulation. For those who hold such rights dear, realizing they depend on constitutional sources beyond text should provoke them to rethink monotextualism.  

I. Our Constitution Is a Concept that Includes Inalienable Rights

A nation is constituted by a set of ideas that define it politically and legally. That constitution is a concept, typically gray in details, not just a document that may presently express all or part of the concept. Most nations' main constitutional features do appear in one document. But the constitutional status and exclusivity of such texts remain ever subject to their current political and legal legitimacy. In 1788 we simply stopped treating our "Articles of Confederation and Perpetual Union" as a continuing authority, though that text's own terms precluded its being replaced through the 1788 Constitution's adoption process. And document titles alone do not decide. The United Kingdom is constituted without any document called "Constitution." Conversely, a nation is not simply assumed--without more evidence--to be exclusively constituted by terms of any document that bears the name "Constitution."

Habits of thought and assumptions born of media rhetoric blind many Americans to our full constitution. Most habitually just assume a certain role for the 1788 text, without further reflection. More clear-eyed scrutiny of that text's role begins with contemplating the reasons for following texts in general.

  The Authority of Constitutional Text Comes from the People, Not the Text

Justification for assigning authority to a text cannot be merely a command to follow from the text itself--not even a command from a text claiming to be religious revelation or a country's constitution. Otherwise, Christians would also follow the Koran; every religious person would follow it, the Torah, New Testament, and other religious tracts claiming self-authentication. And for a constitution, Americans might still follow our Articles of Confederation.

Hence, reasons for following a text typically lie outside the text itself. And such external reasons influence not only why we read texts but also how to read them and whether also to look to other texts or sources.

We understand how a personal faith, outside text, leads believers to find religious significance in particular texts--a faith perhaps blending internally-felt divine inspiration with trust in one's family or social group's embrace of the text, independent learning, or desire for mental peace. That faith not only determines which texts are sacred but affects the strictness with which a text is understood.

In each nation, something like a faith--a politically-conjoining, collective assent by the living citizenry--is what justifies which texts or other sources comprise the foundation of law and government, what reveals the nation's present constitution. Though vague, that collective faith provides the "standard" (rule, principle, process) by which the people recognize what constitutes their nation in a political and legal sense. The American "constitutional standard" convinces us that our constitution still includes the 1788 document. True, many Americans do not consider the reason but simply follow a parent, teacher, or pundit who calls that text "The Constitution." But even if we seldom ponder our constitutional standard, on reflection, Americans appreciate that more than an authority figure's bare assertion must justify turning to a particular document.

Though additional details of America's constitutional standard are debatable, we do agree on the principle at its core: our varying ideas of what makes law and government legitimate all concur that (i) the peoples' democratic will and (ii) the individual's inalienable rights are co-requirements for our constitution. Those two requirements make the 1788 Constitution the central component of--but not the entirety of--the American constitution today.

Parts II and III, below, elaborate historical reasons why popular sovereignty has made some precedent also part of our constitution; but the inalienability of certain rights is another, simpler reason the 1788 Constitution cannot have been exclusive, from its very inception:

  Our Inalienable Rights Are Not Limited by Text

              inalienable    Not transferable to another or capable of being repudiated.

Even "constitutional conservatives" want rights beyond text. In addition to the 1788 document, they embrace our 1776 Declaration of Independence and its principle of "[i]nalienable rights." ("Unalienable," in official Declaration copies, meant what Jefferson's draft called and we now call "inalienable.") But inalienable rights cannot have been alienated (given up, taken away) by political majorities' failure to vote them into a later document like the 1788 text or Bill of Rights. And majorities cannot be relied upon to adopt or amend constitutions to protect the very minority rights they infringe. Thus, some rights against government--constitutional rights--reside outside the 1788 Constitution's text, as the Ninth Amendment emphasizes: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

And even conservative justices embrace unenumerated rights, evident in the 2010 holding that a federal constitutional right of gun owners limited the power of states to regulate guns. Unable to rely on the "right to bear arms" protection of the Second Amendment, which limits only the federal government, McDonald's majority needed to go beyond constitutional text to find specific meaning of general text for the Fourteenth Amendment's very general limits on states.

That is, the Bill of Rights--beginning with "Congress shall make no law"--was originally intended, and has always been read, to impose restrictions only on the federal government, not states (which the Court documented in 1833). With a few exceptions, such as the prohibition of ex post facto laws, the 1788 Constitution generally did not restrict the states in dealing with their inhabitants until the post-Civil-War amendments, the Thirteenth through Fifteenth. The most-comprehensive of those, the Fourteenth Amendment, limits states in terms much less particular than the Second Amendment or most other Bill of Rights provisions. The Fourteenth Amendment expressly prohibits states' only from denying "privileges or immunities," "equal protection," or "life, liberty, or property without due process of law." Thus forced to look outside text for the specifics of what those general concepts mean, the Court's conservatives found in history and tradition a fundamental constitutional right to possess guns, a liberty states could not deny.

Accepting that some inalienable rights must be identified through sources beyond original constitutional text changes the tone of the debate, but not necessarily the outcomes--rational grounds for conservative skepticism remain:

Liberal Stereotype: Abortion restrictions violate constitutional rights.

Conservative: Granted there are some unenumerated (extra-textual) rights, but declaring a right to control procreation displays too much discretion by unaccountable judges. 

Before elaborating the debate on limits of the judicial discretion necessary to interpret out constitution (part IV), I return to and debunk what most impairs discussion of such genuine issues even starting--the two myths, textual infallibility and strict construction.

