Fidelity, basic liberties, and the specter of Lockner.

• Author: Fleming, James E.
• Position: Fidelity, Economic Liberty, and 1937

INTRODUCTION

I want to begin by frankly acknowledging that the group of scholars participating in the conference is more conservative than the crowd with whom I usually travel. Accordingly, at the outset, I want to say something ingratiating. Then, I will say something provocative. Here is the ingratiating part: economic liberties and property rights, like personal liberties, are fundamental rights secured by our Constitution. In fact, economic liberties and property rights are so fundamental in our constitutional scheme, and so sacred in our constitutional culture, that there is neither need nor good argument for aggressive judicial protection of them. Rather, such liberties are understood properly as "judicially underenforced norms," to use Lawrence G. Sager's term.(1) As Cass Sunstein would put it, their fuller enforcement and protection is secure with legislatures and executives in "the Constitution outside the Courts."(2)

Here is the provocative part: Recently, I was invited to participate in a Constitutional Commentary symposium entitled "Constitutional Chaos: The Joys and Hazards of Stomping Legal Butterflies." The symposium invited contributors to choose any single development in American constitutional history--such as an amendment, an episode at the Constitutional Convention, a case, or even a Supreme Court appointment--and to extinguish it utterly from legal memory. I declined the invitation. If I had accepted it, however, I would have written about Justice Scalia's and Chief Justice Rehnquist's sham conservative methodologies for interpreting the Due Process Clause, focusing on Michael H. v. Gerald D.(3) and Washington v. Glucksberg.(4) In prior work, I criticized Scalia's Michael H. methodology, arguing that we should chart a middle course between Scalia--the rock of liberty as "hidebound" historical practices--and Charybdis--the whirlpool of liberty as unbounded license.(5) In a symposium on "Constitutional Tragedies," I argued that it was a constitutional tragedy for the Supreme Court to hold in Glucksberg that the Constitution does not protect the right to die, including the right of terminally ill persons to physician-assisted suicide.(6)

Elsewhere, I also have defended a conception of the due process inquiry that has affinities to, although it differs from, Justice Harlan's formulation in his dissent in Poe v. Ullman,(7) the conception of the joint opinion in Planned Parenthood v. Casey,(8) and Justice Souter's formulation in his concurrence in Glucksberg.(9) This Article criticizes Rehnquist's formulation of the due process inquiry in Glucksberg--as requiring a "careful description" of the asserted right--showing that he uses a "whipsaw" between specific and abstract levels of generality to rig the description in order to make it easy for the Court to reject the right.(10)

True to its title--Fidelity, Basic Liberties, and the Specter of Lochner--this Article focuses on three points. The first relates to fidelity in constitutional interpretation, bringing the best conception of fidelity--integrity with the moral reading of the Constitution--to bear in interpreting the Due Process Clauses. The second relates to basic liberties, conceding that economic liberties and property rights are fundamental in our constitutional scheme, but arguing that they are properly judicially underenforced. The third relates to the specter of Lochner v. New York,(11) arguing that on the best understanding of what was wrong with Lochner--status quo neutrality--aggressive judicial protection of economic liberties would involve illegitimate "Lochnering," but that aggressive judicial protection of personal liberties does not. This Article merely will sketch the lines of argument that I plan to pursue in further work. Before outlining these points, I shall take up Lochner, 1937, and the flights from substance in constitutional theory.(12)

A specter is haunting constitutional theory--the specter of Lochner.(13) In the Lochner Era, the Supreme Court gave heightened judicial protection to substantive economic liberties through the Due Process Clauses.(14) In 1937, during the constitutional revolution wrought by the New Deal, West Coast Hotel Co. v. Parrish(15) officially repudiated the Lochner Era, marking the first death of substantive due process.(16) Nevertheless, the ghost of Lochner has perturbed constitutional theory ever since, manifesting itself in charges that judges are "Lochnering" by imposing their own substantive fundamental values in the guise of interpreting the Constitution.(17)

