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Rosen: Liberals Should Worry That Supreme Court Will Protect Too Much Liberty

05/04/2015 10:50 am ET | Updated May 04, 2016

There was much discussion of "dignity" at the Supreme Court last Tuesday, as the court heard oral argument in the same-sex marriage case Obergefell v. Hodges. Some supporters of same-sex marriage found this discussion encouraging. But law professor Jeffrey Rosen, writing at The Atlantic, solemnly warns readers that a decision reached on the basis of "dignity" might be a "dangerous" one for those who champion "progressive legislation." According to Rosen, "the roots of the right to dignity in constitutional text, history, and tradition" are uncertain, and a dignity-based decision "may produce far-reaching consequences that [progressives] will later have cause to regret."

It is true that the Supreme Court has no business deciding constitutional cases on the basis of concepts that cannot be grounded in constitutional "text, history, [or] tradition." But Rosen's criticism of "dignity" sweeps more broadly: By the end of his article, he is disparaging the judicial protection of a right that is expressly affirmed in the text of the Constitution. Everyone who believes that Americans are entitled to the full measure of freedom that the Constitution guarantees should resist this case for reflexive judicial restraint, which is profoundly hostile to liberty.

At first blush, Rosen's case against dignity appears to be informed by originalism -- the view that the Constitution has a fixed, determinable meaning that judges must enforce. Thus, Rosen criticizes the use of dignity in constitutional analysis on the grounds that "the kind of liberties that the Framers had in mind ... were very different, and far more specific, than the broad right to be free to define your own identity without being demeaned by the state or by fellow citizen." He approvingly cites Justice Antonin Scalia's bitter dissent in Lawrence v. Texas (2003), the case in which the Supreme Court (properly) invalidated a criminal ban on same-sex intimacy, arguing that "[Scalia's] question about why the state's police power to protect public morals -- taken for granted from the founding era until the Lawrence case -- was suddenly a violation of the Constitution remains valid and unanswered."

But as Rosen's argument proceeds, it becomes apparent that he is less concerned with whether dignity has any legitimate role in constitutional analysis than with whether embracing it as a constitutional value might incline judges to protect more liberty than he prefers. His very first example of legislation that might be endangered by dignity is telling: gun-control laws. As the Supreme Court correctly held in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), the Second Amendment was designed specifically to protect the individual right to keep and bear arms for the purposes of self-defense. Dignity aside, in order to give effect to the Second Amendment, judges must evaluate and, if necessary, set aside gun-control laws.

The suspicion that Rosen's criticism of dignity is calculated to support a broader argument for reflexive judicial restraint in constitutional cases finds further support in Rosen's second example: the Affordable Care Act's individual mandate. Per Rosen, "Libertarian groups ... argue[d] that the Obamacare healthcare mandate unconstitutionally violated the dignity and autonomy of Americans by forcing them to buy health insurance." But the leading constitutional argument of libertarian groups was not based on an abstract "right to dignity." Rather, it was based on the text of Article I, specifically the Commerce Clause, which delegates to Congress limited authority to regulate interstate commerce.

Rosen gives the game up, however, when he takes comfort in the fact that "the liberal justices seemed drawn to the idea that marriage is a fundamental right that must be expanded to all citizens on equal terms." Rosen explains, "A decision along those lines ... might be easier to confine to cases involving marriage." Not a word about whether the right to marry is in fact protected by the Constitution properly understood. In the final analysis it seems Rosen's primary agenda is to confine judicial discretion rather than ascertain the meaning of the Constitution.

Rosen's prioritization of judicial restraint over enforcement of the Constitution's guarantees has intellectual roots that can be traced back to the late 19th century. Progressive jurists (including Louis Brandeis, of whom Rosen is a great admirer) saw reflexive judicial restraint as a means of enabling comprehensive social and economic reforms that the Constitution had been (properly) interpreted to thwart. Later, conservative jurists appalled by the perceived "activism" of the Warren court would advocate judicial restraint as a means of preventing an overly ambitious judiciary from invalidating regulations of social life.

But these advocates of judicial restraint misunderstood the role of the judiciary in our constitutional republic. The framers believed that the political branches could not be trusted to stay within constitutional limits and established an independent judiciary to ensure that they did so. The judicial engagement required to keep the political branches in check may be fraught with difficulty, but judges are duty-bound to make a disciplined, reason-guided effort to "say what the law is," keeping in mind that the democratic process is not an end in itself but a means to securing individual liberty. To decline this duty would be an act not of judicial modesty but of judicial abdication.

Rosen is correct that the Supreme Court should not decide Obergefell v. Hodges -- or any case -- on the basis of philosophical convictions or policy preferences without any constitutional foundation. But nor should it fail to give practical effect to any constitutional provision in any setting where it properly applies. When judges abdicate, we are left only with the self-restraint of politicians to safeguard our liberty -- and experience past and present has shown that this is no restraint at all.