II. Transcending Textual Infallibility, the Popular Myth of Law in General

Many think that societies can craft clear, complete, and coherent legal texts--statutes, constitutions, et cetera, that anticipate all disputes without vagueness or inconsistency. That fallacy, embraced by French revolutionaries, rejects our founding principles. One aristocracy the French overthrew was judicial, and they hoped to subordinate future judges to being mere automatons under new legal codes. Our revolutionaries, instead, asserted rights of English citizens that independent judges had exercised discretion to elaborate and protect for centuries. The French, having mistaken that a new system could deprive judges of all power to "make law," failed to create such an infallible code--mirroring prior failures of such attempts, including Justinian's Sixth-Century codification of Roman law and Frederick II's 17,000-part Prussian code. Unlike the French, our founders embraced the English model, in which judges have articulated common law for nearly a millennium and for centuries have exercised interpretive discretion to resolve the limitations of legislatively codified law.

Reflective lawyers know uncertainty infects all legal systems. And legal codes falter for many reasons, including the limits of language; complexity of societies and human interactions; difficulty of foreseeing disputes within complex societies; legislators' disagreement on how even foreseen issues should resolve; and lawmakers' failure to understand and translate their intent on issues into effective codes. History disproved the ideal of a system that requires no future judicial elaboration, and the common law avoided the codification fetish of civil law countries (most of the world). So the genius of the American legal tradition springs not only from an innovative constitutional text but also from continuing the common-law method and the independent role of judges applying it.

That inherent need for legal texts to be interpreted displays throughout our 1788 Constitution. The words "due process" alone never prescribe what a hearing requires. "Equal protection" did not decide segregation cases. Nor does "freedom of speech" tell when one may shout "fire." And "regulate Commerce . . . among the several states" does not specify Congress's power with any precision. Generations ago, the Court held that imposing labor standards on local manufacturing that affected the national economy fell within that power. And similar precedent established a scope of commerce power that, if closely followed, would cover the Affordable Care Act.

Hard cases cannot be decided by "applying the Constitution as written." Rather, they trigger the question of proper sources to remedy textual shortcomings--should it be: outside evidence of original "public meaning" of the text or of its ratifiers' intent? precedent? tradition? ideas implied in the text? social facts? Where, not whether, to look beyond text is the issue. Even liberal justices start interpretation with text; but no justice ends there except in trivial cases.

III. The Myth of Strict Construction; the Real Constitutional Status of Precedent

[S] trict constructionism [is] a degraded form of textualism that brings the whole philosophy into disrepute. Justice Antonin Scalia

Fantasy that "strict construction" can decide cases ignores reality of constitutional adjudication. To some, "strict construction" signifies that rigid focus on only text shown above to be neither possible nor legitimate. Others mean strict originalism, using only the "original meaning" of that text. But that view also fails, as such meaning rarely is clear and lacks legitimate basis for exclusive use.

Original meaning seldom is certain. Most words have multiple meanings or shades of meaning always in transition; and the founders chose general over specific terms for much of the 1788 text. Some originalists look to historical word-usage--newspapers, speeches, books--seeking "original public meaning." Others imagine a specific intent shared by a thousand representatives voting across state ratifying conventions. Both approaches leave most disputed questions of interpretation unsettled.

Not only does strict originalism falter on semantic uncertainty, but it violates the rule of law requirement of a present legitimate basis for government power. Allowing a 225-year-old text to define power over 315 million must meet today's legitimacy test, our constitutional standard. The status of such text in our constitution must both (i) reflect the present citizenry's will and (ii) respect inalienable rights. A strict originalist use of that text does neither: part I described why such a reading cannot fully respect inalienable rights; this part explains its conflict with sovereignty. 

  Strict Originalism's Conflict with Our Sovereignty

Strict originalism violates sovereignty's mandate that today's people are the ones whose assent to government matters. Since the Civil War, we have continually assumed assent. In a perpetual state of implied consensus, we act as though a big-enough proportion of us concurs on some core notion of the present scope of federal power and means for change. The fact that our assent is only implicit does raise a complex question of what the people now take to be constitutionally entrenched. And a precise answer ever eludes us since (i) while at least a majority seems necessary, it is debatable how large a supermajority must agree for constitution making; (ii) we dispute the criteria (e.g., age, good conduct, citizenship) for who comprises the group whose constitutional assent matters; (iii) we cannot, day-to-day, draw a complete, direct response to questions of constitutional foundations from a continually regenerating population of over 300 million; and (iv) we disagree over exactly what should be taken to be accepted by implication of past and present events, in the absence of such daily constitutional votes.

Despite those inherent uncertainties, history does make clear a core implication of our popular sovereignty: the accepted constitutional regime includes more than a narrow, originalist reading of the amended 1788 text. That is, the popular will component of our constitutional standard recognizes some precedent as part of today's constitution. Too much interpretation has been followed with too much reliance and impact for too many generations without any corrective amendment; too much of the long-accepted scope of federal and state power stands on court and practical precedent.

  Our Constitution's Precedential Heritage

That constitutionally-entrenched precedent includes our embracing the 1788 Constitution itself despite its inception violating the Articles; the courts' power to decide legislation's constitutionality; the Louisiana Purchase, which Jefferson thought beyond a narrow reading of textual authority; McCulloch v. Maryland's 1819 approval of federal banks, based only on implications of finance-related powers expressed in the 1788 text (and reading the Necessary and Proper Clause to authorize laws "conducive" to such specific powers); McCulloch's denying state power to tax the bank because text made federal law "supreme"; and the Civil War Amendments (Thirteenth to Fifteenth, primarily abolishing slavery, clarifying citizenship, protecting equality and due process rights against infringement by states, and banning racial voting bars), whose validity we accept today despite Southern states arguably being coerced to adopt them.

