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«Fordham Urban Law Journal Volume 24, Issue 3 1996 Article 5 Linking Genes with Behavior: The Social and Legal Implications of Using Genetic Evidence ...»

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Of course, proponents of the Bill of Rights advocated an explicit enumeration of certain fundamental rights to be protected from government infringement.38 Moreover, even opponents of amending the Constitution to add the Bill of Rights did not disagree with the natural rights philosophy; to the contrary, they opposed adding the Bill of Rights precisely because of that philosophy. Consistent with that philosophy, they believed that an express Bill of Rights was at best unnecessary and at worst dangerous. It was unnecessary because the Constitution did not-and, indeed, could notvest the new government with power to violate inherent individual rights. Worse yet, they considered an express Bill of Rights to be at least potentially dangerous, because the enumeration of certain rights could create an implication that no other fundamental rights were secure against government infringement.39 Specifically to counter any such "negative pregnant," the Ninth Amendment was included in the Bill of Rights, stating: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."'' 4 Consistent with the plain language of the Ninth Amendment and the underlying constitutional history, every Justice on the current Court and in modern history has agreed that the Constitution implicitly protects some unenumerated rights; 41 the Justices simply

37. U.S. CONST. preamble (emphasis added).

38. Stephen Macedo, Originalismand the Inescapability of Politics, 84 Nw. U. L.

REV. 1203, 1208 (1990) (noting that the Anti-Federalists insisted on an explicit enumeration of rights in the Constitution to "ensure the preservation of popular liberty").

39. Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 COLuM. L. REV. 1215, 1226 (1990) (stating that the "[F]ederalists responded that the inclusion of specific reservations of particular rights, as contemplated by the proposed bill of rights, was not merely unnecessary, but positively dangerous. A bill of rights would reverse the Constitution's premise that all not granted was reserved; instead, the government would hold all power except what was prohibited in the bill of rights").

40. U.S. CoNsT. amend. IX.

41. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 869 (1992) (O'Connor, Kennedy, Souter, JJ.) (recognizing "the constitutional liberty of the woman to have some freedom to terminate her pregnancy"); id. at 912 (Stevens, J., concurring/dissenting) (finding that "[t]he Constitution would be equally offended by an absolute


1997] disagree among themselves as to which such rights it protects. Justice Scalia himself has recognized the existence of implied fundamental rights,42 even in his JTS lecture. He said that when the Constitution's text is unclear, the benchmark for protected rights should be "what American society has traditionally accepted." But he was also willing to depart selectively from this asserted benchmark (just as he was willing to depart selectively from strict textualism).

The first question that this assertion by Justice Scalia triggered in my mind was actually asked by someone else in the audience at his lecture: What about such time-honored American traditions as outlawing interracial marriage, mandating segregated schools, and imposing sectarian prayers in public schools? Justice Scalia's answer to that question was disturbing in two respects. First, he answered only regarding interracial marriage. Therefore, maybe he would find, for example, that sectarian public school prayers are justified by tradition; indeed, his answer to another audience question indicated that to be the case, as I will discuss later.

Second, Justice Scalia said that anti-miscegenation laws violated the text of the Equal Protection Clause. But that is certainly not requirement that all women undergo abortions as by an absolute prohibition on abortions"); Dallas v. Stanglin, 490 U.S. 19, 24 (1989) (Rehnquist, J.) (finding a right of freedom of association); id. at 28 (Stevens and Blackmun, JJ., concurring) (finding a right of association); Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984) (noting, in a 7-0 opinion, that the "Constitution guarantees freedom of association... as an indispensable means of preserving other individual liberties"); Moore v. East Cleveland, 431 U.S. 494 (1977) (plurality opinion) (upholding the constitutional right to structure family living arrangements); Eisenstadt v. Baird, 405 U.S. 438, 463 (White, J. concurring) (finding a right to use contraceptives); Edwards v. California, 314 U.S. 160 (1941) (holding, without dissent, that the Constitution implicitly protects a fundamental right to interstate travel); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (reaffirming unanimously Meyer's holding of the right of parents to determine their children's upbringing); Meyer v. Nebraska, 262 U.S. 390 (1923) (holding, without dissent, that parents have a fundamental right to raise their own children).

42. Morse v. Republican Party of Virginia, 116 S.Ct. 1186, 1218 (1996) (Scalia, J., dissenting) (quoting Broadrick v. Oklahoma, stating that the Supreme Court must act whenever "rights of association [are] ensnared in statutes which, by their broad sweep, might result in burdening innocent associations." 413 U.S. 601, 612 (1973));

Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, 550 (1987) (Scalia, J., concurring) (agreeing that a California statute requiring California Rotary Clubs to admit women did not violate members' rights of association); Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993) (holding that the "right-to-interstate travel" is not impinged by anti-abortion protesters, whose actions limited respondents' intrastate travel); Turner v. Safley, 482 U.S. 78 (1987) (joining the Court's holding that inmates had a constitutionally protected right to marry).

