If people disagree about the meaning of "liberty," do judges have any business taking positions on what it means? In a recent interview with the Weekly Standard's Bill Kristol, Justice Samuel Alito discussed the same-sex marriage case, Obergefell v. Hodges, and expressed doubts about defining liberty. Alito criticized the Supreme Court's so-called "substantive due process" jurisprudence, which is grounded in the proposition that the Constitution's Due Process of Law Clauses protect people against certain deprivations of life, liberty, or property, regardless of what procedures are used to effect those deprivations. "Liberty," Alito argues, "means different things to different people." It is not something that is "objectively ascertainable." Given that the Court's reasoning in Obergefell departed from its "two-step" requirement in Washington v. Glucksberg (1999) that any claimed "liberty" must be "deeply rooted in the nation's history and tradition" and be given a "careful description," Alito concludes: "There's no limit... [W]e are at sea."
This concern is unfounded. While "liberty" is indeed an abstract concept, the Constitution is full of such concepts, and concerns about abuse do not excuse judges from conscientiously interpreting and applying those concepts. The answer to Alito's concerns is to insist upon judicial fidelity to the principles that are written into our Constitution, not judges' own ideals.
Substantive due process is a doctrine used to protect important freedoms not specifically enumerated in the text of the Constitution, such as the right to earn an honest living, the right to guide the upbringing of one's children, and the right to bodily integrity. Alito's criticism of the doctrine is familiar. The first concerted scholarly criticism of substantive due process came from Progressives during the late nineteenth and early twentieth century. Progressives argued that the theory of natural rights that informed substantive due process was outdated and gave judges too much discretion to strike down the sweeping regulations of economic and social life which they favored. Later, a New Deal Court that embraced the Progressive critique sought to reconcile a conception of judicial review that offered meaningful protection for some individual rights (but definitely not economic liberty) with an expansive role for government at all levels.
This "New Deal Originalism" was eventually adopted by conservative critics of the perceived "activism" of the Warren Court. Judge Robert Bork spoke for generations of conservatives when he criticized the Court's decision to strike down a ban on contraceptive use in Griswold v. Connecticut (1965) on the grounds that the ban did not "threaten any [textually] guaranteed freedom." Although Bork framed his arguments in originalist terms, his dismissive treatment of substantive due process is historically unwarranted. As Frederick Geddickes, Timothy Sandefur, Ryan Williams, and David Bernstein, among others, have shown, judges were scrutinizing legislation that implicated natural and common law rights to determine whether that legislation furthered legitimate, public-spirited ends before the drafting of the original Constitution. As Geddickes puts it, "by 1790... the notion of the 'due process of law,' associated with the 'law of the land' guaranteed by Chapter 29 of Magna Carta, was understood to include a residual guarantee of substantive liberty against arbitrary actions of government, including (especially) those of the state legislatures." There is no reason to believe that this understanding was lost by the time the Fourteenth Amendment's Due Process of Law Clause was framed. Reading Bork, one is left with the impression that he was primarily concerned not with original meaning but with limiting judicial discretion. Alito's remarks convey a similar impression--he has little to say about the history of the Fourteenth Amendment's Due Process of Law Clause, focusing instead on its potential for judicial abuse.
There is some merit to Bork's (and Alito's) criticism of the Court's substantive due process jurisprudence. It has developed in an often haphazard, unprincipled way. But it is a strange conclusion for anyone to reach--let alone a judge--that disagreement about the meaning of concepts like "liberty" proves that they are not "objectively ascertainable." Take "freedom of speech" for instance, which Alito discusses in the course of his interview. As Kristol notes, Alito has dissented in high-profile free speech decisions, and has a "distinctive" view of what is and what is not constitutionally protected speech. And yet, he holds to that view, apparently because he thinks it is correct, notwithstanding the disagreement of his colleagues. If the existence of disagreement about constitutional concepts were sufficient to justify refusing to enforce them, the courts could not act as the "bulwarks of liberty" envisioned by the Framers.