The cries of Lochnering have been most unrelenting with respect to Roe v. Wade,(18) which held that the Due Process Clause of the Fourteenth Amendment protects a realm of substantive personal liberty or privacy broad enough to encompass the right of women to decide whether or not to terminate a pregnancy.(19) In a well-known critique, The Wages of Crying Wolf: A Comment on Roe v. Wade, John Hart Ely attacked the Court for engaging in Lochnering, arguing that to avoid doing so it must confine itself to perfecting the processes of representative democracy,(20) as intimated in Justice Stone's famous footnote four of United States v. Carolene Products Co.(21)

Despite these cries, Casey officially reaffirmed the "central holding" of Roe instead of marking the second death of substantive due process by overruling it.(22) In an apoplectic dissent, Scalia blasted the Court for continuing to engage in Lochnering, protesting that the Court must limit itself to giving effect to the original understanding of the Constitution, narrowly conceived.(23)

Ely's and Scalia's critiques illustrate the two responses to the specter of Lochner that have dominated constitutional theory since West Coast Hotel Co. Both strategies have been widely criticized for taking "pointless flights from substance": the flights to process and original understanding, respectively.(24) The substance from which these dominant responses are said to flee is not only substantive liberties like privacy or autonomy, but also substantive political theory in interpreting the Constitution. These flights are said to be pointless because perfecting processes and enforcing original understanding inevitably require the very sort of substantive constitutional choices that these strategies are at pains to avoid.

After Casey, the long-anticipated second death of substantive due process is unlikely to come anytime soon--unless it came in Washington v. Glucksberg.(25) But Glucksberg is probably less analogous to West Coast Hotel Co. than to San Antonio Independent School District v. Rodriguez.(26) Instead of overruling important precedents, Glucksberg seems to say "this far and no further," while also attempting to gut the precedents of any vitality or generative force. Here, I should praise the brochure concerning this conference for accepting that substantive liberties are here to stay--and indeed the participants in the conference appear to accept that premise--rather than reopening the controversy whether substantive liberties as such are anomalous and illegitimate in our constitutional scheme.

What is needed is a theory of constructing the substantive Constitution that would beware of the specter of Lochner, yet also resist the "temptations" to flee from substance to process or original understanding.(27) In other works, I have outlined such a theory, in the form of a Constitution-perfecting theory, which reinforces not only the procedural liberties but also the substantive liberties embodied in our Constitution.(28) This theory constructs the substantive Constitution by securing the preconditions for self-government in our constitutional democracy in two senses: not only deliberative democracy, whereby citizens apply their capacity for a conception of justice to deliberate about the justice of basic institutions and social policies, as well as about the common good, but also deliberative autonomy, whereby citizens apply their capacity for a conception of the good to deliberate about and decide how to live their own lives.(29)

1. FIDELITY IN CONSTITUTIONAL INTERPRETATION

   1. Competing Conceptions of Fidelity and Interpretation of the Due Process Clause

      The topic of this conference, "Fidelity, Economic Liberty, and 1937," raises the question of fidelity in constitutional interpretation. In 1996, Fordham University School of Law held a symposium on "Fidelity in Constitutional Theory."(30) In that symposium, I argued that the question of fidelity raises two fundamental questions: "Fidelity to what?" and "What is fidelity?"(31) The short answer to the first--fidelity to the Constitution--poses a further question: what is the Constitution? For example, does the Fourteenth Amendment embody abstract moral principles or enact relatively concrete historical rules and practices? Does the Constitution presuppose a political theory of majoritarian democracy or one of constitutional democracy? The short answer to the second--being faithful to the Constitution in interpreting it--leads to another question: how should the Constitution be interpreted?(32) Does faithfulness to the Fourteenth Amendment require recourse to political theory to elaborate general moral concepts, or prohibit it and instead require historical research to discover relatively specific original understanding? And does the quest for fidelity in interpreting the Constitution exhort us to make it the best it can be, or forbid us to do so in favor of enforcing an imperfect Constitution?(33)

      Thus, the question, "What is the best conception of fidelity in constitutional interpretation?," ultimately poses the questions, "What is the Constitution and how should it be interpreted?" The question of fidelity is not a narrower question about how to follow the original meaning of the text or how to interpret the Constitution so as to fit the historical materials surrounding its framing and ratification. Those narrower questions...