Good morning everybody. It’s great to see you. I appreciate the fact that despite the difference of life perspective and views in this room, we are all united by a strong and sincere belief that there is no better way to spend a Saturday morning than talking about Pierce versus Society of Sisters.
In my day job at the Carnegie Endowment, I spend a lot of time thinking about international conflict, but my scholar colleagues also work on democracy and the rule of law, and obviously that’s my background too. And I am very much happy to chair this panel on un enumerated rights. I’ve long enjoyed the programs of the Constitutional Law Center and working with Judge McConnell on different things.
And I figured if I could help out in some way, I’d be very delighted to do it. So we have a stellar cast here to talk about enumerate rights and related issues. The backdrop, of course, is the. Century anniversary of Pierce V Society, A case many of us have thought about in different contexts.
No doubts and in the course of discussing the case and Unum rights, we’re gonna be working through a whole bunch of issues that are pretty familiar to this audience at a time when attention to what counts as constitutional or not in the American legal tradition is getting plenty of attention.
First I’m delighted that we have Eric Rassbach, senior counsel at the Becket Fund, who’s briefed more than 90 cases before the US Supreme Court. He’s admitted to practice in Texas, DC California, and of course Ireland. And I should say I’m very impressed with how many cases you’ve briefed before the US Supreme Court, but the real question is how many before the California Supreme Court?
I’m just saying I have one pending there right now. All right. Alright, that sounds, I’m very glad to hear that you can stay on the panel. Second, we have David Smolin of Samford University in Alabama, leading authority on constitutional and private international law. And years ago he has my appreciation because when I was a baby assistant professor and nobody knew me, he reached out and asked me to be on a panel with him at a conference.
And I’m grateful. Thank you very much. Third, we have Reva Siegel of Yale Law School, one of the leading authorities on constitutional history, and somebody I have learned a great deal from over the years, not only from reading her scholarship and attending talks that she’s given, but also because she is my former first year contracts professor.
And I would add that she very gracefully, but rigorously handled students who were occasionally unprepared for class. And I’m just gonna leave it at that. Thank you, all of you for being here. We’re gonna begin with Eric, then David, then Reva each will speak for about 10 minutes, and then we’ll get the conversation going.
I’ll ask a few questions and then you get to ask some questions. To you. Thank you. First of all, thank you to Michael and to Morgan and Stanford for organizing this conference and for inviting me. And then also thank you to, I guess drag call you, professor Justice Cuéllar wherever you are.
Okay. Thank you for moderating this panel. I’m gonna address our panel’s topic from the viewpoint of religious liberty litigator, which is my main job. I do some academic stuff at Pepperdine on the side. But I my main job is litigating cases and that’s where I’ve come to interact the most with substantive due process.
And so if I had to give my presentation a title, it would be Pierce Substantive Due Process and Religious Liberty Litigation. But if I wanted to give it a subtitle, it would be A Tale of Unrequited Love. Okay. Why unrequited love? It has to do with the role of a religious liberty plaintiff’s lawyer, and the different kinds of claims that one can bring when confronted with different infringements on religious exercise or something that religious people or institutions want to do.
And so typically if I’m, I’m a plaintiff’s lawyer, that’s my main job. I, I’m gonna have a bunch of different claims in a complaint and a typical, a case involving religious speech, we’re probably going to have a couple of claims with different free exercise theories or we might have so we definitely have a couple of free speech theories of liability as well.
Depending on the facts, who’s the other side? We might have a Religious Freedom Restoration Act claim, or maybe state constitutional claims. And there’s a lot of different things. I think I, I don’t remember how many counts I’ve, the most number of counts I’ve had in a complaint, but it’s pushing 20. So one of the tools in that toolbox of claims has traditionally been substantive due process.
So I’ve brought substantive due process claims in a number of different cases over the years. But the, it’s been, the trend has been downward. So that is, we used to try bringing substantive due process claims more than we bring them now. It has gone entirely into disuse, but the trend has been downward.
And why is that? It’s not because we don’t want to bring substantive due process claims or that we didn’t fall in love with the claims that we did bring. It’s just that the courts, and actually I would say there’s an important role here, play by scholars have reacted in ways to these kinds of claims that make bringing these claims difficult.
Threshold issue is that there’s a strand of precedent from the Supreme Court, the US Supreme Court that says that you can’t really bring a substantive due process claim on particular issues if you could bring it, for example, as a free exercise claim instead. So if you’ve got both a free exercise claim and a substantive due process claim about.
Complaining about the same problem. The cognate claim under the substantive due process clause falls away, or I should say, I shouldn’t say clause. Substantive due process doesn’t it just falls away. So the so the courts just don’t reach that claim. So the universe of claims that I would bring as a religious liberty litigator under the, under substantive due process are something that’s not already necessarily covered by the Bill of Rights.
So it’s an argument or a theory that wouldn’t already arise under some other part of the Bill of Rights. That’s the threshold restriction, but then there’s a judicial and a scholarly dynamic at work that makes substantive due process, particularly stony ground for religious plaintiffs.
And in particular I think there’s two different kinds of reaction by courts that really severely limit the scope of these kinds of claims. One group of courts and scholars just don’t like substantive due process. So that kind of court, when confronted with a substantive due process claim that is not already squarely.
And, irrefutably, co covered by existing precedent is not going to extend the doctrine. You can see this, the sort of locus classicist for this kind of thinking would be Justice Thomas, right? He’s written many times that he really does not like substantive due process and is not going to willingly extend it to anything new.
