DOBBS V. JACKSON HEALTH: CHESTERTON'S FENCE V SUBSTANTIVE DUE PROCESS
Is there a Constitutional Right to be married to more than one person? Answering this question will help us understand the underlying controversy behind the Dobbs decision and reforms that could resolve the acrimony and dissension.
Polygamy And The Right To Privacy
Muslims believe that a man can have up to four wives, and several hunter-gatherer societies have men with more than one wife. Polygamy (not just harems and concubines) was extremely common for the aristocracy in Asia.
Today in the United States, there are many examples of 3 or more persons engaging in loving, Polyamorous Relationships who wish to be married. Of course, there are Fundamentalist Mormons who still practice polygamy without legal sanctions of plural marriage.
Legal enforcement of the institution of marital monogamy for all social classes has the strongest tradition in Western Europe and therefore could be considered as a cultural bias and domination over cultures from colonized peoples. This fact could jeopardize the validity of the prohibition against issuing a marriage license to persons sharing the same spouse.
In the 1879 case, Reynolds v The United States, the Supreme Court was considering the Constitutionality of a Federal Law prohibiting Polygamy and whether it was a violation of the Free Exercise Clause of the 1st Amendment. This analysis of the decision contains an excerpt from the opinion:
"Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and African people."'' The Court stated that "from the earliest history of England polygamy has been treated as an offence against society."
“While Reynolds is an important precedent, expressing the belief/action distinction for the first time, the reasoning behind the Court's arguments against polygamy is suspect. The Court claimed that the practice of plural marriage had always been "odious," yet "never quite explained why [it] was a threat to the public well-being."' 37 The Mormons of Utah were prosperous, and the women were more independent than many women on the East Coast. 3 1 In passing judgment on polygamy, however, the Supreme Court failed to acknowledge any beneficial aspects of the practice.
In retrospect, much of the discussion in Reynolds mirrored the anti-polygamy sentiment prevalent at the time.”
This opinion is seething with contempt for the “backward norms” of non-Western, non-Christian cultures.
In the 1946 case, Cleveland v United States, the Supreme Court took up the issue of polygamy again. In his dissent against the majority that condemned polygamy, Judge Murphy wrote:
“We must recognize, then, that polygyny, like other forms of marriage, is basically a cultural institution rooted deeply in the religious beliefs and social mores of those societies in which it appears. It is equally true that the beliefs and mores of the dominant culture of the contemporary world condemn the practice as immoral and substitute monogamy in its place. To these beliefs and mores I subscribe, but that does not alter the fact that polygyny is a form of marriage built upon a set of social and moral principles. It must be recognized and treated as such.”
Based upon the Progressive views of the Doctrine of Substantive Due Process, it would be easy to apply the Equal Protection and Privacy Rights logic used in Obergefell v Hodges to find an unenumerated right for the State to recognize marriages that included 3 or more partners.
What is the over-under bet on the number of years before the 9th Circuit over-rules the State of Arizona’s prohibition against polygamy? Four years?
While many Americans tolerate Polyamory, they would recoil at any attempt to sanction these relationships with a marriage license beyond one spouse. Although Progressive Jurisprudence suffered a setback in Dobbs, they will likely return with a Polygamy case to advance their philosophy to protect unpopular rights against popular opposition.
Doctrine of Substantive Due Process
According to Erwin Chemerinsky, whenever the government deprives a person of life, liberty, or property, the Courts must ask, Is this deprivation justified by a sufficient purpose? This is the essence of the Doctrine of Substantive Due Process (SDP) that Justice Clarence Thomas recently derided in his concurring opinion in Dobbs v Jackson.
In the cases of Gay Marriage (Obergefell v Hodges), Contraception (Griswold v Connecticut), Interracial Marriage (Loving v Virginia) and Abortion (Roe v Wade) the Court found that the Right to Privacy was being violated, and there was no rational basis or sufficient countervailing purposes to deny this right in these cases.
Progressive Constitutional Law professors and jurists make a compelling case for SDP. They argue that Rights are things that are intended to be outside the bounds of the Legislature. Therefore, it naturally falls to the Courts to decide which unenumerated rights should be elevated in status to become Judicially-enumerated through case law, and thereby receive added protections.
