According to the conventional wisdom, if you have a constitutional right to something, any legislative restriction on its exercise is unconstitutional unless a judge finds it to be narrowly tailored to achieve a compelling state interest. This is called “strict scrutiny.” Because this type of scrutiny would bar many, if not most, legal regulations, constitutional rights must be limited to those that are deemed to be truly “fundamental.” All other liberties are deemed to be mere “liberty interests,” which are given what is called “rational basis review”—which is better described as any conceivable basis review.
In an otherwise obscure 1993 case, Federal Communications Commission v. Beach Communications, Inc., Justice Clarence Thomas accurately described modern rational basis review, writing that judges must uphold legislation “if there is any reasonably conceivable state of facts that could provide a rational basis” for it; that those challenging legislation must negate “every conceivable basis which might support it”; and that the government needn’t justify legislation with “evidence or empirical data.” As Justice John Paul Stevens ruefully observed in concurrence, “conceivable” basis review is “tantamount to no review at all.”
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In How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart, Jamal Greene takes an important step forward for modern constitutional theory by rejecting the current consensus view among scholars about how constitutional rights should operate. Greene is the highly regarded Dwight Professor of Law at Columbia Law School. His politics are left-of-center, but not radical. Above all, he is known for his thoughtfulness, civility, and generous support of his students regardless of their politics. In his book, he engagingly tells the story of how the rational basis approach came to dominate our conception of constitutional rights.
Modern rational basis review didn’t originate with the founders who wrote the Constitution, or the first Congress that drafted the first ten amendments we call the Bill of Rights, or the Republicans who proposed the 14th Amendment after the Civil War. It originated instead with Justice Oliver Wendell Holmes, Jr., who largely borrowed the approach from his former Harvard Law School colleague James Bradley Thayer. Three years after Thayer’s death, Holmes imported it into his biting dissenting opinion in the now-infamous case of Lochner v. New York, decided in 1905.
Lochner involved the constitutionality of a New York state statute limiting to 60 the number of hours a bakeshop employee could work per week. In a 5-4 decision, the Supreme Court held that the law exceeded the New York legislature’s police power because it had failed to make an adequate empirical connection to the public health or safety. Without saying so, the majority implicitly put the burden on the government to establish the reasonableness of this restriction as a health and safety measure, a burden the Court said the New York legislature had failed to meet.
In his short, pithy dissent excoriating the majority, Holmes contended that, because the law was reasonable, it was constitutional. That much was settled doctrine. A law that lacked sufficient reason for its enactment was deemed by courts to be “arbitrary” and therefore unconstitutional. What was novel was Holmes’s description of reasonableness: any legislative restriction on liberty is constitutional
unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. [Emphasis added.]
Evidence supporting the reasonableness of the restriction on liberty was not required; all that was needed was a possible reason why a rational and fair man (like Holmes) might think it a proper health measure.
Holmes also lampooned the enhanced protection the majority gave to individual liberty. “The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same,” he wrote, “which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.”
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No other Justice joined Holmes’s opinion. Instead, Justices Edward White and William Day joined the dissent of Justice John Marshall Harlan. Greene notes that Harlan’s dissent was “more celebrated than Holmes’s at the time but [has been] largely forgotten since.” (Harlan’s approach, however, is making a bit of a comeback. In 2017, I debated Yale Law professor Akhil Reed Amar on whether Lochner was correctly decided, and he chose to defend Harlan’s opinion, not Holmes’s.)
Although Harlan also asserted a strong “presumption of constitutionality,” his approach was arguably more empirical. Holmes was happy to speculate about what a “rational man” might have thought, which made any such presumption irrebuttable in practice. Harlan based his dissent on studies showing the peculiarly unhealthy conditions of working in a bakeshop. According to Harlan, the challenger hadn’t successfully rebutted the presumption in favor of the government. His approach to the presumption of constitutionality was formally adopted by the Court in the 1931 case of O’Gorman & Young, Inc. v. Hartford Fire Ins. Co., in an opinion by Justice Louis Brandeis.