But you can also see it in recent opinions by, say, judge Pryor or Judge Newsom on the 11th Circuit. And of course within academia, there’s many scholars that have said there isn’t any basis for substantive due process in the constitution. Particularly, if you’re of an originalist bent I think that a lot of scholars that consider themselves originalists don’t like substantive due process and think it ought to be in the privileges or immunities clause or something like that.
The second group of courts and scholars is much more friendly to substantive due process. As a general matter, but they aren’t particularly interested in extending it in the specific context of religious plaintiffs. And I’ll give you an example. We brought a claim a number of years ago against Washington State in a case called Storms Against Weisman.
That involved a pretty significant substantive due process claim based on the idea that there’s a substantive due process right not to have to take human life. And this was a case where they were a pharmacy in the middle of Olympia, Washington. They didn’t want to dispense the morning after pill.
There’s a lot of other pharmacies right in the immediate, couple blocks away. So they didn’t want to do it. And so we won that case not on process grounds but on free exercise grounds. At the at the district court. We lost at the ninth circuit. And then it went Supreme Court.
There was a sort of a pretty lengthy dissent from justice Alito. But they did not grant the case. This is maybe about 10 years ago. That’s an example of a kind of a claim brought by a religious plaintiff saying, look, there’s a substantive due process, right? And it gets rejected by a court that may not have any problem with substantive due process.
Generally it’s not a Justice Thomas kind of reaction, but was not going to extend it to, to this kind of claim. We have. We currently, have other substantive due process claims in other courts, for example, based off of already recognized rights like the right to bodily integrity under substantive due process.
So we’ll see, maybe those will go somewhere. But I think the overall message that you’re getting from the sort of two different groups of courts is that substantive due process claims are useless and they may not even be worth the words in your opening brief. You have word limits in appellate briefing, and you have to pick what you’re going to triage.
And substantive due process is gonna be on the chopping block earlier than some of your other claims. And I’ll also say I’m not aware of too many of my peer organizations appear religious liberty litigation firms that bring any substantive due process claims. We’ve tried, but we’ve been rejected.
So it’s unre unrequited what does this mean for the broader issue of substantive due process jurisprudence? So I’m obviously looking through my little keyhole of religious liberty litigation. I don’t think that this dynamic is limited to religious plaintiffs. I think it this sort of dynamic of the two different groups and the fact that you can’t bring, identical claims under with some substantive due process.
I don’t think that is limited to just religion. I think it probably, follows from other areas. I think that ends up limiting the doctrine because if you don’t have lawyers bringing cases about a part in a particular, with a particular theory, over time it’s going to fall into ude.
It’ll be there as a sort of baseline law. I don’t think that the things that are already listed up, that laundry list of substantive due process claims that are out there right to marry, et cetera, are going anywhere. But I also think there’s people actively looking to reconceive them as, for example, claims under the privileges or immunities clause rather than the due process clause.
And so I do think that, if you’re not growing, you might be shrinking. And obviously substantive due process is shrinking. Glucksberg is still there, but Dobbs shows that parts of substantive due process can get shrunk. And so I think it’s likely to continue to shrink. And it’s a little bit what I think of in my own mind as the beginnings of the bivens.
Death spiral. If you think about the Bivens case, it’s this decision that seemed like it was opening up this whole new world of different cases that might come before the court. But basically every time it gets to the Supreme Court now they’re like, Nope nope, nope.
And the lower courts have taken that message too, and they’re saying, Nope nope too. And I think that obviously substance due process is nowhere near that. But I wouldn’t be surprised if, if it remains a kind of special pleading thing. It’s like something that only one group of people is interested in.
The other group is not as interested in it at all. I think, the litigators are just gonna look elsewhere to get relief for their clients. And I also think that given the political polarization I think that makes it also less likely. Circling back to Pierce. What does this mean about Pierce?
I thought so fascinating. Dean post’s presentation yesterday about the completely different mental world of the Taft Court. How often do we talk about the Taft Court? But it’s just this completely, it’s like the past is a foreign country, really comes there.
So what will we look like a hundred years from now? And people are like thinking what is Pierce about or substantive due process. I think it’s gonna be a dried up stream. I think it’s not going to be there anymore. And I think it’s going to have been replaced. It probably privileges or amenities.
I don’t know. I, and people will look back to Pierce and say, oh, that was a, that was the beginnings of free exercise. Jurisprudence not so much. Substantive due process. I’m just saying, a hundred years from now, and maybe they’ll be wrong, but I’m just saying that’s what they might think a hundred years from now.
So that’s my presentation. Terrific. Thank you Eric. And by the way, if anyone is looking for a good slogan for a poer sticker or a T-shirt, bivins death spiral might be a good start. Professor Smolin. Okay, thank you. First of all, Mike, thank for the opportunity to be here. I’m very honored to be here.
I’m trying to revive originalist substantive due process. I don’t care if you transfer it back to the privileges clause, but it’s gotta live. I think it has to live because it’s part of the original intention of the 14th Amendment. We have these justices, Thomas Alito, who claim to be serious and write these 70 page opinions about Second Amendment, about all kinds of things.
The basic drama of the 14th Amendment is the drama of emancipation from slavery, elevating the slaves. As black Americans to full citizens in the 14th Amendment and giving them equal protection and due process under the law and giving them political voting rights in the 15th Amendment. How is parental rights central to that?