Further, the experience of the last several decades discloses that the primary problem with our judiciary is not its willingness to protect debateable liberty interests but its neglect of plainly legitimate ones. While the Court toyed with "welfare rights" in cases like Shapiro v. Thompson (1969) and Goldberg v. Kelly (1970), it has (as Alito acknowledges) since steadily retreated from them. As Justice Alito notes, the Supreme Court in the wake of the New Deal constitutional revolution all but ceased protecting the right to earn an honest living. This despite the fact that occupational freedom was revered by the Framers of both the original Constitution and the Reconstruction Amendments and is of central importance to ordinary citizens pursuing their American dreams.
Finally, the consequences of rejecting unenumerated rights have been tragic, even monstrous. Consider Abigail Alliance for Better Access to Developmental Drugs v. Eisenbach (2007), involving a suit by a group of terminally ill cancer patients against the FDA under the Fifth Amendment's Due Process of Law Clause. The FDA had blocked access to experimental drugs that might have saved their lives, on the grounds that the drugs might prove dangerous. Applying the Glucksberg two-step test of which Justice Alito speaks approvingly, the District of Columbia Court of Appeals, sitting en banc, held that "the right of a terminally ill patient with no remaining approved treatment options" to have access to potentially life-saving drugs was not "deeply rooted in our Nation's history and traditions." Thus, the court applied the so-called "rational-basis test"--the default standard of review in constitutional cases and, in practice, a judicial rubber-stamp--to uphold the FDA's decision to deny access to potentially lifesaving drugs. As Judges Judith Rogers and Douglas Ginsburg pointed out in dissent, the liberty at issue in Abigail Alliance, properly understood, was the liberty "to attempt to preserve life"--a right that lies at the base of all rights. The majority opinion gave short shrift to the right asserted by the plaintiffs, owing to a narrow conception of the rights we hold--a failure of judicial engagement that the dissent rightly identified as not "judicial modesty" but "judicial abdication."
What, then, should judges do? Simply put, they should seek to determine the meaning of terms like "liberty," "freedom of speech," "unreasonable searches and seizures," "privileges or immunities," and other inherently value-laden constitutional concepts through consistent, conscientious, logic-guided inquiry. History can serve as a guide, but it is not dispositive. All conceptual terms depend upon a rational assessment of the world in which they operate, and the set of things to which they refer can and does change as the world changes.
Alito has demonstrated his appreciation of the open-ended nature of concepts in his own jurisprudence. He penned a concurrence in United States v. Jones (2012), in which the Supreme Court held that attaching a GPS tracking device to a vehicle and using the device to monitor the vehicle's movements twenty-four hours per day for four weeks constitutes a "search" under the Fourth Amendment, even though such a "search" would have been unfathomable to the Framers. Alito specifically declined to rely upon common-law, property-based analysis, focusing instead on whether long-term GPS monitoring impinges upon people's reasonable expectations of privacy.
In the context of the Due Process of Law Clause, what matters is not what particular exercises of liberty the Framers would have approved of or even imagined being pursued but what kind of thing they believed liberty to be. The Framers of both the original Constitution and the Reconstruction Amendments subscribed to broadly Lockean premises, according to which liberty consists in the exercise of natural rights that pre-exist government, as well as civil rights necessary to secure those rights, like the right to access the courts and the right to make and enforce contracts. The "freedom from want" which Alito expresses concern about is distinguishable--such "freedom," whether it consists in access to a "free college tuition" (Alito's example), a guaranteed annual income, or other goods and services, can only be provided by compelling others to part with the fruits of their labor. Fidelity to the Framers' Lockean premises is required of judges who are duty-bound to interpret and apply our written Constitution, not impose whatever conception of liberty they may have on the rest of us.
Of course, it is possible that judges will depart from that duty and use constitutional concepts like "liberty" to constitutionalize their policy preferences. But they would also depart from their duty by failing to interpret and apply concepts that are written into the Constitution's text. To borrow a phrase from James Madison, Alito's cure is worse than the disease. We have more to fear from judicial neglect of liberty than judicial solicitude for it.