The Set and Subsets of Common-Law Civil Rights
During the debates between the Federalists and the Anti-Federalists from 1787 - 1789, both sides acknowledged the existence of a Set of unenumerated Common-Law Civil Rights. The Federalists claimed that these Rights were implicitly protected by the traditions of the Common Law and the every day way of living life. In Federalist No. 84, Hamilton wrote that a Federal Bill of Rights was redundant, unnecessary, and would imply that any rights not listed were not protected.
The Framers of the Constitution had the idea that there was a population of all Common-Law Civil Rights. Then there were the Rights enumerated in the State and Federal Constitutions, and then there were the unenumerated Rights. Because Common Law evolves over time, new Rights have evolved and others discarded as society changed.
Rights can be in conflict with each other, and it is the job of the Congress, State Legislature, or City Council to resolve these conflicts. For example, we have a right to be free of excessive noise that disrupts the enjoyment of life. However, that does not mean that we have a Constitutional Right to outlaw the use of jack hammers or leaf blowers.
In Chemerinsky’s formulation, there is a rational basis for occasionally depriving someone to the Right to Be Free of Excessive Noise when it furthers a competing need for repairing sewer pipes under the road or permitting the use of leaf blowers at decibel levels below 110 between 8 am and 5 pm when most people are not sleeping. In contrast, according to Chemerinsky and other SDP Proponents, there is no rational basis for the State to refuse issuing a marriage certificate to a same sex couple. In these situations, it is proper for the Judges to intercede and repeal this violation of an unenumerated right and convert it into a kind of enumerated right.
I label this new kind of enumerated right as a Judicially-Enumerated Right (JER). We can visualize the Rights equation as:
Common-Law Civil Rights =
Enumerated Rights in the Federal Constitution +
Enumerated Rights in the State Constitutions +
Federal Judicially-Enumerated Rights +
State Judicially-Enumerated Rights +
Unenumerated Rights that could one day become enumerated
Conservatives like Justice Thomas deride the JER in SDP as “legislating from the bench.” The reason is because, although The Framers added the 9th Amendment to acknowledge the existence of unenumerated rights, they added the 10th Amendment so that “Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”
In 1789 The 10th Amendment was the protection against Federal Courts’ intruding into the sphere of unenumerated rights. However, Section 1 of the 14th Amendment undermined this 10th Amendment barrier against the intrusion of Federal Courts with the “Privileges or Immunities” clause, and the due process clause (“..nor shall any State deprive any person of life, liberty, or property without due process of law…”).
These clauses elevated the authority of Federal Courts to render judgments upon the actions of State Legislatures beyond those already in conflict with Rights enumerated in the First through the Eighth Amendments. The unenumerated Rights were fair game in the Federal Courts.
This erosion was recognized in an early interpretation of the “Privileges or Immunities” Clause of the 14th Amendment. In Garnes v. McCann, Ohio Supreme Court., in 1871, Judge John Day interpreted the clause to only protect enumerated constitutional rights such as those listed in the first 8 Amendments in the Bill of Rights, but not unenumerated common-law civil rights. He wrote:
“This [case] involves the equity as to what privileges or immunities are embraced in the inhibition of this clause. We are not aware that this has been as yet judicially settled. The language of the clause, however, taken in connection with other provisions of the amendment, and of the constitution of which it forms a part, affords strong reasons for believing that it includes only such privileges or immunities as are derived from, or recognized by, the constitution of the United States. A broader interpretation opens into a field of conjecture limitless as the range of speculative theories, and might work such limitations of the power of the States to manage and regulate their local institutions and affairs as were never contemplated by the amendment.” (emphasis added)
This prescient opinion explains how the Progressives’ School of the Living Constitution arose. The pact between the Anti-Federalists and the Federalists, enshrined in the 10th Amendment, was torn up by later interpretations of the 14th Amendment. This is why the Supreme Court could justify indulging in legislating from the bench by using the Doctrine of SDP. In 1871, even John Day could not have imagined the extent to which the 14th Amendment would be exploited to create Judicially-enumerated rights for Gay Marriage and Abortion.
Chesterton’s Fence v Substantive Due Process
Chesterton's fence is the principle that reforms should not be made until the reasoning behind the existing state of affairs is understood. The following quotes are from Chesterton's 1929 book, The Thing: Why I Am a Catholic, in the chapter, "The Drift from Domesticity":
“In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, 'I don't see the use of this; let us clear it away.' To which the more intelligent type of reformer will do well to answer: 'If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it….