One of the central critiques of slavery when we talk about public meaning originalism, not just what was in the minds of Bingham and others, but that entire generation were the slave narratives of families broken apart, circulated at the time, okay? Spouses broken apart, parents and children, a part of the narratives of the emancipation period, or the pathetic stories of emancipated slaves trying to find their families.
Obviously they didn’t have the internet. They’d been forbidden to read and write. You can imagine that struggle, a part of the narrative during slavery as a parent. Was you could not protect your child. You could not protect your child from a very young age. From the whip of the overseer, the master decided where and what your child did and didn’t do.
You could not protect your child in the most basic way from the sexual advances of the overseer or from the master or from the master’s family. Think about all of those biracial children. Think about Sally Hemmings, Thomas Jefferson, what we almost know for certain are his children. Just a microcosm of that world.
And that was all very publicly know. We had the emancipation. Idea we had then the apprenticeship statutes by which judges in the south would forcibly apprentice former slave children to their former masters against the wishes of their parents. I wrote about this 24 years ago. This is all well known.
Okay? Not ’cause I wrote about it, but because it’s all there. I’m not a historian, okay? This is not like this is low hanging fruit. We need some briefs recovering the originalist parental right stories. We need some articles on this parental right story. Okay, so that, that is my first stage and I just opened that up.
Secondly, I wanna go to the conservative privacy project under Scalia that has tried to kill substantive due processes. You’ve talked about some judges don’t like it. And here I think we go between two mental worlds. We talked about the mental world of the Taft Court. We talked about that wonderful citation that links together, common law links together.
The pursuit of happiness by Free men, which is of course a reference to the declaration. We also need to recover what was essentially the 14th Amendment jurisprudential mindset, which was a remake of anti-slavery constitutionalism for Bingham and for others. What Bingham and others did is take portions of the Constitution privileges clause, the original privileges clause, the original due process clause of the Fifth Amendment, and they had long been in service of anti-slavery arguments.
And then Bingham got to write them into the 14th Amendment, obviously not alone and people understood what he was doing. It was this revolution to put the federal government as a primary guarantor of the rights and inequalities of not only black Americans, and of course they were right. That. Black Americans rights were not gonna be protected.
The long night of segregation was coming after reconstruction ended. Okay. But also to protect all Americans through federal courts, through the federal Congress, through the federal executive. Okay, so we, and a part of recovering that is Yes. Recovering the natural law, thinking behind it. Okay. Now, Scalia had a different project, and unfortunately, most conservatives have followed it.
Again, I’m responding to the excellent comments of former Dean Post, which is again, that Holmes introduced this relativism, this modern skeptical mindset, which I would submit to you. Not all. Postmodern share. Okay. And Scalia followed that. And what was his project? His project was about abortion. His project was ultimately about, although he wasn’t there, Dobbs, his project was about the killing of substantive due process.
And it’s very interesting to see how he reacted in the Troxel case to these linkages, which were so common in essentially Bingham’s mindset to parental rights. If you don’t know a Troxel v Grandville 2000, it shows you the mess the court makes of substantive due process, but it was a third party or grandparent visitation case.
Okay. And essentially Scalia dissented. Okay. He said, in my view, a right of parents to direct the upbringing of their children is among the quote, unalienable rights with which the Declaration of Independence. Proclaims quote, all men are endowed by their creator. And in my view that right is also among the quote, other rights retained by the people, which the Ninth Amendment says that the constitution’s enumeration of rights shall not be construed to deny or to disparage.
The Declaration of Independence, however, is not a legal prescription. Conferring powers upon the courts and the constitution’s refusal to deny or to disparage other rights is far removed from affirming any of them and even further removed from authorizing judges to identify what they might be and to enforce the court’s list against laws duly enacted by the people.
So this was Scalia’s Project Kill Parental Rights Kill Substantive Due Process Rights Overturn Roe. Okay, and it’s Catholic heresy. It is human heresy. I mean that quite literally, there’s a istic understanding of how positive law must be connected to natural law and up the ladder. Okay. And we have a majority of Catholics on the court.
Scalia of course, was a devout Catholic, but. This thorough going positivism is completely against the mindset of the framers of the original Constitution and the Bill of Rights completely against the mindset, very much of the 14th Amendment. Okay. Against what was described as the TAF court and their mindset in the way they were not as tied to texts.
Now, again, one reason this it’s difficult to recover is it seems like this hocus pocus pull it out of the sky thing for many people, and I understand that. And in Scalia’s day, there was the fear that in the heart of a liberal judge, what does substantive due process produce? That’s what that was all about.
Let’s just kill the project. But if originalism is true to public, meaning of the framing generations, he’s wrong. Period. It’s not just about what constitutional law is, it’s about what law is. Okay? If there’s no connection. Between law and justice. If there’s no connection between positive law and natural law and law is merely will and power, whether it’s the will and power of a monarch or the will and power of a legislature, or a governing majority, or a president just will and power, we are doomed.
That’s not our heritage. I come to you from Birmingham, Alabama, 35 years. There is a mostly welcome guest ’cause I’ll never be a Southerner, but I love the place. Okay? And of course, what I’ve learned there is that there is this living tradition for black Americans, for white Americans that kind of binds us, and it is a natural law tradition.