And the understood scope of Congress's legislative power today extends from the New Deal era. Since the latter 1930s, the Court has held the commerce power authorizes Congress to address matters "substantially affecting" interstate commerce. That standard allows regulation of even, for instance, working conditions at businesses that operate in one state only. Generations have accepted that precedent as establishing the constitutional scope of federal power in our modern, industrialized nation and integrated economy. That is, we did not feel the need to formally amend the constitutional text, to rigidly commit ourselves to untested language that attempts to more-explicitly reflect our evolved constitutional understanding. The people thus reconfirmed the Court's role in incrementally articulating our constitutional understanding, in a common-law style--preferring that to the uncertainty of creating and adopting new constitutional text through amendment.

On the heels of our founding, Justice John Marshall had underscored the constitutional status of precedent and Court's duty to "adapt" interpretation to the times. In McCulloch, he observed that the 1788 text's general terms showed original intent for broad interpretation: the founders established "a constitution, intended to endure for ages to come, and consequently, to be adapted [by interpretation] to various crises of human affairs." Moreover, precedent regarding the scope of federal power established by long-enduring practices "ought not to be lightly disregarded."

Even conservative justices follow precedent, affirming that the framers' mandate to adapt the 1788 Constitution by interpretation guides us still. The 1788 text itself expanded federal power well beyond the Articles' scope and was accepted by the voting class of the founding generation. But that first consensus does not extend to us cleanly; that electorate was tiny, privileged, white, male, and dead long ago. Rather, we join a chain of acceptance starting with that 1788 consent but linking through subsequent generations, each generation implicitly acceding to at least some of the interpretations expressed in the precedent of their time. What has been accepted over generations thus evolved--extending our full constitution beyond original text.

  The Persisting Rhetorical Mischief of Illegitimate Strict-Construction Claims

Strict construction proves illegitimate for many reasons: no textual scheme anticipates all contingencies; original meaning is vague and cannot limit inalienable rights; the text was originally intended to be interpreted adaptively; each successive generation has accepted clarifying or gap-filling interpretations; and our standard mandates respect for today's popular will.

But strict-constructionist rhetoric still obscures genuine questions. After elaborating the limits of judicial discretion (Part IV), I consider abortion, gay rights, and health care regulation. Legitimate constitutional debate on those issues--and progress on general public understanding, respect for the Court, and integrity in the judicial appointments process--still falters on the enduring influence of strict-constructionist zealots. Exclaiming the 1788 document's exclusivity, ignoring the way our constitutional standard limits that text's present role, they harbor and induce mistaken foundational notions. And those mistakes impair the public's appraisal of today's already-complex, real constitutional questions. That, in turn, undermines rule of law goals of ensuring the democratic basis of government and public understanding of legal authority.

An inane mischief, since the limited judicial discretion required for constitutional government serves monotextualists' own goals better than would their myth-based fantasy of strict construction.

IV. Limited Judicial Interpretation Serves Pragmatic and Conservative Concerns Better than Could Formal Constitutional Amendment Alone  

What is practicable must often controul what is pure theory: and the habits of the governed determine in a great degree what is practicable.

President Thomas Jefferson (in 1802, abandoning earlier strict-constructionist views when confronted with reality of government)

The option of formal constitutional amendment cannot eliminate need for some judicial interpretation and often would contravene conservative principles. At the same time, process and principle constrain the core of judicial discretion our legal system requires.

   The Practical and Inherent Limits of Amendment as Sole Means of Change

Contrary to the claim that meaning is frozen in time and new understanding emerges only from revising the 1788 text, amendment cannot practically accommodate all constitutional development. Many founders thought needs for change could be met by amendment more easily than our history has since proved. The 1788 Constitution has turned out to be one of the world's most change-resistant texts--with only seventeen amendments since the Bill of Rights--for two main reasons. First, our typical process, Congress passing proposals for states to ratify, poses a high practical hurdle. Today, for instance, Senators from a group of states collectively comprising only 7.5 percent of the population can deny the two-thirds Senate vote required for an amendment--a veto threshold twice as undemocratic as at our founding, reflecting increased population disparity between states. (The other, never-used option--a constitutional convention--is even less practical.) Second, we recognize that changing constitutional text introduces consequences hard to anticipate and reverse, a risk seldom warranted given our effective tradition of interpretation.

       Minority rights do not depend on majority protection. 

Most clearly, amendment cannot be sole guardian of unwritten inalienable rights. A national supermajority will not always rise and adopt amendments to constrain an abuse by majorities in particular states. And amendment can never remedy the present abuse of a right by act of Congress, that act expressing a national majority will that precludes existence of a supermajority wishing to protect the right. True, for some originally-unenumerated rights, the necessary national supermajorities eventually did arise and enshrine textual protection. We did abolish slavery. We did extend the right to vote, first to men of all races and eventually to women. But slavery's abomination persisted nearly a century after we claimed our independence to be justified by inalienable rights, finally eradicated only by an amendment born of civil war. And we cannot countenance generations of women being denied a political voice prior to 1920's ratification of the Nineteenth Amendment.