“But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.”
This is the touchstone of a Conservative Legal Philosophy that turns Chemerinsky’s formula for SDP completely around. Based upon this philosophy, the burden of proof for repealing the law in place of a new Judicially-enumerated Right falls upon the Judge, or the plaintiff claiming a violation of their rights. In contrast, applying SDP the Legislators have the burden of proving the existence of a “rational basis” to the Court to explain why their laws should not be repealed.
The Judicial Earthquake of Dobbs v Jackson Health Opinion
In the Dobbs v Jackson majority opinion, Justice Samuel Alito wrote that the Right of the Unborn Child was competing with the Mother’s Right to Privacy. There was nothing novel in this exposition of competing Rights because it was also considered by the Court in Roe v Wade.
However, when Judge Alito wrote that it was the job of the Legislatures, and not the Courts, to negotiate these competing Rights, he was striking a huge blow against the Judiciary’s Primacy and Power that the proponents of SDP have arrogated to themselves for almost sixty years. Because the SDP proponents saw themselves as the bulwark against the Legislatures threatening the Rights of the People, they could never imagine themselves as agents of obstruction, harm and injury against the people.
Judge Alito’s money quote:
“Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life.” Roe, 410 U. S., at 150; Casey, 505 U. S., at 852. But the people of the various States may evaluate those interests differently. The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated. Pp. 11–30. (3)” (emphasis added)
The Earthquake was not that Roe v Wade was struck down. The earthquake was that the Judiciary lost its primacy in opining about unenumerated Rights through the Doctrine of SDP. Judge Alito invited the Congress and State Legislatures to the table to resolve the conflict of Rights, effectively invoking Chesterton’s Fence as a guiding Legal Principle.
The Hubris of Substantive Due Process Proponents
The Doctrine of SDP empowers Judges to legislate from the bench and to exercise nearly unrestrained, raw power. By definition, unenumerated rights are not listed in the Constitution. They’re not even written in a book for everyone to read. Therefore, invoking an unenumerated right to repeal a statute appears arbitrary. This is especially true when a large, persistent minority of dissenting judges have sharp disagreements with the pronouncements of the majority.
Many SDP proponents believe that there are circumstances (like in Roe v Wade) where a Right is not popular with the public, where it has not been widely recognized in the States, and yet it is still necessary for the Courts to Judicially-enumerate this right.
The Hubris of the SDP proponents is that they believe that the 9th and 14th Amendment has given them all the authority they’d ever need to find any right at any point in the future that our society would ever need to have recognized.
In an interview with Don Franzen, Professor Akhil Reed Amar said:
“I’m not saying that popularity is necessary for the protection of a right, because if it’s in the text, it’s in the text. That’s enough. But if it’s not in the text, and the right is not popular, then in what sense is it a right of the people? So that’s my basic point, that the Ninth amendment says you can have more rights than the text allows, never less, but if you’re going to add rights, add rights that the people themselves believe in.” (emphasis added)
Regarding the unenumerated Rights in the Ninth Amendment, Professor Amar said:
“And what I say is, read it, and apply its seemingly plain meaning. It talks about rights of the people. Now how would we find rights of the people? And my claim is, look to the people themselves. Look to actual, lived experiences on the ground. And that doesn’t get you Roe v. Wade as written in 1973, but it does get you Griswold v. Connecticut and Gideon v. Wainwright.”
Professor Akhil Reed Amar advocates a more restrained form of SDP than most other SDP Proponents like Chemerinsky. His advocacy is grounded in facts on the ground and the lived experiences of the people as a wellspring for uncovering the unenumerated rights that deserve elevation to a JER.
However, Professor Amar’s position naturally leads to this question: If an unenumerated Right deserves to be elevated to a Constitutionally Enumerated Right, and it is truly a widespread practice among the people, then wouldn’t a Constitutional Amendment be preferrable to a Court decision as evidence that this right is truly widespread and lived among the People?
How Article 5 of the Constitution Spawned the Doctrine of Substantive Due Process
The Constitution sits above the Judiciary and the Legislature. The Constitution should be the best expression of the will of the people. The best way to take the Judiciary out of the business of Legislating from the Bench is for the will of the people to be frequently expressed through Constitutional Amendments to enumerate these unenumerated rights.