Think about Martin Luther King’s 1963 letter from a Birmingham jail. Okay? He’s sitting there and who does he cite? He cites Augustine. He cites Aquinas. And unjust law is no law at all. A positive law still has meaning. It has consequences. It’s real. The natural law tradition is not just a judge pulls it from the sky and wipes out whatever legislation he or she wants.
In order to recover natural law, we need to recover and understand the place of positive law in those systems. Okay? So it’s a big project, but originalism, positivistic, originalism is untrue to itself. Okay? I think I’ve got one minute left. Exactly. I have 47 seconds. Okay. I’m a child rights person. I don’t have time to do this properly.
Obviously, human beings don’t come into this world is cloned adults. It is a problem for the law, okay? Because even our understanding of adults is wrong. If you understand that we as human beings have this long period in which our family, our culture, our language, whatever we think about, the ultimate questions of life is imprinted on us.
We can walk away, we can leave, but we are leaving something that we started with. Okay. Roots matter, if I can put it that way. We talked about that with adoption, I’m sure. All this individualism cannot capture humanity. It’s a, and so one of the difficulties is that constitutional law, when it goes into, cases, Michael h versus JLD Troxel, you can see their struggle because when they constitutionalized parental rights, they’re in a realm of often family member versus family member, not always parent versus state, right?
And so essentially you’ve got to create. A conception of parental duties, which I don’t have time to sketch out. I’m sure you’ll tell me. And I would suggest modestly spending the last 20 years in international human rights world where the convention on the rights of the child is a guiding framework and we’re the only country in the world that hasn’t ratified it.
That the ideas there of parental responsibilities. Yeah. I’m not saying incorporate into law if you’re a judge, but there’s things there we can learn from. I’ll just leave it there in the interest of time. Terrific. Thank you very much, professor Smolin. Now over to Professor Siegel. Thanks. I’m so tempted to comment on this, but I’ll try to save it for afterwards.
Robert has been sitting here grinning at me because I’ve been working on related themes okay. I’ll do my best here. So first of all, I wanted to thank you Michael for convening this really heterodox group of folks and it’s a lot of fun to have this conversation in this way. You had opened the conference talking about Pierce as a case that has something for everybody.
And you were invoking this idea that Pierce was a case that one could cite for parental rights for religious liberty and something like privacy rights that would lead to Griswold and its progeny. And certainly Myers and Pierce are cited in Griswold and in Roe and in Casey to emphasize that due process, liberty extends well beyond Lochner.
The call for this panel in particular invited us to consider the legacy and current state of Pierce’s influence, especially in the context of Dobbs. And I could only make sense of my own invitation with reference to that point there. So I figured it was for me to say something on this point. So I looked to see when I got off the invitation, what Dobbs had to say about Pierce ’cause I hadn’t, of all the things I had paid attention to, and Dobbs paid attention to that very question and it, I wasn’t really all that surprised to see that Justice Alito observed that Myron Pierce protected, quote, a right to make decisions about the educational one’s children and immediately emphasized that this wasn’t sufficient to provide a right to obtain an abortion, a sound basis in precedent.
Not a surprise that Justice Alito would conclude this. I’ll observe very quickly that it wasn’t a due process. We know that Dobbs itself appeals to Glucksberg, which is a due process case substantive due process case when it says that Glucksberg requires Rose over ruling. And that reading of Glucksberg was itself the very first ruling reading of Glucksberg to require Rose over ruling because Glucksberg was written by the court that decided Casey and never had been construed this way in its entire 25 years until the Dobbs decision.
So for sound basis in precedent, he has a capacious view of that proposition when he needs to, it just wasn’t with respect to Pierce. But I have. Actually other reasons besides this aspect of what’s going on in Dobbs, to really think twice about leaning too hard on Pierce. And that runs to issues maybe that Robert were raise was raising yesterday.
Having to do with the common law understanding of the family on which Pierce is really drawing. There’s without my going into it, ’cause I don’t have time there’s just a gender conventional, very deeply gender hierarchical understanding of the family on which all of that law is sitting and.
I guess I would say putting this all together and think about the invitation here, the situation for me, unlike you, my relationship to the court makes this a time for me to rethink the way I wanna think about the constitution’s relationship to the liberty guarantee. It gives me the space, the opportunity, even the freedom, if you’ll excuse the expression to think about that question.
And so what I’m gonna do in my talk today is to think about the question of how the liberty asserted in Griswold Roe in Casey and the modern substantive DUC process cases was born in the era of Pierce, even recognized by federal courts in the era of Pierce, but grew out of struggles over a statute, the Comstock Act.
And so that’s what I’m gonna be talking to you about. And in telling the story, it’s coming out of a paper that I published. Part of what I’m saying is coming out of a paper I published with Mary Ziegler this spring in Yale Law Journal, which is called com Dockery, how the government, how government censorship gave birth to the law of sexual and reproductive freedom and may again threaten it.
And I’m just gonna say a few words about the sidestep that I’m making here so you’ll understand why I’m making it. And I will circle back to how this is constitutional. So comstock’s, a postal obscenity statute enacted in 1873 that criminalized as non on non mailable obscenity. Writings and things that facilitate lust.
And this federal postal statute regulated for the first time as obscenity writing and things for the pro. Now I’m quoting for the prevention of conception and the reg and the procurement of abortion. That’s language from the statute enactment of the Federal Comp Comstock Act spurred the passage of many Comstock statutes all over the in states, throughout the country, including in 1879 the Kinetic Obscenity Law that criminalized contraception That would be an issue in Pul versus Ulman and in Griswold.
