In Constitutional Revolutions, authors Gary Jacobsohn and Yaniv Roznai described a constitutional revolution as a process whereby a basic paradigm in legal thinking is replaced.1 The term “paradigm” is borrowed from history of science. But one thing that distinguishes lawmaking from scientific research is the extent to which in lawmaking judges decide when there is to be a revolution rather than responding to external events such as the emergence of new technologies.
U.S. Supreme Court justices are nominated and confirmed through a political process. But the actual process of revolutionary constitutional lawmaking is highly autonomous; five justices are sufficient. As a result, one important inquiry is whether justices are signaling that they are introducing a new constitutional regime or merely that they are further developing an existing one. During seven days in June 2022 (June 22-28), the Court, currently led by Chief Justice John Roberts, signaled unambiguously that a majority of the justices are embarked on a project of introducing a constitutional revolution. To describe the decisions of June 2022 as a “revolution” is arguably misleading, however. They may more accurately be described as a counterrevolution.
The Rights Revolution: 1890-1937
Following the adoption of the 14th Amendment, the Supreme Court at first tried to insist that nothing important had changed in American rights jurisprudence. By 1890, however, as “substantive due process” rights began to be recognized, that position was no longer tenable. With the addition of “incorporation” in the 1920s, the basic paradigm of rights jurisprudence was in place.
Howard Schweber received his Ph.D. in government from Cornell University in 1999, after spending five years practicing law. A professor at the U.W. Law School, he teaches courses focusing on constitutional law, law and political theory, political theory, and the philosophy and politics of public policy debates.
As early as 1886, in Yick Wo v. Hopkins,2 the Court had struck down a law that left too much room for arbitrary enforcement based on prejudice, while in Plessy v. Ferguson a majority signed on to Justice Brown’s proposition that a law enacted “to oppress or annoy” a class was constitutionally invalid.3 While in Allgeyer v. Louisiana4 and Lochner v. New York5 the Court’s majority explored the contours of “liberty of contract,” in 1925 in Meyer v. Nebraska a majority adopted something very much like the modern version of substantive due process.
Liberty, wrote Justice McReynolds, “denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”6
Later that same term, Meyer was cited as the basis for the ruling in Pierce v. Society of Sisters that parents have a substantive due process right to send their children to private schools. “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.”7 The rejection of “standardization” speaks to the concepts of value pluralism and private choices that are basic to the modern substantive due process framework.
The focus on broadly defined “liberty” rather than textually specified rights was reiterated in 1937— the year that is usually considered the end of the Lochner era. In Palko v. Connecticut,8 Justice Cardozo described the test for selective incorporation: rights would apply to the state if they were “of the very essence of a scheme of ordered liberty,” a test that appeared in discussions of substantive due process rights in numerous later cases until June 2022. From 1937 onward the combination of substantive due process and incorporated rights, including both textually specific and textually implied rights, converged into a single model of rights protections.
The abandonment of the theory of liberty of contract in 1937 was not a repudiation of substantive due process rights perse. None of the cases referenced above have been overruled and all provide principles that appear in modern cases familiar from any first-year law school course in constitutional law: the Yick Wo rule against excessive (and hence arbitrary) executive discretion in City of Chicago v. Morales;9 the Plessy principle that “bare animus” is an illegitimate basis for lawmaking in Romer v. Evans;10 the Meyer and Pierce principles in a myriad of cases dealing with family privacy, parental authority, and freedom of conscience in the educational setting.
Readers who went to law school at any time in the past 50 years will readily recognize the basic contours of this governing paradigm. Constitutional rights that can be asserted against states derived from three sources: textual specification plus incorporation, textual implication plus incorporation, or substantive due process. These categories were increasingly treated as equivalent, so that expressive conduct and association came to be treated as free speech and the right to counsel was treated as an inherent element of the Sixth Amendment right to trial.
The model across the board relied on “tiers of scrutiny” that applied increasingly demanding ends-means tests to assertions of state power. This, too, was reflective of a unifying convergence of standards, as the tiers-of-scrutiny model expanded from the equal-protection context to govern essentially all analyses of constitutional rights. In practice the model worked less as tiers than as a kind of continuum; interstitial subcategories such as “rational basis plus,” “intermediate plus,” or “intermediate minus” were introduced to deal with particular issues. But the basic paradigm remained constant for generations of law professors, law students, and lawyers.
A classic illustration of this approach appeared in Roe v. Wade in 1973.11 Justice Blackmun’s majority opinion in that case did not find a “right to abortion” but rather a “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action … or in the Ninth Amendment’s reservation of rights to the people … broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”12 Like the right of parents to control the education of their children, the right to abortion was based on a broad understanding of the “liberty” for which the Fourteenth Amendment offered protection.
