If one misunderstands the theory of rights that informs the Constitution, one's approach to judicial review will reflect that misunderstanding. In my initial response to Carson Holloway's essay at National Review Online, I argued that the Constitution does in fact protect unenumerated rights--and judges should do so as well. This is not merely an academic dispute. The tragic results of reflexive judicial restraint disclose the need for judicial engagement every time the government restricts constitutionally protected liberty.
The 1905 case of Lochner v. New York crystallizes my disagreement with Holloway. In my previous post, I argued, contra Holloway, that the freedom to sell one's labor on mutually agreed-upon terms is an unenumerated but constitutionally protected right. The Lochner majority sought to determine whether a maximum-hours law deprived bakers of this right. The Court looked for a demonstrable, substantial factual connection between the law and a constitutionally legitimate end of government, as it had done prior to Lochner. As Justice Peckham stated, "The mere assertion that the subject relates, though but in a remote degree, to the public health, does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate." The Court found no proof that allowing bakers to work beyond the allotted hours posed a material danger to the bakers or the public's health. Finding no demonstrable, substantial factual connection between the maximum-hours law and any legitimate end, the Court struck down the law.
Holloway embraces Justice Oliver Wendell Holmes, Jr.'s canonical dissent in Lochner. Like Holmes, who stated that he did "not need facts" to find that the maximum-hour laws were "rational," Holloway finds the Lochner majority's factual inquiry inappropriate in the absence of a "clear textual basis" for liberty of contract. In Lochner, the purported end of the maximum-hour laws --protecting public health-- was legitimate. In such a case, Holloway reasons, it is no business of the Court "to ascertain exactly how far the government can go." But the consequences of abandoning factual inquiry are grim indeed. We need only to look to the 1927 case of Buck v. Bell to see them laid bare.
In Buck, the Court considered the plight of Carrie Buck, a teenager from Virginia who was committed to a state institution after becoming pregnant. The medical authorities sought to sterilize her on the grounds that she was "feebleminded" and "promiscuous." (She was in fact neither.) Justice Holmes, writing for the Court, took the government's factual assertions at face value and found that it was reasonable for the state, in the name of public welfare, to prevent the "manifestly unfit from continuing their kind." He concluded: "Three generations of imbeciles are enough."
On Holloway's analysis of Lochner, Buck is an easy case, as it was for Holmes. The legitimate "end" that the law purportedly served was "public welfare." The Court should not "ascertain exactly how far the government can go." We do not have to worry about Carrie Buck's liberty to be free from forcible sterilization because there is no "clear textual basis" for such liberty, any more than the liberty to teach German, to guide the upbringing of one's own children, to marry, or to have access to potentially life-saving drugs-- none of which appear in the Constitution in bullet-point form. Virginia may sterilize Carrie Buck. Q.E.D.
Holmes' approach in Buck represents the status quo today. It is positively required under the so-called rational basis test, the default standard in constitutional cases. As I noted in an exchange with Ed Whelan, the same principle that allowed the government to sterilize Carrie Buck for no good reason is at work every time judges rubber-stamp protectionist regulations, sign off on the bulldozing of neighborhoods for economic development, or rationalize their way into upholding the Affordable Care Act. The results of decades of judicial abdication should appall anyone who thinks that constitutional rights are not mere social permissions, to be given and taken away by legislative majorities, aided and abetted by passive judges.
There is, however, an alternative approach. It holds that creating a master race is in fact not an "appropriate and legitimate" end of government--that the government can only act in pursuance of public-oriented ends and in a manner consistent with the individual rights of all. It holds that the "mere assertion" that sterilizing Carrie Buck promoted public health should not have been taken at face value. It holds that Carrie Buck's freedom to peacefully pursue her own happiness without having her fallopian tubes severed for eugenic purposes was entitled to a modicum of judicial respect, independently of whether it is spelled out in the text of Holmes' empty, amoral, Ninth-and-Fourteenth-Amendment-shorn Constitution.
That is the alternative that judicial engagement offers. It is not mere wishful thinking-- it is our birthright. Every one of us is entitled to an honest, reasoned explanation when the government requires us to obey a law that we might not agree with, to ensure that that law preserves our liberty rather than depriving us of it. Three generations of judicial abdication are enough.