So we see already there connection. So early 20th century struggle over Comstock at the time of Pierce, literally at the time of Pierce, played a critical and unrecognized role in shaping American understandings of liberty. His stories constitutional in the following sense. The government simply assumed it could criminalize speech.
Sex reproduction. And so far as the courts were concerned, the government could do but Americans resisted and their claims, many of them were expressly constitutional, but ignored by the courts, helped shape judicial interpretation of a Comstock Act itself, producing a series of famous Second Circuit Comstock decisions that in turn would play a role in Poe versus Ulman and in Griswold.
So you get the sequence, there’s a fight in the twenties and thirties producing these decisions that themselves then shape the interpretation of the Constitution in Poe versus Alman and in Griswold. So if I were to give a story that I’m about to tell a doctrinal packaging as a reading of Pierce.
This is from Michael. It would be a clay on Michael’s anti Orthodoxy, or Disestablishment Pierce, the one that anticipates Barnett rather than the parental rights reading of Pierce. Okay. Or what we could characterize what I’m about to recount as an alternative reading of the nation’s history and traditions, but I don’t have time to set any of that up.
So water. So what I’m gonna say is that the Comstock prosecutions go after birth control and aborted fas, but there’s not really any information about them. It’s all about speech and writings, letters, everything. There’s no way to tell ’em apart because there’s no way to diagnose early pregnancy in the individual case until 1960.
So this idea that there’s a line between them is not intelligible in this time period. At a time that the birth rate is plummeting. So basically it’s criminalizing the conduct of ordinary Americans pervasively in this time period. And despite its remarkable reach, this law is only sporadically enforced.
The postmasters tended to target for exemplary criminal prosecution, immigrants as well as Americans who spoke out advocating free speech, free love, and in particular, the statutes, reform or repeal. They were special targets for criminal prosecution, and over time, especially by early 20th century, these obscenity prosecutions earned the name come Stalkery and aroused resistance by these free lovers and suffragists and civil libertarians.
And it’s this, which begins to shift in motion the understandings of obscenity of the. Ideas of freedom under the statute. And by the early 20th century, there are suffragists to begin to court arrest under the statute civil disobedience. We talk about accommodations in the name of conscience because they didn’t have the vote.
And this was a way of creating media opportunities to converse with the public about the idea of something they called voluntary motherhood. And they used these trials to get newspaper coverage, et cetera. I read vast numbers of newspaper stories. It’s fascinating. Ironically, it’s the arrest of one Mary Wear.
Mary Wear Dennet. Would you gimme two minutes ago? Sure. Mary Ware de who people don’t know anything about, a woman who didn’t want to do this arrest thing, she wanted to persuade Congress to reform the Comstock Act, but there’s only one woman in Congress at the time, and this was like basically an impossible proposition.
She had a background in. Defending folks who were arrested during World War I as pacifists, and she had the view that voluntary motherhood and the idea of the right to know were critical elements of democracy. She was only talk, talking in the language of democracy, and she is sent a letter about a sexual education pamphlet, which she had written for her son and then shared with others and put in the mail at the same time that she’s Pierce is being litigated.
She’s having this sex ed pamphlet declared non maleable by the post office. Her trial becomes as. Publicized as anything having to do with Pierce becomes a focal point of newspaper coverage, even though it was never her intention to get into one of these conscience litigations and is covered all over the country.
Fascinating. Dewey heads up her defense committee. There are all kinds of clergy and min ministers that set out to speak on her behalf. Skipping all of this, the sec, her case winds up in the second circuit and Judge Augusta’s hand reasoning from her pamphlet reasons that sexual expression is an integral part of emotional and social life and rejects the Victorian Lin test, which for a long time had been used to determine obscenity under the Comstock Act and determined that her pamphlet didn’t violate the Comstock Act.
He then relies on this new obscenity test in two other high profile Comstock cases. Ulysses. Ever heard of that? And one package. And so with these two cases in motion, there’s a new immersion understanding of the line between obscenity and health under the Comstock Act. And this reading spreads through the circuits and also ultimately into the states.
And it’s these cases that ultimately have a new life under the Constitution, subsequently first in Roth shaping or helping to shape narrow the understanding of obscenity under the First Amendment and then subsequently in PO versus Oman. The Harlan descent in versus Ulman and also in Douglas’ descent, and then in oral argument in the Griswold case and et cetera.
So I only say this and I’ll be stopping now having taken my two minutes to say that I’m interested in this train of influence, not just because of the statutory line here, but because these cases are palest for the advocacy of these women who otherwise at the time they begin it, don’t even have the vote.
I’m fascinated by this idea of freedom, having a shape as a vernacular of freedom outside of due process, but coming to shape our law. The idea of voluntary motherhood and democracy being connected the way that Sanger did. How could a woman possibly say something of authority in defining the constitution’s being it?
I can’t think of a single case where that’s So everyone think of a case. You can’t, okay, so Mary Anne’s reading her phone, you can’t think of a case. Okay. So what I’ll tell you is I’m interested in this, in the way that Justice Thomas invokes Frederick Douglas. Frederick Douglas did not have a status as a lawmaker, and he didn’t have the right to vote.