However, the Framers of our Constitution made a grievous error when they drafted Article 5 and required 3/4ths majority of the States approval for ratification of any Amendments. This threshold makes the use of Amendments far too rare, and it encourages the Legislatures and the Courts, with practical and pragmatic impulses, to engage in creative readings of the Constitution to pursue policies that are not enumerated in a plain reading of the text. This creative and loose construction gave us The Eerie Canal, the National Bank of the United States, and The Louisiana Purchase. These expansive interpretations of the Constitution were the precursors to Dred Scott v Sandford, Lochner v New York, Plessy v Ferguson, Roe v Wade and the SDP.
No surprise that SDP Proponents ignore role to be played by Constitutional Amendments as an alternative and proper mechanism for recognizing and expanding enumerated rights. For SDP Proponents, the Amendment Process is a superfluous and cumbersome mechanism because the only practical means of recognizing the unenumerated rights protected by the 9th and 14th Amendments is through JER.
How To Nurture A Political Consensus
Congress should immediately amend Article 5 of the Constitution to reduce the super-majority thresholds for ratification from 3/4ths of the States to 3/5ths, but then the Amendment would be submitted to the voters in each State in a Plebiscite for the formal ratification. Assigning each State and Washington, DC with the same number of Electoral Votes as for Presidential Elections, the Amendment would be ratified if 4/7th of the Electoral Votes supported Ratification. I would have the Electoral Votes assigned based upon majority vote in each Congressional District and assign 2 Electoral Votes to the winner of the Statewide vote — in other words, Electoral Votes without the Electoral College. The main principle is that the voters ultimately have a say in how the Constitution is amended.
I recommend one additional tweak to this revised Amendment Process. I recommend that we create Article 8 of the Constitution that is reserved for listing all of the Individual Rights that are separate from the other parts of the Constitution pertaining to the structure and operations of the branches of government. I would move the following Amendments into Article 8: 1st through 10th, 13th, 14th, 15th, 19th, 24th, and 26th.
I recommend that the super-majority threshold for passage of an Amendment to Article 8 out of Congress be reduced from 2/3rd to 5/9ths. The Ratification of an Article 8 Amendment occurs when voters in each State vote in a Plebiscite to support or oppose the Amendment. A 4/7th majority of Electoral Votes is required for Ratification.
In order to thwart attempts at using this Article 8 pathway to propose amendments that are not truly Article 8 Amendments that should instead require a 2/3rds vote, I recommend that Article 8 has a provision that states that:
“Any amendment to this Article that is germane to the structure and operations of the State and Federal governments or to matters covered in the other Articles of this Constitution shall have no effect.”
This provision should prevent “ratification arbitrage.”
Lowering the passage and ratification thresholds to a 5/9th super-majority of Congress for Article 8 Amendments to be presented to the voters in a Plebiscite makes it much easier for the will of the people to be expressed. Using the Amendment process more frequently improves the national consensus surrounding the elevation of an unenumerated right to become an enumerated right in the Constitution. This would also remove the most important rationale for SDP. Lowering the super-majority threshold for adding unenumerated rights to the Constitution relieves the pressure upon the Courts to employ SDP to establish Judicially-enumerated rights.
A Constitutional Amendment for the Rights of Marriage
This post began with the question: Is there a Constitutional Right to be married to more than one person?
Wouldn’t it make much more sense for the Citizens of the United States to define the Rights of Marriage in an Amendment to the Constitution rather than relying upon Judges to come up with their own ideas narrowly tailored to an opinion regarding polygamy? Just imagine the Congressional hearings to pass the Amendment and the debates in State Legislatures for Ratification. That process would be far superior to the process of Judicially-enumerated rights. Contrast the limited thinking of a few law clerks and five or more Justices of the Supreme Court with the hundreds of Members of Congress and the State Legislatures that would hear from people from all around the nation.
Below is a first draft of the kind of language that would be supported by a large majority of Americans:
Marriage is a voluntary, joint and several partnership of only two natural persons, sanctioned by the laws of the Government. While a person may be recognized as married to more than one person outside of the United States, only one spouse for any person will be recognized under the jurisdiction of the United States. No other spouse will be recognized prior to submitting evidence for divorce or death of the spouse that was previously recognized.