FORDHAM URBAN LAW JOURNAL [Vol. XXIV obvious from the plain language of the clause itself,4 3 or from its history. Nor does the plain language" or history of the Equal Protection Clause clearly outlaw segregated schools. Even the Court's landmark decision invalidating such schools, Brown v. Board of Education, itself recognized this.4 6 Indeed, Justice Scalia's usual ideological ally, Chief Justice Rehnquist, a law clerk to Justice Jackson while the Court was considering Brown, notoriously urged Jackson to reject Brown's challenge to racially segregated public schools on this basis.47 Just as Justice Scalia selectively sanctions the Court's departure from tradition to uphold rights that are not clearly protected in the Constitution's text, he also has approved the Court's departure

43. One could plausibly argue that anti-miscegenation laws do not violate the Equal Protection Clause because they apply equally to any affected races; for example, whites are no more free to marry blacks than blacks are to marry whites. Indeed, courts rejecting constitutional challenges to these laws prior to Loving v. Virginia, 388 U.S. 1 (1967), had accepted this argument. See Pace v. Alabama, 106 U.S. 583 (1888) (finding no discrimination against any race in the statute because "[w]hatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same.").

If Justice Scalia rejects the reasoning of Pace, that should bode well for his analysis

of another type of marriage ban that might eventually trigger Supreme Court review:

the prohibition on same-sex marriages. If the Equal Protection Clause constrains any ban on marriages between members of two races, even though the ban applies equally to members of both races, then it should also constrain any ban on marriages between members of the same gender, even though the ban applies equally to members of both genders (i.e., both males and females are prohibited from marrying someone of the same gender). See Erik J. Toulon, Call The Caterer: Hawaii To Host First SameSex Marriage, 3 S. CAL. REV. L. & WOMEN'S STUD. 109, 133 (1993). Toulon notes that in Loving, the Court held that prohibitions on interracial marriage denied equal protection because such prohibitions discriminated by allowing a white man to marry a white woman while at the same time preventing a black man from marrying a white woman. Id. Toulon points out that this is the same analysis employed by the Supreme Court of Hawaii within the context of a ban on same-sex marriages in Baehr v. Lewin, 852 P.2d 44 (1993) (i.e., the court found that Hawaii's ban on same-sex marriages denied equal protection because the state conditions access to marriage on the basis of sex, allowing a man to marry a woman while at the same time preventing a woman from marrying a woman). Toulon, supra.

44. See U.S. CONST. amend. XIV, § 1 (stating that "[n]o State shall.., deny to any person within its jurisdiction the equal protection of the laws.").

45. 347 U.S. 483 (1954).

46. Id. at 489-90.

47. David J. Garrow, The Rehnquist Reins, N.Y. TIMES, Oct. 6, 1996, at 65 (noting that a "controversy [arose] when a Rehnquist memorandum arguing against any Supreme Court voiding of segregated schools and for a continued endorsement of the old doctrine of separate but equal was discovered in Jackson's fie on Brown v. Board of Educ. Rehnquist unpersuasively insisted-as he would again during his 1986 confirmation hearings for Chief Justice-that the memo represented an articulation of Jackson's views rather than his own.").


1997] from tradition to deny constitutional rights-specifically in the context of religious liberty. As I explain more fully below,4 8 Justice Scalia authored a 1990 decision that not only jettisoned the Court's modern precedents enforcing the First Amendment's Free Exercise Clause; moreover, it did so without any consideration of-and, indeed, in defiance of-the historical underpinnings of that Clause.

In short, Justice Scalia does not in fact demand strict adherence to tradition in answering questions not clearly resolved by the Constitution's text. Accordingly, his vaunted tradition-based approach to constitutional interpretation lacks the chief advantages that he ascribes to it: predictability, objectivity, and constraining judicial discretion.

A tradition-centered constitutional interpretation could not be justified even if it were consistently invoked and therefore did constrain judicial discretion. Contrary to Justice Scalia's deference to tradition, the Supreme Court has long recognized that "no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it."'49 Moreover, there is an even more fundamental problem with the notion of limiting constitutional freedoms to those encompassed by Justice Scalia's formulation, "what American society has traditionally accepted": it is a complete reversal of the concept of fundamental rights underlying our governmental system. Our government's founders wisely recognized the potential "tyranny of the majority," 50 in James Madison's famous phrase. Therefore, the government they created was not a pure democracy. To be sure, most public policy decisions are committed to the democratically elected, majoritarian legislative and executive branches of government. However, as the Constitution's framers recognized, there are some rights that are so fundamental that no majority, no matter how large, may deny them to any minority, no matter how small or unpopular.

This constitutional philosophy was most eloquently stated in the Supreme Court's landmark 1943 opinion in West Virginia Board of Education v. Barnette. Significantly, for present purposes, Barnette was a case involving religious liberty-specifically, the reliSee infra part IV.

49. Walz v. Tax Commission of New York, 397 U.S. 664, 678 (1970).

50. Clarence Page, Bork Shows His Grouchy Side, Again, CHI. TRIB., Oct. 6, 1996, at 23 (noting that after the framers of the Constitution put majority rule into place, they went back and shored up minority rights in the Bill of Rights precisely to guard against what James Madison called "the tyranny of the majority").

51. 319 U.S. 624 (1943).

FORDHAM URBAN LAW JOURNAL [Vol. XXIV gious freedom of Jehovah's Witnesses, who believed that saluting the American flag violated the First Commandment's bar on idolatry. In striking down mandatory flag salute laws as violating the rights of the members of this minority faith, the Court ringingly affirmed not only freedom of belief and conscience; it also set out

core precepts regarding all fundamental rights:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.5 2 In his JTS lecture, Justice Scalia praised the common law approach of building on tradition, and said he wanted to emulate it for constitutional law. But even the arch-apostle of common-law judging, Oliver Wendell Holmes, himself denounced the type of rigid adherence to tradition that Justice Scalia espouses. Holmes declared, "It is revolting to have no better reason for a rule of law than that it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

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