But he is an honored authority who actually helps articulate the constitution’s meaning in that way. He said he’s got that status for us today. We can help shape by the stories we tell. It can help shape the memory, have the sort of force and meaning of the constitution’s clauses. And I think that we need to start telling stories that will do that for the future.
So this is the nature of my due process. I’m grateful. Fantastic. There’s so much to get into. I’m going to make a brief comment and then ask a question, but the three of you should feel free to react either to what I say or to each other ’cause there’s plenty of talk. Okay. I’ve got plenty here. And we’re gonna go in reverse order so that after I speak, we’re gonna go to Professor Siegel, then Professor Smolin, and then Eric.
So the observation is partly channeling another professor I was very lucky to have in law school, and that’s the late Bill stunts who might have observed if you were here that the Language of Rights. Powerful though it is for Americans and naturally linked to a conversation about the federal Constitution does not only play out in the context of the federal Constitution.
What it means of course, plays out in the context of state constitutions. It plays out in the political sphere. So CF discussions about Obamacare and the right to healthcare, and it plays out to some extent international law. I don’t know if you would’ve made the last point, but Juice, Hogans and all that.
So in some sense, the discussion about un enumerated rights in the context of the federal constitution is more technical doctrinally and also somewhat more functionally different. He would probably say, and I would agree with that, and so in various ways you all have addressed that indirectly, but I invite you to say something about why the discourse of an enumerative rights and the practical bite of it has to be channeled and to what extent to the federal constitution.
Which leads to my question, which is. Assuming we all agree and I suspect we do, that there is doctrinal space for un enumerated rights post Dobbs, whether under privileges, immunities or otherwise. Think about little John and so on. Where do we exactly find the toolkit doctrinally that lets us zero in on the rights that exactly have protection.
David, I think you addressed this most directly ’cause you’re like, let’s talk originalism here. But I wanna just invite the three of you to just say in a pithy way where you find that toolkit. Let’s start with professor Siegel. I just told the story and I. That of course has no purchase. I just told you the story, but I invited people to tell stories such that they could have purchased.
And I will just say that the story of un enumerated rights was the story told to kill rights and cabin rights is the better way to put it. Cabin rights that you, you think that, oh no, it’s the text really? ’cause that’s where it comes from. And I’m saying, oh no, that was, we are saying, oh no, that was a story told at one point in a battle over which rights had authority.
And so rather than I’m finding one, I’m saying one can summon and create these things. So rather than I’m telling you I’m gonna just go to your question and rather than I, I had this instinct because we’re right now at a point at which I. Whether one I raise is general law, natural lights, whatever.
It’s having a resurgence in a way that actually undermines the whole category of un enumerated rights. Un enumerated rights presupposes the idea that there’s a text, the very world, the Positivism and Justice Scalia that Robert was invoking before, but that itself is getting its foundations undercut, right?
Sure. So there was this sort of world that was meant to foreground and elevate some and undermine others. And I’m just drawing attention to that, rather being, giving you a theory of what’s gonna do it. If you asked me to be argue in that world, I would probably go back to equality. That’s, I’d invoke fists and go back in that direction.
But I’m more interested in this notion that un enumerated rights or actually some structure with. The, four worlds, excuse me, four walls really in the world of the Constitution as opposed to One more just so story we tell ourselves. I could say more, but I’ll stop there. Fair, David. Okay. I’m gonna talk about the overruling of Roe.
Okay. In that context and the way that Sure. But I will, that like rights really also are about the people. Okay. ’cause there’s a lot of concern. What else is gonna fall? Back I had, I was assigned as a young law professor to write the amicus brief on substantive due process, why abortion could be overturned back in 92 without overruling Griswold, without overruling Pierce, and all these other cases.
Okay. And without going over all of those arguments, I would say that essentially you talked about other actors. Roe fell because there was resistance over 49 years to the abortion. That was organized and comprised a significant part of the population. Okay. There was the annual January 22nd demonstrations in dc, the National Right to Life chapters, the Crisis, pregnancy Centers, the Sidewalk Counseling.
I could go on and on. Okay. In an organized way. And there was also the production of laws like the Mississippi law that ultimately created a vehicle for the court. One of the reasons that this matters is Obergefell is a fairly young decision, Pierce, very old, Griswold, fairly old. Where are the demonstrations?
Where are the, organizations dedicated to the overruling of these cases? I don’t see them. Okay. And so in many respects, a right is declared by the court, whether it’s a. Well done or badly done, but the people sit with that. Now, there are plenty of people I understand it’s not like all the American people rejected the to control one’s own reproduction as to abortion. Very powerful arguments for that. But the argument that Dobbs Court accepted was that let’s place this in democracy, not in courts, because a substantial body of Americans resisted it for 49 years. Hearing, after hearing in the senate for judicial nominees, the justices went through their Roe v.
Wade, questioning year after year. Okay. And so this is the sort of the people matter. Fair. That’s what I wanna say as to whether something remains controversial enough to possibly reconsider, because precedent matters. You have a two finger on that show? Yeah I spoke to rapidly before I will just say about my remarks about unen enumerated rights.
The un enumerated rights took a certain set of internal doctrinal developments. We had to move from the world that Robert was mapping under substantive due process to the debates, over incorporation. We had to have the debates over whether justice black and whether there was gonna be total incorporation and in order to get into the idea of enumerated rights.
And when we got there, we then had to have the political conflict over abortion for the word un enumerated rights to become a hot button substitution for the word ro. And at that point. Enumerated rights not only had a internal doctrinal legal set of meanings, but it also had a political meaning and it all came together in that way.