Denying judicial recognition of a right merely because amendment provides theoretical remedy, which supermajorities might someday implement, evokes the misguided thinking of Scott v. Sandford (the Dred Scott case). Dred Scott held that African Americans freed under applicable state law were, according the Court's flawed reading of founders' intent, too biologically and socially deficient to be considered "citizens" under the 1788 Constitution, a view that could not be disturbed absent amendment under that Court's narrow originalist philosophy.

      If gay rights are fundamental, they require judicial protection. 

Today, even ascendant national support for gay rights still falls short--far below thresholds for the congressional and state-by-state supermajorities required for proposing and then adopting a change to constitutional text. Such an amendment could be blocked in Congress by negative votes of senators from just seventeen states or denied ratification by just thirteen states. Because the 1788 Constitution's mechanism for formal change affords equal say to even the least-populated states, it matters that national support of same-sex marriage reflects strong-majority support in a relatively-small number of states, albeit many of the most-populated. Most federal senators from the opposing majority of states would follow their state's sentiment and vote against proposing any gay rights amendment. Or, should such a proposal garner two-thirds votes in the Senate and House, at least one-quarter of state legislatures or conventions would vote in opposition and thus deny ratification--at least in the near future.

The Court will treat the trend of state majorities favoring gay rights as supporting yet not deciding whether those rights presently are fundamental. Support for same-sex marriage peaks with younger voters and generally diminishes with each older age group. That suggests someday either (i) every state will recognize the right or (ii) a sufficient national supermajority will coalesce, agree on new constitutional wording, and adopt a gay-rights amendment. While rights would thus come for all gays through the political process--someday--as they ultimately did for the enslaved and women, our constitution does not countenance deferring an inalienable right.   On the other hand, the Court sometimes considers societal trends as one factor for assessing whether a claimed unenumerated right is inalienable in the first place. For example, the Court recognized the widening judgment of states and foreign countries that executing one mentally incapable of understanding that punishment violates a fundamental right, and that was relevant in the Court's assessment of that claimed right under our constitution. Conversely, the Court might find the relatively-small number of our states that have thus far found denial of same-sex marriage to violate their state constitution, or have voted or legislated for gay rights, to be a factor against recognizing such a right to be inalienable today.

Acknowledging that majorities do not determine individual rights only moves the inquiry forward, into the grey reality of constitutional adjudication. For example, principles outside text establish that Dred Scott was wrongly decided. The Court in 1858 should have followed principles of basic human dignity, including those of our Declaration of Independence, and recognized that Scott was entitled to have his claim heard and could not be considered property. On gay marriage, the Court may soon decide whether similar principles of basic human dignity, precedent, and societal trends if deemed relevant, either establish the claimed unenumerated right or justify subjecting gay rights restrictions to heightened scrutiny under the Equal Protection Clause (as explained below).

Though those principles are grey, that analysis inherently fuzzy, the Court can articulate fundamental rights in a way that conforms to conservative values and reflects judicial restraint, as described below.

  Judicial Interpretation's Conservative Character  

I cannot conceive how any man can have brought himself to that pitch of presumption, to consider his country as nothing but carte blanche, upon which he may scribble whatever he pleases.

Edmund Burke (philosophical forebear of modern conservatism)   

Limiting constitutional development to only the amendment process also would offend the conservative preference for incremental change. That conservative ideology traces to thinkers like Burke--especially his 1790 critique of the French revolution. Modern Burkean conservatives argue radical change risks unforeseen consequences and sacrifices benefits embedded in tradition. Change to law, they say, should follow experience, not abstract ideas, and be proportionate to change in social conditions. Hence, change in constitutional understanding is more suited to case-by-case judicial development than to creating constitutional text to be ensconced by amendment, difficult to later alter or undo.

Compounding the potential harm from an amendment's sharp break with tradition, society's complexity hinders predicting effects of change. In The Road to Serfdom (1944), Austrian economist Friedrich Hayek posited central planners' fundamental problem: inevitable gaps in knowledge of present situations denies certainty about outcomes of reforms. The many American conservatives who purport to follow Hayek thus should find incremental constitutional interpretation superior to formal textual change, amendment placing unwarranted trust in our ability to know the future direction of society and to plan centrally.

Consistent with those principles, conservative justices did not require any amendments to establish, for instance, that campaign contributions are constitutionally protected expression, though constitutional text protects only "speech," or that the government's mere regulation of property use triggers a right to compensation, though the Takings Clause of the Fifth Amendment applies only to property "taken." Instead, those concepts developed through a century's incremental judicial decisions, now constitutionally enshrined in precedent, precedent yet subject to further refinement based on new circumstances or evidence of practical unworkability.

  Judicial Virtue: Prudent Appointments and Moderated Adjudication

While judicial interpretation proves necessary and desirable, and some resulting precedent eventually enters our constitution, even liberals acknowledge judges' discretion needs guides and limits. And our system does promote such virtuous adjudication in many ways. Most judges--liberal to conservative--labor to respect bounds and follow principles. All federal judges and many state high-court judges have the independence arising from not having to stand for election--crucial for the judicial role in protecting minority rights against political influence of potentially-tyrannical majorities. Moreover, the best have a professional record that correctly predicted judicial ethics and restraint at the time of their appointment, as well as strong legal knowledge, experience, and analytical ability. Those attributes equip them to develop constitutional interpretations thoughtfully, incrementally, and only when necessary. That the final say falls to multi-judge appellate courts dampens individual influence. Moreover, they apply various limiting principles that further constrain their discretion. And empathy plays a positive role, sometimes enhancing objectivity.