I tell this story in my book Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016). But Greene adds a very helpful and amusing description of how Holmes’s solo opinion went from a mere curiosity when it was published to the prevailing approach in assessing regulation. Credit for this goes to Harvard Law professor and future Justice Felix Frankfurter, whom Greene describes as an “inveterate sycophant and social climber.” Frankfurter “devoted much of his professional life to ensuring” that “Holmes’s ‘conception of the Constitution’” became, in his words, “part of the political habits of the country”—a goal he accomplished through the many protégés he dubbed his “happy hot dogs.” I wish I had known these details when I wrote my book, and I won’t spoil the fun by summarizing them here. Greene’s account of Frankfurter alone is worth the price of the book.
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The only error I spotted in Greene’s retelling is that he traces the demise of Harlan’s approach and the adoption of Holmes’s to the 1938 New Deal-era case of United States v. Carolene Products Co. But in his majority opinion, Justice Harlan Fiske Stone strongly reaffirmed that “a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty or property had a rational basis,” and that where “the existence of a rational basis for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be made the subject of judicial inquiry” (emphasis added).
This approach is quite different than what we have today. Back then, a challenge in federal court to the constitutionality of a state or federal law had to be evaluated by a three-judge district court panel, whose decision could be taken directly to the Supreme Court on a writ of certiorari. Such a panel would be unnecessary if Holmes’s “rational man” approach was used. Harlan’s approach would not formally be abandoned by the Supreme Court until the 1955 Warren Court decision in Williamson v. Lee Optical in an opinion by Justice William O. Douglas. In Williamson, the three-judge lower court panel had concluded after taking evidence that the challenger had rebutted the presumption of constitutionality by showing the restrictions on liberty to be arbitrary. In reversing that judgment, Douglas adopted Holmes’s approach of finding a possible reason why a legislature might have adopted the restrictions it did.
Nevertheless, Greene is right to focus on Carolene Products. Its fourth footnote—the most famous footnote in Supreme Court history—introduced the modern “tiers of scrutiny” approach. It begins: “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” (emphasis added).
Notice that Footnote Four rejected the presumption of constitutionality only for the “specific prohibitions” provided by enumerated rights (together with laws regulating the electoral process and impacting “discrete and insular minorities”). But that line would not hold. Having gutted arbitrariness review in Williamson, Douglas broke the “specific prohibitions” limiting principle of Footnote Four by identifying as fundamental the unenumerated right to privacy in Griswold v. Connecticut (1965). This right, he held, included an unenumerated right of married couples to obtain contraceptives. In a now famous passage, he unsuccessfully tried to reconcile this holding with the logic of Footnote Four by claiming that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
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From that day to this, judges are now empowered to distinguish those fundamental rights that are meaningfully protected by strict scrutiny, from those mere liberty interests that must yield to any reason a legislature might have for restricting them. Once it fell to the courts to identify the only “fundamental” rights that would be judicially protected, the rights revolution was off and running, with everyone claiming that their interest constituted a right.
Greene is right to criticize this approach. Both he and I view the current structure of constitutional law in much the same way, and we identify much the same problem with it. His solution also resembles mine. Instead of “focusing on the existence of rights,” he favors “focusing on the government’s reasons for acting.”
I favor a meaningful empirical inquiry into whether a restriction on liberty is sufficiently related to a proper end of government to warrant the conclusion that it was enacted in good faith. By “in good faith,” I mean that the purported rationale is not a pretext for accomplishing an end that is beyond a legislature’s proper competence. Rather than distinguishing liberties that are fundamental from those that are not, this approach puts a premium on identifying the legislative power’s proper ends, which will differ depending on whether it is Congress or a state legislature.
But Greene’s approach, which resembles what is called “proportionality” review, views both constitutional rights and the ends of government far too broadly. He relies mostly on examples of decisions he deems good or bad, rather than on a clear description of how his method is supposed to operate—a description that a reviewer can quote. Sometimes he favors judges “mediating” the rights of individuals against each other, sometimes he favors judges balancing rights against government interests, and sometimes he favors judges deferring to the political process to resolve rights questions. We are never given any clear sense of when the political process should be trusted. But I think it is fair to say that, for him, a right is pretty much any important “interest” a person can claim. And a proper government end is pretty much any purpose that sounds good to us.
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When rights are identified as any interest, however, then everything becomes a clash of rights. In Part II of the book, entitled “No Justice, No Peace,” Greene cites one public controversy over “rights” after another that is “tearing us apart.” These range from school financing (are decent schools a right?), to guns (is there a right to own a firearm?), to abortion (who has the right, the woman or the unborn baby?), to same-sex marriage (do same-sex couples have a right to marry?), to Masterpiece Cakeshop (who has the right, the baker or the customer?).