So I now just mapped the whole thing from, because if you ask someone un enumerated rights in 1920 it might’ve un enumerated, might’ve meant something about terrorists, but it wouldn’t have meant this whole explosive might still mean something about Terrace. It does still, I lit online. It does still mean something about terrorists.
So what I’m saying to you is something that’s both about internal doctrinal developments plus this political thing. I can also tell you that if we looked at poll as you’re going on about the American people, if we looked at polling right now we would discover enormous, broad based support for the right that just got reversed.
So we’d also need to layer in important facts about political. Parties and their relationship to all of this, which we haven’t discussed. And I’m not gonna, I took a two minutes, so I’ll stop, but I’ll just, I don’t want the American people to stand in for what Actually, there’s a reason that President Trump is not doing full force attack on abortion right now.
Okay. So I’ll stop right there. Point, Eric, your thoughts. I guess the sort of background idea that I would think about with respect to Unum un enumerated rights is a co a contract dispute. What happens when you’ve got two counterparties to a contract? So this sort of a gloss on social compact theory, they start pointing to the contract and say, the deal’s not going south.
The deal’s going south. And you, you start saying where’s that in the contract? To your contract counterparty. And I think that because of the polarization and much lower. Just overall trust levels in society? I think that, and probably amplified by social media and just, we’re having an experience like the invention of the printing press right now.
We’re going through this new technological age where, people react differently to each other. I think that polarization means that people end up looking at the text more. And I think that I think that the, in practical matter I think, going towards the privileges or immunities clause and saying okay, where is the text history and tradition here?
’cause that’s what this court right now is interested in. If I’m litigating one of these cases over the next 20 years and I wanna talk about un enumerated rights, that’s where I would probably want to go. Terrific. Which leads perfectly to the last question I wanna ask you, and then we’re gonna open it up to our audience.
So start thinking about your questions and we’re gonna start with you ’cause you’re a care carrying litigator. So this is almost an unfairly reductive question, but just to build a through line between the remarks from all of you. Let’s go back to Pierce A, as Professor Siegel was saying, Pierce framed the liberty right?
In very broad terms to my mind, even though it had a its own context. So to the extent we’re asking. What may seem like a narrow doctrinal question, but is also a social meeting question, which is like, what is Pierce good for now? What should it be cited for? What example does it give that is relevant right now, either in the courtroom or more generally?
What would you say about Pierce? Again, I’m probably bad because I’m a one trick religion pony. But but but I, the way we have used it in briefing is that we talk about Meyer and Pierce as in a line with Yoder and that and they were just free exercise cases to some degree of Aunt Ette, right?
Like they’re because it was pre incorporation, they led into that. That’s why I was so fascinated by the thing that vain post put up on the screen with the, religious liberties, like literally in the notes of the conference at Pierce. So I really want to get my hands on that docket sheet and see what it says.
But I but the point is just that I think that’s the line that we see. And so that’s why I, I think would it end up being something broader? I think it could be, but somebody’s gotta do something about the slaughterhouse cases. I don’t think we’ve mentioned that yet, but like the slaughterhouse cases, I think very few people think, that the, that was like a good decision.
Left or right, whatever. I don’t think anybody thinks that’s like a great case. And so then what do you do with that when you’ve got something that’s been around for a long time and arguably like, why did such a due process come about? It’s because that path. That was maybe already in the Constitution had been blocked.
So strongly Right after it was enact. It was like five years later. So anyway I guess that’s what I would see as the way forward. But again, I’m the one trick ponies. Yeah. No, I think that works. Revo. I’m fascinated,
I’m taking the opposite tack of Eric. I’m fascinated by the way in which the court in the 1920s is summoning to liberty by strengthening a series of institutions outside of the state. So the idea that there needs to be. Institutions sufficiently, not non-state institutions, to enable the individual to have an identity separate from state control.
And rather than it being religious liberty or it being parental rights, or it’s being something about education, it’s that the court is moving across a series of institutional settings, creating essentially a set of institutional counterweight to the over the state, which has grown during World War I.
So that dynamic, and that’s the various languages that are showing up about non standardization and not Sparta, that’s the anti orthodoxy or the non-establishment Pierce Meyer that I think are, the proto Barnett. That’s fascinating, but we’ll come back to that, David. Okay. I’ve already talked about the broader themes.
I’m gonna hone in on just education, parental rights, the actual themes. Obviously Meyer and Pierce are at charter of Freedom for Faith-based and also secular private schools. But Mike talked about the way Yoder spread on the homeschooling front, and I’m gonna talk about that because again, it’s an example of how, it’s not always the court that is the mover actor here.
The court said again in Yoder that this is for the Amish and. Instead, what happened is that homeschooling, and I agree, Yoder properly understood, is about an alternative community and homeschooling educational program. Okay. And the way that got spread to all 50 states was not through the Supreme Court.
They did not help us. They did not take cases. They did not do anything. It was, again, activism of homeschooling, parents, homeschool, legal defense, et cetera, winning through state legislatures, homeschooling laws, pushing year after year, state, after state. And that won because there was something intuitive to people that essentially parental rights are real.
Whatever the court may say or not say in this instance, really. ’cause the court was terrified of homeschooling. Then of course more recently Covid, like accelerated homeschooling. Not only because the kids were all at home, but also because you saw behind the looking glass, like this is the great expertise of the schools.
