Scrutiny Land.

• Author: Barnett, Randy E.
• Position: Presumption of liberty

Scrutiny Land is the place where government needs to justify to a court its restrictions on the liberties of the people. In the 1930s, the Supreme Court began limiting access to Scrutiny Land. While the New Deal Court merely shifted the burden to those challenging a law to show that a restriction of liberty is irrational, the Warren Court made the presumption of constitutionality effectively irrebuttable. After this, only one road to Scrutiny Land remained: showing that the liberty being restricted was a fundamental right. The Glucksberg Two-Step, however, limited the doctrine of fundamental rights to those (1) narrowly defined liberties that are (2) deeply rooted in tradition and history. In this Article, I explain how the ability to define accurately almost any liberty as broad or narrow improperly gives courts complete discretion to protect liberty or not as it chooses. I then describe an alternative that is suggested by the approach taken by the Court in Lawrence v. Texas: a general presumption of liberty. Not only is such an approach practical, it is also more consistent with the text and original meaning of the Constitution than is the Glucksburg Two-Step.

TABLE OF CONTENTS INTRODUCTION I. THE ORIGIN OF THE DOCTRINE OF FUNDAMENTAL RIGHTS II. PUTTING THE RABBIT INTO THE HAT: THE GLUCKSBERG TWO-STEP III. AN ALTERNATIVE TO FUNDAMENTAL RIGHTS: LAWRENCE V. TEXAS IV. THE PRESUMPTION OF LIBERTY CONCLUSION INTRODUCTION

Angel Raich is a seriously ill forty-one-year-old mother of two who, in 2002, sought an injunction allowing her to use cannabis to alleviate her intense pain as well as the life-threatening wasting syndrome from which she suffers. She initially prevailed in the Ninth Circuit, but the Supreme Court in 2005 rejected Angel's argument that applying the federal Controlled Substances Act ("CSA") to the personal cultivation, possession, and use of state-authorized cannabis for medical purposes was unconstitutional because it exceeded the power of Congress to "regulate Commerce ... among the several States." (1) On remand, Angel renewed her alternate theory that the CSA's complete ban on the medical use of cannabis violated the Due Process Clause of the Fifth Amendment by denying her fundamental right to preserve her life. In March 2007, the Ninth Circuit rejected this argument, effectively ending her five-year legal battle against the application of the CSA to seriously ill persons. (2)

The Ninth Circuit's rejection of Angel's constitutional claim shines a spotlight on a serious problem with the Supreme Court's current approach to protecting liberty under the Due Process Clauses of the Fifth and Fourteenth Amendments. Ever since the New Deal, the Supreme Court has limited the protection afforded by the Due Process Clauses to what it calls "fundamental fights." Unless the Court characterizes the liberty as "fundamental," it will not evaluate or "scrutinize" the government's claim that its restrictions on the liberty are truly necessary. With laws restricting mere "liberty interests" not deemed fundamental, the Court will blindly accept the government's claim that its restriction is "reasonable."

In short, a claimant challenging a statute needs a ticket into "Scrutiny Land" where the government must justify its restrictions on liberty. To get that ticket, a claimant must jump through the hoop of showing her liberty is fundamental. Otherwise, she automatically loses. The outcome of Angel's case, therefore, like all other due process cases, turned on whether the liberty she asserted was fundamental.

In this Article, I examine the doctrine of fundamental rights and propose an alternative, which the Supreme Court has already taken a step toward embracing, that would address its key flaws. Part I traces the evolution of the doctrine of fundamental fights from its inception in 1931 through its 1997 incarnation in Washington v. Glucksberg. Part II examines Glucksberg's alteration of the doctrine and demonstrates how the decision's method enables judges to avoid scrutinizing legislation whenever they wish. Part III describes the alternative route paved by Lawrence v. Texas, and Part IV builds on the Court's decision in Lawrence to propose an approach to substantive due process cases that would overcome the major weaknesses of the fundamental rights doctrine.