Marriages originating under the jurisdiction of the United States must meet the following conditions for recognition: At the inception of the marriage, they must be fully-informed, consenting persons, attained sixteen years, and not be consanguineous through parental descent, or as a sibling or first cousin. Neither person may be married to another person.
To ensure that both persons are fully-informed, the Government may require the following disclosures by both persons as a condition for the issuance of a Marriage License: health, fertility, and paternity information, financial records, and records of prior criminal convictions, marriages, and divorces. Excepting license fees, no additional restrictions may be imposed by any Government.
The first paragraph recognizes marriage as an exclusive partnership between 2 people. While people can get married outside of the United States to more than one other spouse, US Law will only recognize one person as your spouse. A man could live in a house with four women who have all born children for him, but only one of those women would be recognized as his spouse, and receive all the legal privileges afforded to a spouse. It doesn’t prohibit the practice of polygamy. It only withholds the legal sanction and protections for this practice beyond one spouse.
The second paragraph defines what a marriage originating within the US must look like, in contrast to what the kinds of marriage permitted in Saudi Arabia, Pakistan, or Nigeria. Prohibitions for marrying your parents, children, siblings or first cousin would receive widespread support.
The third paragraph allows States to force the parties to disclose background information as a condition for issuing a Marriage License to facilitate informed consent of the partners before they make their decision. The Courts should not be permitted to later disallow such disclosures as an “undue burden.” The clause, “ no additional restrictions may be imposed by any Government” effectively prohibits the Government from refusing to issue marriage licenses to same-sex and inter-racial couples.
A rational basis for prohibiting legally-sanctioned Polygamy is that monogamy promotes greater peace and harmony. The greatest source of violence and mayhem in societies around the world are young, unmarried males who are not burdened with the responsibility of supporting their children. Where dominant males can marry multiple females, the simple arithmetic of pairing to the opposite sex requires that some males will be unmatched. On the individual level this prohibition is an abridgment of free choice to forming lasting, socially-sanctioned relationships. However, at the wider social level, monogamy promotes superior social conditions for the greater good. I don’t believe that this kind of anthropological reasoning has been considered by past Proponents of SDP, and that is an indication of the narrow world views of Constitutional Lawyers and Professors. Undoubtedly this and other perspectives would be considered during hearings for a Constitutional Amendment.
This Draft Amendment makes the Loving and Obergefell precedents moot for Constitutional Case Law. Instead of relying upon JERs of Privacy to support the rights to interracial and gay marriage, we rely upon the clear text of a Constitutional Amendment that was supported by a wide swath of the country.
Conclusion
The onerous threshold for ratification of Constitutional Amendments in Article 5 of the Constitution has encouraged the adoption of the Doctrine of Substantive Due Process to recognize unenumerated rights that, in the opinion of many Judges and social commentators, have been encroached upon by State Legislatures and Congress.
With the recent appointment of Gorsuch, Kavanaugh, and Barrett to the Supreme Court, the conversion of unenumerated Rights into Judicially-enumerated rights has undergone greater skepticism and scrutiny by the Supreme Court. The Conservative Doctrine of Chesterton’s Fence as applied by Justice Alito in the Dobbs opinion has undermined the Primacy of Judges and Substantive Due Process when he asserted that State Legislatures will be superior vehicles for expressing the will of the people in matters of Abortion than the Federal Courts.
The Dobbs decision has exposed a large rift, and lack of consensus, regarding matters of Constitutional Law. The best way to restore the esteem of the Court in the eyes of the public is to reinvigorate the mechanism for Constitutional Amendments. Instead of relying upon the Courts to safeguard our unenumerated rights, we should make it easier for the will of the people to be expressed in Constitutional Amendments. The process for Amending the Constitution ensures that a wider range of opinions will be considered, and that the language of the Amendment will reflect a more durable consensus.
The adoption of Substantive Due Process has mired the Courts in controversy and dissension. The mere fact that protestors appear outside the homes of Supreme Court Justices and the Supreme Court building is an indication that something is seriously broken that needs to be fixed. It’s time to lift this burden off the shoulders of the Courts and transfer it to the Congress and Legislatures to adopt Amendments that convert unenumerated rights into Constitutionally-protected, enumerated rights.
David Barulich