The Proper Role of Equality in Constitutional Adjudication: The Cathedral’s Missing Buttress
abstract. The most difficult and divisive issue in American constitutional law is how to deal with fundamental rights that are not specifically protected in the Constitution. At times, courts have afforded such rights near-absolute protection against infringement. At other times, courts have declined to provide such rights any constitutional protection. Both approaches are misguided. Instead, as argued by Justices Antonin Scalia and Robert H. Jackson, and Professor John Hart Ely, laws infringing these rights should be invalidated if they burden only some in society while leaving the rights of the enacting majority unimpeded.
This Feature begins by describing the two sorts of protections the Constitution affords to enumerated fundamental rights. Some rights are given full “libertarian” protection, with any infringement subject to close scrutiny. But others, such as the right to property, receive only “egalitarian” protection. Private property may be taken for public use so long as all of society is burdened by the requirement that compensation be provided.
This Feature argues that the Constitution should be read to extend similar egalitarian protections to any number of unenumerated fundamental rights. Encumbrances on these rights run afoul of the Constitution’s egalitarian guarantees if the burdens they impose are unequal. Protection of such rights is not available under the current reading of the Equal Protection Clause because violations of these rights are often not the result of discriminatory intent but rather the enacting majority’s desire to achieve results it deems good without bearing their costs.
This Feature seeks to return the Constitution’s egalitarian guarantees to the purpose contemplated by the Framers. It argues that a law violates these egalitarian protections if a law infringes unequally and substantially the fundamental rights of individuals not positively affiliated with the majority. It outlines factors in evaluating proper judicial remedies for impermissibly unequal laws. And it provides the doctrinal constitutional bases for such judicial action.
author. Senior Judge, United States Court of Appeals for the Second Circuit; Sterling Professor Emeritus, Professorial Lecturer, and former Dean, Yale Law School. An earlier version of the Feature was delivered in April 2023 as the Thomas F. Ryan Lecture at Georgetown University Law Center. The support and suggestions given to me by Georgetown’s dean, William M. Treanor, and its faculty were wonderful and more than one could hope for. I am immensely grateful to my former student and law clerk, Nathaniel Urban, without whose help this Feature could not have been written. His work was so great and so all-encompassing that he could easily qualify as a coauthor. Any errors in the Feature, however, remain mine alone. My judicial assistant, Natalie Stock, was, in this as in all that I do, essential. She was always ready to help in correcting and rewriting, and in enabling me to find the time to write, this Feature.
Introduction
The most difficult, divisive, and persistent issue in American constitutional law is the proper role of courts in the protection of rights that are viewed by many as fundamental but nonetheless are not specifically enumerated in the Constitution.1 At times, courts have afforded such rights full constitutional protection, either directly or by putting them in the penumbra of protected rights. At other times, courts have decried such protections as undemocratic, declining to offer protection or retracting protection from the right in question. I write to discuss the proper role of courts in the protection of such rights.
In one of Justice Scalia’s most interesting opinions—his concurrence in Cruzan v. Director, Missouri Department of Health—he wrote that due process (and like constitutional mandates) should not protect fundamental rights that are not expressly specified in the Constitution.2 He then stated that fundamental but unenumerated rights are protected by “the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.”3 As to such rights, he said, whether a violation is permissible should turn on whether the violation in question applied to only some people in society or to all.4
Justice Scalia’s dramatic claim echoes John Hart Ely’s broader point in Democracy and Distrust that “the choosing of values is a prerogative appropriately left to the majority (so long as it doesn’t by law or administration provide different rules for others than it does for itself).”5 Likewise, Justice Jackson, writing in concurrence in Railway Express Agency, Inc. v. New York, contended that “[c]ourts can take no better measure to assure that laws will be just than to require that laws be equal in operation.”6 Scalia, Ely, and Jackson each believed that judges would have too much power if courts were permitted to protect unenumerated rights from infringement when the laws restricting those rights did not violate equal protection.7
On this view, our society is fundamentally libertarian as to only very few rights: it permits infringements of many fundamental rights when the whole polity requires such infringements for social-democratic, communitarian reasons.8 Just a limited set of rights—most notably, speech and religion—are held to be fully inalienable and thus deserving of explicit constitutional protection.9 But our society is also fundamentally egalitarian: infringements of most fundamental rights are acceptable only if all of society shares the burden of such infringements.
The Ely-Jackson-Scalia position thus suggests that our constitutional structure adopts two of the three principles of the French Revolution: liberté and égalité.10 As to the third—fraternité, or “communitarianism,” as I choose to refer to it—our constitutional structure permits the legislature to promote this principle, but only so long as its legislative acts (1) do not infringe a few fundamental rights, namely those rights provided explicit libertarian constitutional protection; and (2) do not unequally burden other fundamental rights by infringing these rights only as to some—put otherwise, such legislative acts must not violate the Constitution’s egalitarian requirements.