      Empathy's moderating virtue. 

Judicial discretion critics especially dislike that judges must determine whether rights not codified in constitutional text are inalienable and thus protected, decisions they think rife with personal bias. Typical are recent arguments against "empathy," especially during the confirmation process for Justice Sotomayor.


Intellectual identification with or vicarious experiencing of the feelings, thoughts, or attitudes of another person.


Harmony of or agreement with in feeling, as between persons or on the part of one person with respect to another.

The critics of empathy have it backwards: rather than being a disease, empathy can cure ailments of ignorance. By contrast, the claim that some judges rule merely to favor certain groups really charges a misuse of sympathy, which no one condones and Obama did not endorse when citing the virtue of empathy in judicial nominees.

In certain hard cases, empathy decreases bias by mitigating subconscious prejudice, prejudice often owing to the limits of a judge's experience. Judges able to empathize with--intellectually identify with--the perspectives of social groups with interests at stake in a case can better avoid antipathy to those interests. But when a judge cannot transcend his or her narrower perspective, antipathy to other perspectives thus may inhere, even if only subconsciously.

Justice Benjamin Cardozo described how such inherent biases can taint adjudication in his still-influential 1921 publication, The Nature of the Judicial Process. When logic alone cannot decide a case, "[h]istory or custom or social utility or some compelling sentiment of justice or sometimes perhaps a semi-intuitive apprehension of the pervading spirit of our law must come to the rescue . . . ." But impeding that knowledge, Cardozo notes,

Deep below consciousness are other forces, the likes and dislikes, the predilections and prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.

Courts may decide constitutional cases more objectively when they better understand the perspectives of relevant groups--overcoming subconscious biases Cardozo says inhere in one's limited personal perspectives. As capacity for empathy can increase with broader experience, diversity of backgrounds on multi-judge tribunals, such as our Supreme Court, may enhance their collective capacity to understand contemporary society. Thus, the racially-insulated, all-white majority in Plessy v. Ferguson that upheld racial separation on trains could not empathize with the late-nineteenth-century experience of African Americans. By contrast, ability to empathize with women generally likely influenced otherwise socially-conservative, states-rights-oriented Justice O'Connor to vote to retain the core of Roe, in Planned Parenthood v. Casey. And co-"swing voter" Kennedy may have learned from O'Connor's perspective or his interactions with other women.

Finally, the practice of empathy requires both a knowledge of others and an intellectual capacity to identify with them. So even some with very-diverse experience do not think empathetically if disposed against it. Conversely, empathy does not require being, or knowing well, a racial minority, woman, et cetera. It may derive from other categories of experience, such as socio-economic background or professional work, or no direct experience at all--instead emerging from open-mindedness and a habit of learning about others.  

     Principles that constrain personal bias.   

Though judicial discretion is necessary, conservatively-oriented, limited by careful selection and judicial independence, and improved by empathy; some subconscious bias still may color any judge's perspective when the applicable law is gray. To counter that influence, courts aspire to use neutral-tending principles, resistant to judges' individual ideologies.

For instance, rather than philosophizing about human dignity in the abstract, a process easily swayed by ideology, the Supreme Court often ties recognition of fundamental rights to already-recognized legal principles or social practice. In 1908, it began naming the specific, unenumerated rights--not expressed in the 1788 text or amendments--that the Fourteenth Amendment's general guarantee of "due process" should be interpreted to restrict states from violating. Looking to many of the rights protected from federal infringement in the Bill of Rights, the Court saw examples of rights it deemed "fundamental to ordered liberty," such as freedom of expression, that informed the undefined meaning of the "due process" restriction now imposed against states. 1788 ideas on rights needing protection from federal majorities, codified in the Bill of Rights, thus helped define abuses needing protection from states over a century later, a method applied in McDonald's recent holding on gun rights.

Identifying fundamental rights beyond Bill of Rights examples, the Court has bound itself to neutral-tending, limited principles of analogy and incrementalism. 1967's Griswold v. Connecticut used analogy both to constitutional text and to other rights already recognized in precedent, finding recognized privacy- and family-related interests extended to protect married couples' contraceptive use. Incrementalism--recognizing the Burkean value of continuity while evolving constitutional understanding--has characterized the Court's approach to federal power. The Court expanded the interpreted scope of commerce power in precedential steps that paralleled our national economy's increased integration.

Our system of constitutional government depends on judicial interpretation, though all agree that discretion must be constrained.   Every Supreme Court justice--even the most conservative--uses sources and methods beyond the text of the 1788 Constitution to decide some constitutional questions. Arguments for a constitutional right to same-sex marriage before the Court thus rely not only on text such as the Equal Protection and Due Process clauses, but also on existing, analogous precedent described below. Empathy may aid the Court the Court's objectivity in assessing the gay litigants' claims. And other rights recognized in precedent provide a foundation on which the Court could frame recognition of a right to same-sex marriage as an incremental rather than radical step.

V. Debatable Questions Remaining after Purging the Myths

Grasping originalism's limits and judicial discretion's necessity does not end debate but brings focus to challenging, real disputes. The whole-constitution approach, alone, does not decide but only better frames arguments about the existence and scope of such unenumerated rights as abortion and same-sex marriage. And legitimate arguments remain on questions of federal power, including the legislative power authorizing the Affordable Care Act (ACA).