Greene insists that invoking rights doesn’t resolve these conflicts. If rights are just any important interest, that is true. But the “rights…retained by the people” to which the 9th Amendment refers were not just any rights. They were natural liberty rights: the right to do what you wish with what is properly yours. Legislatures can create rights to additional benefits or goods by statute if they wish, and they routinely do. But in the absence of such legislatively created rights, only if government restricts the exercise of liberty can it be said to be violating one’s fundamental rights. But how is such “liberty” to be identified?
As stated in the Declaration of Independence, “to secure these rights, governments are instituted among men.” To secure which rights? The individual, natural, and inalienable rights to life, liberty, and the pursuit of happiness. Or, as George Mason put it in the Virginia Declaration of Rights, “the Enjoyment of Life and Liberty, with the Means of acquiring and possessing Property, and pursueing and obtaining Happiness and Safety.” One leaves the state of nature to gain the benefit of better enforcement of these pre-existing natural rights, not to surrender them. When entering civil society, one receives civil rights from government to protect one’s pre-existing rights better than one can protect them on one’s own.
Early on, Greene urges that “we should not ascribe to Founding-era charters our own modern understandings of what it means to hold a right. It was well-understood that rights could be limited by validly enacted laws aimed at the public welfare.” Then on the next page, he writes that “a rights-bearer did not hold an exemption from the community’s ‘police power’—its power to pass laws regulating the health, safety, and welfare of the citizenry.” Both these claims are true. But the “police power” to protect the citizenry’s health, safety, and welfare was conceived as the protection of the individual rights from infringement by the actions of others.
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The classical liberal concept of natural rights is a social concept. Properly defined rights are needed to regulate interpersonal relationships. Rights define a personal jurisdiction within which each person can pursue happiness, without interfering with the like jurisdictions of others. Rights are a vital aspect of popular sovereignty. Rights make you the sovereign of yourself. But even sovereign monarchs must respect the territorial jurisdiction of other sovereign monarchs.
Just as sovereign monarchs govern their own territory, citizens govern their own private property. Just as sovereign monarchs enter into treaties with other monarchs, citizens enter into contracts with other citizens. But just as monarchs cannot exercise their sovereign powers to interfere with the sovereignty of other monarchs, one cannot exercise the liberty that is defined by one’s rights in such a manner as to threaten the like liberty of others. So, violations of individual rights may be prohibited, and liberty may also permissibly be “regulated” in order to prevent rights violations before they occur—to prevent the exercise of one’s rights from harming others (though the concept of “harm to others” is too vague to provide a workable principle). The difference between sovereign monarchs and citizens is that the latter are under the protection of a common government tasked with protecting their rights from being violated by their fellow citizens.
Greene’s failure to see the essential role played by rights may stem from his being a constitutional law professor rather than, say, a contracts professor. The individual rights we have against each other are defined by the “private law” of contracts, property, and torts. To win a legal contest, each side must claim a right. One cannot prevail in court by asserting a desire, preference, or even a harm. Then a court decides whose rights claim is stronger, issuing a judgment. In the private law, claims of rights are not absolute, but are relative to each other. The person with the stronger claim is then said to have “the right.”
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In contrast with private law, the “public law” then regulates the relationship between the individual with his or her rights and the government. The Constitution is the law that governs those who govern us. Properly conceived, constitutional law shouldn’t determine the substance of the rights retained by the people, it should define what government can—and sometimes must—do to protect these rights and regulate their exercise. This conception of rights is reflected in the quotation from John Joachim Zubly, a Georgia delegate to the Continental Congress, which Greene helpfully includes:
Liberty and law are perfectly consistent…. Liberty does not consist in living without all restraint; for were all men to live without restraint, as they please, there would soon be no liberty at all…: well regulated liberty of individuals is the natural offspring of laws, which prudentially regulate the rights of whole communities; and as laws which take away the natural rights of men, are unjust and oppressive, so all liberty which is not regulated by law, is a delusive phantom, and unworthy of the glorious name. [Emphasis added.]