A Challenge to the Rights Paradigm: “Originalism”
Starting in the 1980s, the traditional model of substantive due process and incorporation was challenged by a model of “originalism.” The first major Court decision reflecting the new approach was Bowers v. Hardwick (1986). Justice White’s framing of the issue was telling. “None of the rights announced in previous substantive due process cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case.”13
Justice White was being disingenuous: The law at issue was not limited to activities of “homosexuals” and instead was a ban on all forms of sodomy by anyone. Justice White reframed the right to limit it to the most specific possible description, then used that specificity to reach a conclusion that would have been unsupportable if the facial challenge had been dealt with directly.
That focus on specificity became an identifying feature of the more restrictive forms of originalist interpretation of rights claims. Justice Scalia’s argument in Michael H. v. Gerald D. is perhaps the clearest explication of the principle. The case involved a man who said he was a child’s biological father and argued that he had a right to a paternity test to settle the question. Like Justice White in Bowers, Justice Scalia reframed the question to focus solely on the specific asserted interests of the party in the case but he went further, insisting that to find the asserted right a court would also have to find a specific tradition of treating another right as protected.
“Even if the law in all States had always been that the entire world could challenge the marital presumption and obtain a declaration as to who was the natural father, that would not advance Michael’s claim … What counts is whether the States in fact award substantive parental rights to the natural father of a child conceived within, and born into, an extant marital union that wishes to embrace the child.”14 That is, Michael H. would not have a right to establish paternity unless he also had a right to use that determination to pursue additional parental rights that would themselves have to be grounded in tradition as specifically described.
The strongest challenge to the Roe-based model of substantive due process came in Chief Justice Rehnquist’s opinion in Washington v. Glucksberg (1997).15 Chief Justice Rehnquist did two things: He insisted that the “deeply rooted” test was necessary in all cases regardless of claims of “ordered liberty,” and he embraced with a vengeance Justice Scalia’s theory of specificity.
“First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted’ in this Nation’s history and tradition. Second, we have required in substantive-due-process cases a ‘careful description’ of the asserted fundamental liberty interest.”16 The principle of specificity Chief Justice Rehnquist articulated drew directly on Justice Scalia’s argument in Michael H.; to find a substantive due process right, it must be shown that there is a deeply rooted tradition of protecting the specifically described right that the majority – not the pleadings – considers to be at issue as a constitutionally protected “right,” not merely as a tolerated practice.
The conflict between the approaches of Justice Kennedy, Justice Rehnquist, and Justice Scalia did not go unrecognized by Justice Kennedy, as he noted in his opinion in Obergefell v. Hodges. “[T]he respondents refer to Washington v. Glucksberg (1997) which called for a ‘careful description’ of fundamental rights … While that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.”17
This, then, was the situation with respect to constitutional-rights claims in June 2022. A long-established orthodox paradigm recognized substantive due process rights as contained in a broad conception of “liberty,” and a challenging view proposed curtailing the scope of such rights by appeal to a principle of historical precedent and specificity. Both sides of the Kennedy-Scalia debate worked within the paradigm of tiers of scrutiny by which courts would evaluate a state’s assertion of ends and means in relation to the claimed substantive due process right.
Constitutional Counterrevolution: Dobbs and Bruen
During a few days in June 2022, the Supreme Court’s newly created majority announced a constitutional revolution. The two cases that most clearly showed the contours of the new paradigm were Dobbs v. Jackson Women’s Health Organization18 and New York Pistol & Rifle Association v. Bruen.19
Dobbs. In Dobbs, the case that overruled Roe v. Wade, Justice Alito began by asserting the primacy of the Glucksberg principles of “deeply rooted” tradition and specificity across all substantive due process claims. “[The Due Process Clause] has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’ The right to abortion does not fall within this category.”20
The “ordered liberty” element, however, is relegated to a discussion of political interests without implications for constitutional rights that stand outside the political process, thus undercutting the essential principle of higher-law constitutionalism. “Ordered liberty sets limits and defines the boundary between competing interests. 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.’ But the people of the various States may evaluate those interests differently.”21 This is a precise description of a political question. The “ordered liberty” that started out as a test for incorporation and then became an element of substantive due process rights has now been relegated to denoting a question in which no constitutional rights are implicated at all.