  Unenumerated, Inalienable Rights

The more-developed constitutional precedent on procreative rights offers some settled principles but also frames still-debatable issues that presage more-recent arguments over gay rights.

     Procreative rights: the established precedent and open questions.  

Transcending the myths focuses discourse by excluding illegitimate points. Justice Douglas's Griswold holding that "privacy" protected marital contraception provoked both valid and illegitimate challenges. Myth-induced critiques obsessing on the constitutional text's lack of the word "privacy" were disingenuous, since text cannot limit inalienable rights. Genuine debate, instead, involved other issues--including how Douglas used extra-textual principles to identify the right. He claimed to proceed incrementally, following both analogous precedent, such as longstanding holdings on parental rights, and rights expressed in constitutional text, such as association and the right against unreasonable searches.

And Douglas provoked further criticism with a metaphor describing how unenumerated rights are tethered to recognized rights, a metaphor ridiculed in popular media. He said rights expressed in constitutional text had "emanations" casting "penumbras" containing more-general rights, such as privacy. That rhetorical flourish may have been imprudent but should not taint his underlying analysis. His descriptive language aside, Douglas had grounded his interpretation in text and precedent. More-valid critique focuses on whether he took that process too far--whether he properly declared a general right of privacy rather than only a narrower right of marital procreative autonomy.

In general, courts legitimately may use some extra-textual sources to determine whether a claimed inalienable right exists. Debatable issues, instead, include the appropriate types and relative weights of those extra-textual sources; the ways to apply them to articulate rights without undue judicial discretion; and conclusions that should follow from applying those sources and methods about the existence, nature, and scope of rights protected--all still difficult, remaining questions.

Public debate about abortion also illustrates the distinction between fair and irrelevant issues for argument. A genuine critique of Roe (refined by Casey) cannot merely complain the text lacks the term "abortion." And basic reproductive freedom and women's bodily autonomy at least reflect principled implications of Griswold, other precedent, and text--even if one contests the formulation and application of those principles. Most legitimately disputable is the competing scope of states' asserted interests in pregnant women's health and fetal "life," the rationale allowing states to ban most abortions after fetal viability. Genuine debate continues on the nature and limits of those interests and their relation to a woman's rights.

Conservative: Granted there are unenumerated rights, but declaring a right to control procreation displays too much discretion by judges.

Whole Constitutionalist:  The Court recognized women's reproductive and bodily autonomy in a process yoked to text, history, and precedent. At the same time, it has recognized states' interest in the fetus, allowing bans of most post-viability abortions --following a common law, rather than either a religious or secular-moral, view of whether and when fetal "life" becomes comparable to born human life.

Freed from the obfuscation of myth-based thinking, the above dialogue could continue productively. (Note Conservative's interlocutor is now Whole Constitutionalist, reflecting this essay's perspective.)

     The whole-constitutionalist perspective on gay rights.  

Attuned to the Court's approach to such other rights issues, gay marriage advocates present two independent constitutional arguments. The first relies on more-explicit text, the Equal Protection Clause: "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." On its face, that text could be read to prohibit states from denying gays a legal right afforded heterosexuals--the right to choose a marriage partner corresponding to one's sexual orientation.

But equal protection precedent calls for a more-constrained analysis. To uphold most classifications that treat groups of people differently, the Court has required only a rational basis. Thus, the class of speeding drivers can be made to pay a fine others do not because highway safety is a legitimate government goal to which such fines are rationally related. The government has been required to meet a higher level of justification, heightened scrutiny, only for certain classifications: those related to the Equal Protection Clause's original motivation--racial classifications--and those of certain other groups who have been held to somehow have diminished political power.

The Court has held just four non-racial classification types require justification greater than mere rationality: nationality, alienage (with exceptions), gender, and being born to unmarried parents. Paralleling the conservative turn in its composition, the Court has not identified any further "suspect" classifications since the 1970s, rejecting heightened scrutiny for classifications based on, for instance, age, disability, and wealth. The Court even rejected sexual orientation as a suspect classification in 1986, upholding a conviction for homosexual sodomy in Bowers v. Hardwick, finding Georgia rationally determined to treat same-sex sexual activity differently.

But two subsequent decisions cast doubt on Bowers's continuing validity. In Romer v. Evans, the Court overturned a Colorado constitutional amendment that prevented municipalities in the state from enacting ordinances to prohibit sexual-orientation discrimination. And Lawrence v. Texas struck down a homosexual sodomy law. In neither case, however, did the Court call sexual orientation a "suspect" or "quasi-suspect" classification--one requiring some form of heightened scrutiny. Rights advocates had argued for "intermediate scrutiny"--a test already applied to classifications based on gender and birth to unmarried parents--requiring government to show its actions to be substantially related to an important government interest.   Overturning both states' provisions, Justice Kennedy instead characterized them as either (i) based on the illegitimate motivation of animus towards gays or (ii) not rationally related to any other governmental objective that is legitimate. But most scholars, as well as Justice Scalia in his Lawrence dissent, recognized that the threshold for justification Kennedy actually employed was higher than the typical "rational basis" test, much more like intermediate scrutiny. Many commentators characterize Romer, Lawrence, and a few similar cases as applying a "rational basis plus" test, an unclear standard, uncertain in application. If the Court reaches the merits of the present appeals, it could clarify the standard for gay rights.

Bans on same-sex marriage probably fail the most-likely clarified standard, intermediate scrutiny. Opponents have not established any important governmental purpose gay-marriage bans directly and substantially relate to achieving. By contrast, empirical evidence shows they do not enhance the stability of heterosexual marriages or welfare of children.