This is correct. Liberty is distinguishable from license. Or, to put it another way, while Hobbesian liberty is the liberty to do anything one wills or desires, which would include the liberty to do what one wills with other persons, the Lockean liberty of the founders is the liberty to do what one desires with what is rightfully yours. Even the most radical libertarian today believes that liberty’s limits need to be well-regulated—though libertarians may disagree about who should be doing the regulating.
Which brings me to this passage by Greene: “Early Americans believed deeply in ‘rights,’ but within Founding-era political thought, the institutions best suited to reconcile the competing demands of rights bearers were not courts but rather local representative bodies: legislatures and juries. Indeed, juries were considered a vital democratic body on par with the assembly.”
That’s not exactly right. It is true that, at the founding, local representative bodies were thought to be the best guardians of rights. But that view was called into question by the violations committed by states under the Articles of Confederation, which in turn led to the adoption of a new Constitution as a remedy for “republican” defects. Although it may be true, as Greene writes, that “[t]he concern of the Virginians and other anti-Federalists was not the familiar twentieth-century fear of tyranny of the majority,” the Federalists were most definitely concerned with the tyranny of the majority.
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In his essay “The Vices of the Political System of the United States,” which he wrote to prepare for the Constitutional Convention in Philadelphia, James Madison sought to identify the cause of the “Injustice of the laws of States.” He traced them to “the Representative bodies” in the states and, ultimately, to “the people themselves.” This, he wrote, called “into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights” (emphasis added). The “majority however composed,” he continued, “ultimately give the law. Whenever therefore an apparent interest or common passion unites a majority what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals?”
To illustrate the problem, Madison posed the following thought experiment:
Place three individuals in a situation wherein the interest of each depends on the voice of the others, and give to two of them an interest opposed to the rights of the third. Will the latter be secure? The prudence of every man would shun the danger.
Likewise, will “two thousand in a like situation be less likely to encroach on the rights of one thousand?” From this, Madison concluded that “to secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed” (emphasis added). In Our Republican Constitution, I provide many other examples of Federalist concerns about majoritarian “democracy” at the state level.
But if that concern animated the Federalists’ Constitution, what about the Bill of Rights? Greene uncritically adopts the view that most of the rights in the first eight amendments weren’t meant to protect individuals, but to preserve local majoritarian rule—as was favored by the Anti-Federalists who pushed for such protections. True, it was the Anti-Federalists who complained about the lack of a bill of rights. But it was the Federalists in Congress who wrote the amendments. The amendments they delivered were not at all the limits on federal power the Anti-Federalists really wanted.
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What’s more, these Amendments weren’t even considered a “bill of rights.” Recent scholarship by Pauline Maier, Michael Douma, and Gerard Magliocca has shown that calling the first ten amendments the “Bill of Rights” didn’t really start to take hold until the 20th century and wasn’t commonplace until the (Franklin) Roosevelt Administration. It’s no coincidence that it was the New Deal Era Court in Carolene Products that, in 1938, limited constitutional protections to the specific prohibitions in “the first ten amendments.” Indeed, until 1938, the enrolled original Joint Resolution proposing amendments passed by Congress in 1789 was housed in the basement of the State Department along with other original laws and congressional resolutions. That year, they were transferred to the Library of Congress for safekeeping and did not go on public display at the National Archives with the Constitution and Declaration until 1952.
In the colonial era, a bill of rights was a statement of first principles, typically preceding a charter of government. By the time the Constitution was adopted, the most recognized such bill was the Virginia Declaration of Rights authored by George Mason in 1776, just weeks before Jefferson wrote the Declaration. (When Jefferson wrote the Declaration, he had Mason’s draft before him.) When, as a member of the House, Madison proposed amendments to the Constitution, his first proposal would have inserted some of Mason’s language into the new Constitution’s Preamble so that it would read: “That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety” (emphasis added). Madison explained that “[t]he first of these amendments…relates to what may be called a bill of rights.” But the First Congress eventually rejected insertions in, and revisions of, the original text in favor of adding amendments at the end.
Roger Sherman of Connecticut, who served with Madison on the House committee drafting the amendments, is credited with the idea of adding the amendments to the end of the Constitution. A draft of Sherman’s attempt to convert insertions and revisions into articles of amendment was discovered in the 1980s among Madison’s papers. Here is how Sherman’s second amendment read:
The people have certain natural rights which are retained by them when they enter into Society, Such are the rights of Conscience in matters of religion; of acquiring property, and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by the Government of the united States. [Emphasis added.]