Thus, Ely, Justice Jackson, and Justice Scalia seem to have believed that the Constitution should empower judges to protect unenumerated fundamental rights when the majority enacts a policy that infringes such rights only as to some and does not burden the majority.11 On the other hand, in their view, even fundamental rights can be limited so long as the violative policy infringes the rights of all, including the enacting majority. By “majority,” I believe these three meant (and I shall use the term to mean throughout this piece) the enacting governmental actors—powerful parties, as their ability to enact policy demonstrates—in contrast to a “minority,” that is those outside of power with whom the majority does not identify.
So far I am in strong agreement with Ely, Justice Jackson, and Justice Scalia. Majorities are better deciders than judges of what policies are worth their costs. Our Constitution has been read to give courts the power to protect very few specific rights.12 As to most rights, even crucial ones, our Constitution trusts democracy more than a judicial priesthood. But as Scalia and Ely say, the democratic majority can be trusted only when that majority is itself willing to bear the burden that limiting fundamental rights imposes. With no cost imposed on us or those close to us, nearly all of us would be willing to place even heavy burdens on an unseen minority in order to benefit ourselves. By contrast, a majority that is willing to burden itself is better positioned to identify the limits of rights than unaccountable judges are. This is the combination of liberty and equality that I, like Ely, Jackson, and Scalia, believe our Constitution establishes.
But to date, there has been no constitutional doctrine—grounded in the Equal Protection Clause or in any other constitutional provision—that protects unenumerated fundamental rights as Ely, Justice Jackson, and Justice Scalia say is needed. This absence is the source of many of our present constitutional conflicts. This Feature seeks to fill that void, to provide what I call the missing buttress, and explain the role of courts in doing so.13 And it seeks to be democracy-enhancing by ensuring that every policy’s costs are truly understood by the enacting majority.
Ely and Justice Scalia assert that unenumerated fundamental rights should be protected by the Equal Protection Clause.14 In Part I, I will explain why that Clause, as currently understood, cannot do the job that I agree must be done.15 In Part II, I will argue that the Framers gave egalitarian, rather than libertarian, protection to one right that they thought needed explicit constitutional protection: the right to property. I will suggest that the protection given to property is a model for the protection of other fundamental rights that, unlike property, are not specifically enumerated in the Constitution.
Recognizing that most laws acceptably burden some people more than others, I will detail in Part III when the protection of the Constitution’s egalitarian values requires judicial intervention and when no such intervention is needed. Specifically, I will argue that courts should intervene only if (1) a law infringes rights that, though not specified in the Constitution, are nonetheless fundamental; (2) such an infringing law substantially harms only a portion of the population; and (3) those harmed are not positively affiliated with the majority. I will then discuss how courts should respond if this inquiry concludes that a policy is impermissibly inegalitarian. Placing the same cost on the majority as on those whom the law harms is rarely possible (but may be available in some few cases, such as mandatory DNA collection or military service). Indeed, even compensating landowners financially is not the same as leaving them on their land. Where placing exactly the same burden on all is difficult or impossible, different types of burdens may be sufficiently similar in category and degree to ensure that the majority has not violated the Constitution’s egalitarian commands. Such a finding ensures that the majority bears an appropriate burden and that the burdened do not feel unequally treated. In such cases, which I will discuss through various examples, the majority will have adequately made a “show of earnest” by imposing a burden on itself.
Judicial intervention, even where justified, should vary based on the circumstances. I will argue that courts will rarely be able to impose a specific show of earnest. Instead, they usually should play the crucial role of determining whether the show of earnest chosen by the legislature is sufficient. Additionally, courts will have to decide the often-difficult question of whether an egalitarian law must be struck down immediately or left in place with a requirement that the legislature impose an adequate show of earnest in short order.
In Part IV, I will discuss a number of examples of infringements of rights—abortion restrictions, rent control, DNA gathering, pretextual traffic stops, and integrational busing—that I believe might require judicial interventions to ensure that their burdens are not placed only on those who are not affiliated with or linked to the majority.16 These examples may be appealing at times to the left and at times to the right. In other words, my approach is not an ideological or political one. Instead, it goes to the proper structure of democracy.17 I will argue that though the issues involved are difficult to resolve, courts already frequently grapple with them.
Finally, and most importantly, in Part V, I will discuss the constitutional and doctrinal bases for my argument and the limited judicial power it entails. In this respect, I will address two bases. The first is a broadened reading of the Equal Protection Clause. The second relies on the egalitarian principles found in any number of constitutional provisions and throughout our Bill of Rights. I will conclude by explaining again why this approach is more desirable and effective than the status quo, both in restraining how courts treat fundamental unenumerated rights and in allowing them to protect such rights when they are deserving of protection.