The alternative to the equal protection argument relies on the more-generally-framed Due Process clauses restricting both the federal and state governments. Again, the Court uses the prohibition against denying "life, liberty, or property without due process of law" as the starting point for articulating unenumerated fundamental rights, holding the states to be restricted by almost all the concepts that expressly limit the federal government in the Bill of Rights. And both the federal and state governments are restricted by other unenumerated rights, such as those to contraception and abortion. The due process analysis would consider the claimed right to marry the adult partner of one's choosing against that backdrop of a wide range of already-recognized, unenumerated rights, aided by general, limiting principles that guide the determination of whether any claimed right is inalienable.

For heterosexuals, precedent does already recognize an adult's right to marry--to enter into a legally-significant, intimate, family-enabling, indefinitely-enduring commitment to any adult of the sex to which they are primarily attracted--even if genetics place them in a racial category different than their chosen partner's.

Absent some principled reason all Americans do not share that right, then, every adult is fundamentally entitled to enter into that legally-significant, intimate, family-enabling, indefinitely-enduring commitment to an adult of the sex to which they are primarily attracted--even if genetics or other formative elements have placed them in the sexual-orientation minority. And that children raised by gay couples are not their joint genetic issue is not a distinction that justifies denying their rights; heterosexual couples are fundamentally entitled not to procreate at all and can raise non-joint-genetic children. What's more, the Court has already held that all Americans may believe anything, say almost anything, associate with almost anyone, and worship in almost any way, even not at all. A same-sex marital spouse also constitutes an associational choice and exercise of fundamental personal beliefs and practices.

And the scope of unenumerated rights cannot be limited to a narrow conception of American "tradition." Court conservatives often argue the constitutional significance of tradition--for instance that it justifies both limiting fundamental parental rights to marital partners, not unwed fathers, and extending gun rights beyond what the Second Amendment requires. Yet our tradition also includes slavery, and we inherit the practice of opposite-sex marriage from eras when people were severely oppressed for being gay. A more-Burkean view scrutinizes tradition for embedded values still relevant. The contemporarily-relevant value in the "marriage tradition" is not anti-gay prejudice but the virtue of committed adult relationships. And embedded within tradition supporting many other recognized rights are more-general values of freedom of thought, association, and life-style choice, also supporting marital choice.   Kennedy's Lawrence opinion spoke of the rights of intimate association between consenting adult partners in the privacy of the home; the ability to legally commit to one's partner in such a relation seems just as fundamental, just as traditional. (And fi nding a right to same-sex marriage would not also constitutionalize polygamy. As rejecting plural marriage does not deny anyone a committed relationship with an adult of the sex to which one is attracted, limiting one to a single marital partner at a time does not offend the fundamental right that supports gay marriage.)

Finally, t hose who argue the infringement on marriage rights to be insubstantial because civil-unions suffice for gays harken to the narrow thinking of 1896, the "separate but equal" specter of Plessy v. Ferguson. Fifty-eight years later, the Court rejected that concept in Brown v. Board of Education, following extensive empirical evidence not only that purportedly-equal conditions generally prove far from equal when scrutinized, but that other, intangible harms inevitably inhere when we separate citizens using immutable characteristics.

Precedent already holding that (i) marriage is a fundamental right, (ii) laws motivated by animus towards gays are unconstitutional, and (iii) choice in certain family-related matters and inter-personal intimacy is protected, thus combines with more-general holdings on freedom of belief and association to provide a substantial foundation for the Court's assessment of gay rights. The conclusion that denial of same-sex marriage violates equal protection or a fundamental right could thus be framed as only an incremental step.

  Federal Power, Economic Liberty, and the Individual Health-Care Mandate

Even broad precedent on congressional power carries significant limits, contrary to an argument against the ACA. In National Federation of Independent Business v. Sebelius decision, a 5-4 majority found Congress's "commerce power" did not authorize the ACA's individual mandate, though another 5-4 majority (Roberts joining the liberals) held that provision to be authorized by the taxing power.  

The commerce power ruling falls short of the full-constitution approach, yet was embraced by many conservatives because it portends future narrow holdings on federal power:

Conservative: Since forcing a purchase is not regulating commerce, the Court rightly held the individual mandate to be outside the commerce power.

 Whole Constitutionalist: The Court slighted precedent that has interpreted federal power broadly, as territorial and population growth and revolutions in industry, transportation, and communication increased the integration of our national economy. For 75 years, the Court has held Congress to have power even over matters substantially affecting interstate commerce, including minor things that aggregated have such impact. That precedent covers the health insurance market, substantially impacted by individuals who would shirk coverage.    

Conservative:  But Congress has never been held to have power to compel doing something.

Whole Constitutionalist: That's not true or relevant. Congress mandated musket possession in 1792. The Court upheld requiring everyone to accept paper money in 1871. And it has never struck a military draft's service mandate. Further, no constitutional text limits the means Congress may use to exercise its powers, besides prohibitions on infringing individual rights, such as due process; no prior case precluded mandates; and mere infrequency of its past use of mandates cannot disable Congress today.

Conservative: But that would mean Congress's commerce power is unlimited--they could make us eat broccoli.

Whole Constitutionalist: No. Forced feeding violates unenumerated rights to bodily integrity. Most other assertions of federal power would still need to relate to matters substantially affecting interstate commerce and not infringe individual rights; and precedent precludes laws that would commandeer state officials to achieve federal ends.