This language should sound familiar. It starts with all the terms that were used in the final version of the 9th Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” What are the “rights retained by the people” when they “enter into Society”? According to Sherman, they include the rights identified by George Mason’s declaration of rights, which by this time had been adopted by several other state constitutions. These were the same rights that Jefferson summarized in the Declaration. And how does Sherman’s draft say these rights are to be treated? “Of these rights…they Shall not be deprived by the Government of the united States.”
When Greene gets to the 9th Amendment, he disparages it (as do many conservatives). “The people,” he claims, “did not mean an aggregation of disparate individuals holding rights against the government. The Framers of the Bill of Rights were referring, rather, to the community in its collective capacity.” No evidence for this claim is provided—not even a supporting footnote. Greene is implicitly endorsing the collective rights reading of the Bill of Rights offered by Akhil Amar, and the reading of the 9th Amendment offered by the University of Richmond’s Kurt Lash. Greene really owes it to his readers to inform them of the competing scholarly claims, and then explain why he finds one more persuasive than the other. When doing so, he would need to reconcile his reading with the text of the Declaration of Independence—which clearly refers to the rights of disparate individuals, as did Mason’s influential Declaration of Rights, and Sherman’s draft second amendment.
As long as I’m mentioning omissions, Greene also really needs to say something about Section 1 of the 14th Amendment. It concerns the “privileges or immunities of citizens of the United States,” along with the “due process of law” and “the equal protection of the laws” that restrict the powers of states. Whatever may have been the understanding of rights at the founding, Greene needs to reconcile his view of rights with the understanding of rights, privileges, and immunities—as well as the due process of law—that prevailed in 1868.
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What then is the proper role of natural rights, a role that I think existed both at the founding and continued up through Reconstruction? Recall the quote from Greene with which I began: “[i]t was well-understood that rights could be limited by validly enacted laws aimed at the public welfare.” The problem with this sentence is the word “validly.” I would reword it to read: it was well-understood that rights could be limited by valid enacted laws aimed at the public welfare.
Mere enactment alone was not enough to make a law valid if it violated fundamental rights. As Thomas Hartley stated to the Pennsylvania Ratification Convention, “[W]hatever portion of those natural rights we did not transfer to the government was still reserved and retained by the people; for, if no power was delegated to the government, no right was resigned by the people.” Or, as Justice Samuel Chase wrote in Calder v. Bull (1798): “An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact and on republican principles must be determined by the nature of the power on which it is founded.” In distinguishing between a legislative “act” and “a law,” Chase was not an outlier. The distinction was commonplace.
Under this conception of the legislative power, a law is proper if it prohibits wrongful acts that violate the rights of others. Laws are also proper if they regulate conduct to prevent rights violations from occurring. What rights? The individual private rights traditionally defined by the common law of property, contracts, and torts. When a regulation is challenged, an independent judge should realistically assess whether there is empirical support for the legislature’s claim that such restrictions are warranted to protect the equal liberties of others. Without such empirical support, a restriction of liberty is arbitrary and therefore unconstitutional. This does not mean that early courts always held such laws to be void; instead, they more commonly “equitably construed” such laws to avoid violating these fundamental rights. But rights were operating nonetheless.
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In Restoring the Lost Constitution (2d ed. 2013), I urged that the burden of proof be placed on the government—what I called “the presumption of liberty.” But who bears the burden of proof in such a proceeding is less important than that the proceeding be realistic. Justice Harlan’s rebuttable “presumption of constitutionality” approach in Lochner is far preferable to the modern, rational-basis test concocted by Thayer and Holmes in which the government always wins. Indeed, this too-deferential approach has been used by conservative and progressive judges alike to uphold all sorts of arbitrary restrictions on liberty imposed during the COVID pandemic. True to Footnote Four, the principal exception to this general deference has been increased judicial scrutiny of restrictions on the free exercise of religion.
Many, not unreasonably, fear empowering judges with so robust a form of judicial review. To address that problem, I favor Congress reviving the three-judge panel procedure to evaluate the evidence presented by both the government and the challenging party before a law is held unconstitutional. Such a procedure would protect against renegade judges. On this last proposal, Jamal Greene might even agree.