In other words, to the extent that the “ordered liberty” element of the test remains, it is folded into and stands outside of the approach of limiting substantive due process rights on the basis of a “deeply rooted” historical understanding. The emphasis on and effect of the specificity requirement in the “deeply rooted” formulation is made clear in a passage in which Justice Alito attempted to provide assurances that rights other than abortion were not at issue in Dobbs.
“[A]ttempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history.”22
Bruen. In Bruen, a majority of the Supreme Court made two key points that the Court would reiterate in Dobbs. But whereas in Dobbs, the majority insisted on looking for a deeply rooted tradition of protecting a specifically described right, in Bruen, the majority reversed the inquiry and declared that when the right at issue is a textually guaranteed category, only deeply rooted traditions of regulation are permitted. That test, in turn, is informed by the same norm of specificity at work in Dobbs.
Thus, in Bruen, the majority found invalid the New York law restricting public carrying of guns because, “we cannot conclude from this historical record that, by the time of the founding, English law would have justified restricting the right to publicly bear arms suited for self-defense only to those who demonstrate some special need for self-protection.”23 Bruen confirmed that for textual rights, the Court has effectively abandoned the tiers-of-scrutiny approach, just as the Court did one day later for substantive due process rights analyses in Dobbs. The consequences for Second Amendment jurisprudence have already been significant, as lower courts have struck down laws banning untraceable “ghost guns”24 and laws imposing age restrictions on handgun carry,25 both on the grounds that analogous regulations were not widely in place in 1791.
Conclusion
Dobbs and Bruen are not merely statements of new precedential rules but also represent a replacement of a paradigm of rights jurisprudence going back to the 1890s with an entirely new system that first appeared during the Reagan administration. Lawyers litigating constitutional-rights cases will have to argue in the vocabulary and analytical categories of the counterrevolution of June 2022. Appeals to “compelling state interest,” “implied rights,” “ordered liberty,” and the entirety of the old standard model of constitutional rights are obsolete. This new approach begins by describing the right at issue as specifically and narrowly as possible, assigning that right to the “textual” or “substantive due process” category, then applying the form of the “deeply rooted” historical test either to the claimed right or to the claimed regulatory authority.
For lawyers in Wisconsin and elsewhere, the precise implications of this revolutionary moment are unclear. Certainly, any lawyers working on cases with federal constitutional elements will have to apply the Dobbs and Bruen tests. In addition, to the extent that Wisconsin judges and justices take inspiration from the U.S. Supreme Court, these new forms of analysis may be taken to be signs of things to come. At present, for example, it remains unclear how far the Bruen approach reaches beyond Second Amendment cases, but there is nothing in the opinion that limits its analysis to that topic. Consider a First Amendment challenge to a statute regulating use of the internet: pretty much by definition there will be no widespread historical practice of analogous regulation circa 1791.
And lawyers are members of the polity as well as professionals. The most interesting question might be how long it will take lawyers and judges to catch up to the new approaches. For lawyers and judges whose education and practice have been based on the old model of tiers of scrutiny and means-ends tests, adjusting to the new vocabulary might be a challenge.
Endnotes
1 Gary Jacobsohn & Yaniv Roznai, Constitutional Revolutions (New Haven, Conn. 2020).
2 118 U.S. 356.
3 “[E]very exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class.” 163 U.S. 537, 550 (1896) (citing Yick Wo v. Hopkins).
4 165 U.S. 578 (1897).
5 198 U.S. 45 (1905).
6 Meyer v. Nebraska, 262 U.S. 390, 399 (1925).
7 268 U.S. 510, 535-36.
8 302 U.S. 319, 325 (1937).
9 527 U.S. 41 (1999).
10 517 U.S. 620, 632 (1996).
11 410 U.S. 113 (1973).
12 Id., at 153.
13 478 U.S. 186, 190-91 (1986).
14 491 U.S. 110, 126-27 (1989) (emphasis added).
15 521 U.S. 702 (1997).
16 Id. at 721-22.
17 576 U.S. 644, 671 (2015).
18 142 S. Ct. 2228 (2022).
19 142 S. Ct. 2111 (2022).
20 Dobbs, 142 S. Ct. at 2242.
21 Id. at 2257.
22 Id. (citations omitted).
23 Bruen, 142 S. Ct. at 2142.
24 Rigby v. Jennings, No. 21-1523 (MN), 2022 WL 4448220 (D. Del. Sept. 23, 2022).
25 Firearms Pol’y Coal. v. McCraw, No. 4:21-cv-1245-P, 2022 WL 3656996 (N.D. Tex. Aug. 25, 2022) (appeal filed).
» Cite this article: 96 Wis. Law. 26-30 (February 2023).
