Pope John Paul II, freedom, and constitutional law.

AuthorMyers, Richard S.

INTRODUCTION

This is an important conference in the history of the law school. (1) The thought of Pope John Paul II was extremely important in the formation of the Ave Maria School of Law. Dean Bernard Dobranski and other law school leaders were involved in the discussions of Ex Corde Ecclesiae (2) and the nature of Catholic higher education that took place throughout the 1990s. (3) Pope John Paul II's encyclicals in the 1990s, particularly Centesimus Annus, (4) Veritatis Splendor, (5) Evangelium Vitae, (6) and Fides et Ratio, (7) influenced the thinking of those involved in these efforts. (8) Many of the ideas developed at that time came to fruition in the founding documents of Ave Maria School of Law. (9)

One thing that struck me during that time was how these encyclicals seemed to respond directly to developments in the constitutional law of the United States. This is not as surprising as it might at first appear. Particularly in certain areas of American constitutional law (substantive due process is perhaps the best example), the Supreme Court seems to reflect strains of thought prevalent in the broader culture. (10) The Court's opinions engage profound issues such as the nature of freedom, the value of human life, and the relationship between religion and political life. The Pope's encyclicals of this era, which directly engage currents of modern thought, speak almost directly to the same issues.

In this Article, I will briefly describe certain trends in American constitutional law, with a particular focus on the doctrine of substantive due process. These trends reflect seriously misguided approaches. The Court has, to a certain degree, absorbed the worst aspects of modern culture. In certain opinions, the Court has embraced an extreme form of moral autonomy and the privatization of religion. These views, which have not yet completely carried the day in the lower courts, have serious inadequacies, and are ultimately threatening to the individual freedoms they purport to protect. Pope John Paul II's writings offer a helpful alternative; his thought emphasizes the link between freedom and truth, and the need to understand freedom within the limits of the objective moral law. This is a perspective we would do well to consider as we think through these issues in constitutional law and in public policy debates outside the courts.

  1. SUBSTANTIVE DUE PROCESS AND A MISGUIDED UNDERSTANDING OF FREEDOM

    The modern doctrine of substantive due process is complex, and a full treatment would require several full-length articles. (11) In brief, the Due Process Clause of the Fourteenth Amendment provides that "[n]o state shall ... deprive any person of life, liberty, or property, without due process of law." (12) Although this clause sounds "procedural," the Court has long used the doctrine of substantive due process to "hold[] unconstitutional state statutes that violate a 'liberty' interest the Court believes is protected by the clause, regardless of the manner in which the deprivation Occurs." (13) This doctrine, "which affords constitutional protection to individual rights claims without a clear textual warrant," has long been controversial. (14) The main disagreement has been about how to define the "fundamental rights" or "liberty interests" that deserve heightened constitutional protection.

    1. Two Approaches to Substantive Due Process

      In the modern era of substantive due process (since the 1965 decision in Griswold v. Connecticut (15)), the Court has vacillated between a narrow and a broad approach to deciding what constitutes a "fundamental right," typically the key inquiry in such cases. Neither approach is strictly textual. (16) Both frequently pay due homage to Justice Harlan's dissent in Poe v. Ullman. (17) That opinion has assumed near canonical status, given how frequently it is cited in Supreme Court opinions, (18) confirmation hearings for nominees to the Court, (19) and scholarly commentary. (20) Its ubiquity in substantive due process opinions makes it a useful focal point for distinguishing the two approaches to that doctrine.

      Many opinions contain the following obligatory quote:

      Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint. (21) As was once said about a passage from Justice Cardozo, "This is prose so beautiful that it seems almost profane to analyze it," (22) which I think is why Harlan has proven so popular. His language sets a tone for further inquiry but does not provide much specific guidance. With its denial of formulas and reference to a living tradition, however, it has come to stand for a broad approach to substantive due process, and is typically rejected by those favoring a more conservative methodology.

      1. The Narrow Approach

        Under the "narrow" or "conservative" approach to substantive due process, the Court asks whether a claimed liberty is, one, "deeply rooted in this Nation's history and tradition" (23) and, two, "implicit in the concept of ordered liberty" such that "neither liberty nor justice would exist if [it] were sacrificed." (24) Under this conservative view, the Court defines the liberty narrowly and is quite reluctant to expand the category of fundamental rights. (25)

        The conservative approach is perhaps best expressed in cases such as Bowers v. Hardwick (26) and Washington v. Glucksberg. (27) In Glucksberg, for example, the Court rejected the claim that there was a fundamental right to assisted suicide protected by the doctrine of substantive due process. (28) Chief Justice Rehnquist's opinion was all about judicial restraint and deference to history and tradition. (29) It rejected reliance on Harlan's approach, (30) and, although it stated the familiar two-pronged method in defining liberty, (31) the opinion primarily focused on the first prong, history. Its methodology--"careful description" of the asserted fundamental liberty interest, objective decision making, and emphasis on judicial restraint and caution (32)--avoided general abstract reasoning about the nature of liberty. (33) The Court acknowledged the claim that earlier cases had set forth a right to "self-sovereignty" and "personal autonomy," but disclaimed any interest in engaging this sort of inquiry. (34) Planned Parenthood of Southeastern Pennsylvania v. Casey, (35) perhaps the most famous example of broad due process reasoning, was given almost a back-of-the-hand treatment.

      2. The Broad Approach

        In contrast, under the "broad" or "liberal" approach, the Court does not emphasize judicial restraint. Rather, it engages in an abstract discussion of the nature of liberty, a wide-ranging inquiry untethered from historical moorings. When it follows this approach, the Court is far more willing to accept "new" fundamental rights--such as abortion or some sort of sexual license. The most famous example is perhaps the Court's "mystery" passage in Casey, (36) which I will discuss below. (37)

        Proponents of this approach rely on Harlan, but his Poe dissent does not necessarily imply a liberal methodology. In the hands of someone like former Chief Justice Rehnquist or Justices Scalia and Thomas, Harlan's approach might not be so objectionable. It is sometimes forgotten that Justice Harlan's opinion in Poe endorsed governmental regulation of traditional morality. He stated that he did "not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced." (38) He also seemed to accept state laws prohibiting abortion. (39) After Roe v. Wade, (40) this led to a variety of strained efforts to explain how Justice Harlan's viewpoint harmonized with the Court's opinion. (41)

        Nevertheless, the early modern cases on substantive due process (such as Griswold), display a strain of moral relativism. (42) While these early cases tried to make a nod to history and tradition, (43) this was completely unconvincing, particularly in the context of abortion. (44) Justice Brennan's opinion in Eisenstadt v. Baird (45) and Justice Blackmun's dissent in Bowers (46) are early examples of an individualistic morality, but the fullest expression of this came in Casey. (47) The Casey joint opinion clearly indicated that the Court was not doing textual analysis, and that the inquiry into the nature of liberty would not be constrained by history and tradition and concrete examples. The Court, citing the key passages from Harlan but without a sense of restraint, stated that it would exercise "reasoned judgment" about the nature of liberty. (48) The approach was abstract, and concluded with the infamous "sweet-mystery-of-life passage." (49) There, the Court stated:

        [M]atters[] involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of...

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