But many conservatives despise the Court's broader judgment, upholding the individual mandate as authorized by another textual source--the Taxing Clause--and not finding any infringement of economic liberty.

Whole Constitutionalist: But the mandate was correctly upheld under taxing power. Because the 1788 Constitution's text allows Congress to tax for the "general welfare," it may use tax burdens, like the penalty for violating the mandate, to deter nationally-detrimental financial behavior that undermines the general welfare.

Conservative: I disagree. And regardless of the source of federal power, forcing a purchase still violates individual liberty.

Whole Constitutionalist: The constitution protects individual liberty from federal and state action to the same degree, and the ACA is no more invasive than many valid state-level economic mandates. Due process clauses limit both Congress and the states, and precedent upholds, against liberty claims, states requiring citizens to buy many things, such as food for children and safety features for homes. If economic liberty extended so far as to invalidate the ACA, it would also invalidate state building codes, child welfare laws, et cetera--which makes no sense.


The individual mandate's loudest opponents combined a general hatred of the policy itself with a too-narrow appreciation of our constitution; others argued federal power to be limited by economic liberty principles beyond what due process precedent teaches, an argument that also disregards our history.

The ACA, instead, respects the American concept of constitutional liberty, which emerged from two watershed transitions. First, in Reconstruction we responded to our depleted trust of individual states with basic rights of their inhabitants by adopting amendments that limited state governments--abolishing slavery (in the Thirteenth Amendment), providing several generally-framed rights protections (in the Fourteenth), and precluding racial discrimination in voting (in the Fifteenth). The Fourteenth Amendment's broad provisions now limit states to a degree very similar to the Bill of Rights' limits on federal action. For over a century, understanding of individual liberty thus has developed more in the frequent Fourteenth Amendment "due process" claims against state governments than in the fewer cases against the federal. But in general, any limits constitutional liberty places on states also restrict the federal government, both being subject to identically-worded due process clauses. Likewise, the long list of cases denying the much-more-numerous challenges against government action in various states has established a broad scope of things government--state or federal--may require without infringing liberty, a scope the ACA does not exceed.

Second, beginning in 1937, the Court reversed its decades-long practice of second-guessing legislation that affected economic interests. Judges are not suited to that inquiry, and those economic interests are shared by political majorities that wield power sufficient to influence legislation. Since then, close scrutiny has been applied only to interests lacking effective political power, such as the interests of racial minorities, while asserted infringements of economic liberty are subjected only to requirements of rationality.

The ACA rationally affects a type of general economic interest repeatedly held not violated by government regulation, for which the political process provides a constitutionally-sufficient voice, as the 2010 election cycle demonstrated. In contrast to the liberty claim Sebelius rejected, gay marriage invokes some rights that are not primarily economic. Unlike general economic interests, gay rights cannot be presumed to be sufficiently embraced within political majorities to insulate them from substantial infringement by legislatures and local municipal bodies in every state and by Congress.

American Constitutionalism Is Not Strict Construction

A "Constitutional conservatism" that entails monotextualism is neither constitutional nor conservative. The strict construction approach defies the American legal tradition and founders' intent. It is anti-Declaration of Independence and rejected even by Scalia. Adherents may be blinded to its illegitimacy by the lure of it providing another argument against federal power or by their dislike for certain individual rights or constituencies. Those who stoke popular belief in strict construction undermine the perceived legitimacy of Court opinions, steering discourse away from genuine constitutional questions. That obscuring of constitutional reality impedes the rule of law. And limiting constitutional development to formal amendments would contravene the conservative values of incrementalism and avoiding central planning.

We all agree that resolving constitutional questions should start with and rely extensively on the 1788 Constitution, as amended. Giving substantial weight to that text both is required by our democratic consensus and fulfills pragmatic and rule-of-law goals, limiting judicial discretion to only what is necessary for constitutional government. Still-challenging questions of degree and appropriate limiting principles for that discretion dominate the constitutional discourse among judges, academics, and lawyers. But the public needs to be better informed of the nature of that debate.

In a more-genuine public debate, presidential candidates would not pledge to "put judges . . . on the bench, . . . who will strictly interpret the Constitution," as George W. Bush did in 2000, nor would senators brand a nominee unfit to serve because she believes "judges may determine what . . . words [of the constitutional text] actually mean," as Orrin Hatch said of Justice Kagan at her 2010 confirmation hearing. Instead, even conservatives might ask judicial candidates to describe the "principles that would limit their discretion when fulfilling the duty to articulate and apply unenumerated constitutional rights"--engaging a genuine issue. All participants in that debate would be whole constitutionalists of some sort, with conservatives likely advancing stricter sets of principles to govern judicial discretion. Changing the discourse in that way could lessen the taint of outright illegitimacy of each side's argument in the eyes of the other. And so reframing the public debate as competing--yet legitimate--arguments could diminish outrage from the extreme right and left, enhance the reputation of the Court and judicial appointments process, and improve the quality of public constitutional discussion in general.

Because to believe the federal constitution imposes limits on states' regulation of guns one must also reject strict construction, America may be ripe for that sort of progress.

Darren Latham, associate professor at Florida Coastal School of Law in Jacksonville, teaches constitutional law, comparative law, and international commercial law courses and writes on constitutional history and theory.

Submitters Bio:

Darren Latham, associate professor at Florida Coastal School of Law in Jacksonville, teaches constitutional law, comparative law, and international commercial law courses and writes on constitutional history and theory.