1. THE ORIGIN OF THE DOCTRINE OF FUNDAMENTAL RIGHTS

   The requirement that a right be fundamental before the government must justify interfering with the exercise of that right dates back to the 1930s. The requirement's origins can be traced to a presumption. The "presumption of constitutionality" was first used to reverse the scrutiny that the Progressive Era Court had been employing to assess the reasonableness of restrictions on liberty under the Due Process Clauses. In O'Gorman & Young, Inc. v. Hartford Fire Insurance Co., (3) the Court refused to strike down an insurance regulation, holding that "the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute." (4) Writing for a 5-4 majority, Justice Brandeis described the implication of this presumption:

   It does not appear upon the face of the statute, or from any facts of which the court must take judicial notice, that in New Jersey evils did not exist in the business of fire insurance for which this statutory provision was an appropriate remedy. The action of the legislature and of the highest court of the State indicates that such evils did exist. The record is barren of any allegation of fact tending to show unreasonableness. (5) In other words, the burden was on the person challenging the statute to establish its unreasonableness; otherwise, the legislation was deemed to be reasonable.

   The use of a robust presumption of constitutionality had been urged by James Thayer in an 1893 article in the Harvard Law Review entitled The Origin and Scope of the American Doctrine of Constitutional Law. (6) Thayer contended that "there is often a range of choice and judgment [and] in such cases the constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional." (7) Justice Brandeis's adoption of this approach in O'Gorman was triumphantly noted by Walton H. Hamilton, an economist on the Yale Law School faculty, an ardent New Dealer, and a sharp critic of the Progressive Era Supreme Court's constitutional skepticism toward social regulation. His hosannas are worth reading at length:

   The demand is to find an escape from the recent holdings predicated upon "freedom of contract" as "the rule," from which a departure is to be allowed only in exceptional cases. The occasion calls not for the deft use of tactics, but for a larger strategy. The device of presumption is almost as old as law; Brandeis revives the presumption that acts of a state legislature are valid and applies it to statutes regulating business activity. The factual brief has many times been employed to make a case for social legislation; Brandeis demands of the opponents of legislative acts a recitation of fact showing that the evil did not exist or that the remedy was inappropriate. He appeals from precedents to more venerable precedents; reverses the rules of presumption and proof in cases involving the control of industry; and sets up a realistic test of constitutionality. It is all done with such legal verisimilitude that a discussion of particular cases is unnecessary; it all seems obvious--once Brandeis has shown how the trick is done. It is attended with so little of a fanfare of judicial trumpets that it might have passed almost unnoticed, save for the dissenters, who usurp the office of the chorus in a Greek tragedy and comment upon the action. Yet an argument which degrades "freedom of contract" to a constitutional doctrine of the second magnitude is compressed into a single compelling paragraph. (8) O'Gorman shows that the process of weakening the Due Process Clause scrutiny of the Progressive Era Supreme Court began well before the election of President Roosevelt. (9) In 1929, President Hoover nominated Charles Evans Hughes to replace Chief Justice Taft. Hoover then nominated Owen Roberts to take the seat of Justice Sanford a week before O'Gorman was argued. With the Court presumably divided four to four, the case was held over for reargument so that Justice Roberts could participate. He and Hughes thereby determined the outcome of the case, which was decided 5-4. Thus, Hoover appointees led the abandonment of an across-the-board protection of liberty under the Due Process Clause exemplified by Lochner v. New York (10) before the New Deal even began. (11)

   Even so, after O'Gorman there still remained two potential routes to Scrutiny Land. The first was identified by the Court in 1938 in United States v. Carolene Products Co. (12) After reaffirming the existence of a presumption of constitutionality, (13) the Court created an exception to it in what became the most celebrated footnote in constitutional history: "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth." (14)

   Footnote four became famous because it created the two-tier protection of rights under the Due Process Clause that is the basis of the modern doctrine of fundamental rights. According to the first paragraph of footnote four, only a "specific prohibition"--that is, a limitation on a right that is enumerated--is the kind of prohibition that warrants shifting the presumption of constitutionality or, at least, narrowing its scope. (15)

   Little remembered today, however, is a second road to Scrutiny Land that once existed. In O'Gorman, Carolene Products, and...