These are the lessons, I could do this. Now I come from, again, my wife and I homeschooled my wife, primarily me helping, eight kids. The oldest is 38, 2 National Merit finalists, couple PhDs. I could go on and on, so we’re early on that movement. Not the earliest. Okay. But I can say again.
Parental rights are intuitive to people. It’s also intuitive that they’re not unlimited. Okay. And so we have to find some language, rights are never designed to be unlimited. None of them are free. Speech isn’t, religion isn’t. Okay. And so I think it’s the way in which again, the American people not, ’cause we all agree not ’cause we all agree on the content, the limits, what they include, what they don’t, but they’re active and the activists and those who are doing something get more purchase.
So it’s not like we had a poll that said how many Americans like homeschooling, no homeschoolers did it. And then organized and then pushed legislatively. Okay. Things go to those who do. Thank you. Let’s open it up to our audience. And we have a mic here. And I imagine we will have a number of you with lots of interesting questions.
Yeah. Yes. So thank you so much for the conversation. Today is one of the message panels, and I hate to do what I do. I have to put some context, just a tiny little bit. Okay. To ask a question about a RDA has not been discussed. Okay? The context matters. So I am a Tam Hans, I’m for life as oxs, but I’m typically concerned about one area in which systems you process is very working, undermine.
This is immigration. And I wonder whether you guys have been p for the case of I was once again the father, I want to tested at Stanford, very peaceful and legally, and I am a, about this notion of having the secretary of the States because I say, so you’re going to be deported with a property, any evidence in which this guy did a crime or anything like that.
And whether three.
Thank you very much. Let me suggest Professor Siegel, you take that and anybody else can jump in if you have any thoughts as a substantive due process or from rotation? Yeah, because he’s been accused of, essentially there’s a provision for the Cold War era that allows the Secretary of the State to essentially cancel business in politic curse to anybody for any reason.
I might just put this clause on the question like this, the un enumerated rights and substitute due process discussion, what relevance, if any, do you think it has to these immigration disputes perhaps? So I haven’t thought about it, so I’m being asked to think about it for the first time. I can say Glad you jumped in here.
So people, I’m inviting people who have Sure. Okay. Clear. Okay. You wanna go ahead. I would just say I, I haven’t analyzed SDP substative due process specifically with respect to immigration. I do think that rule that you have to use other parts of the Bill of Rights. First that the court has enforced before you get to substantive due process means that it’s very unlikely to go out on those grounds because there’s a host of other things that somebody could bring up, including, obviously speech, but also equal protection or things like that.
Yeah. Yeah. And let just get professor smaller in your, you will like this. Okay. Speed. You guys have issue whether should be Castle two process or substitute two. Yeah. Let me just, and go No, go right ahead. Okay. So I’m gonna say basically three things. First, it goes to what I was talking about with law.
Positive law has to be connected to justice somewhere, and so is law just completely will and power. So all of immigration law goes to that, okay, this class of people who are undocumented or are here legally, but then can be ripped away. And I think that, the rhetoric has been very negative.
I’ll say that. How, what the actions will be. Some of them, and I say that as somebody I’d wanna call attention to even who they are. But I have family members, literally who we are worried. Okay. Even though we really shouldn’t be, they’re here legally. Secondly there is obviously it’s the 14th amendment generally the attack on birth citizenship, the first sentence of the 14th amendment.
And I will predict that’s gonna fail either seven to two or nine to zero. The court will reaffirm birth citizenship. Just make a very specific prediction. Won’t take up the time to say why. Then in terms of the history I gave, the other aspect is families being ripped apart. That’s the other commonality to the history that I gave about slavery and an understanding of the importance of that because I think there’s been, for immigration, conservatives, there’s been a concern about this chain of immigration and you bring one person over, you bring over the next for international adoption, they cut that off.
They didn’t permit that. Now we’re in contact with the natural family of our adoptive children. They cut that out and I understand the concern, but still again, that history of the 14th amendment tells us that families being ripped apart is something we should be concerned about.
Terrific. Thank you. I’ll simply say that I expect there to be some form of relief, but I don’t see for the same reasons you’re mentioning these courts going to substantive due process to give it. That’s all I’m saying. Okay. Great. Thank you. Next question. I thank you again for this great program. Ah. So I don’t care.
An advocate, I, an attorney is ready an amicus brief for to springboard on Charact rights from the non logistic standpoint. And so I really dismay with errors prediction as substitute due process is going by the wayside because I actually think that’s incorrect. And the reason being in a recent night survey case called which versus Staley the Knight Circuit, Reba that case this is an April case for a substantive due process analysis site Glucksberg to answer the critical question of whether the survey rights RG rein in the nation’s history and tradition and whether there’s implicit in the concept of order liberty.
And so my question to you is how do you think Blasberg is affecting substitute due process analysis? Okay, thank you. Brief comments on that from anybody you want first? I think, I don’t wanna say that I think Eric’s wrong in respect of the religion cases, but I think there might be a slight problem with projecting too much from the religion cases to the other cases.
Substantive due process has a rich and varied life outside of the religion cases. It gets all of its stink from the cases that I’m concerned with. It’s it’s political, meanings from that. But all of the parental rights cases, punitive damages, it has so many lives incorporation it’s got, so it’s playing so large role in our life.
And I think that with Glucksberg on the move now, it will have an in infras and history and tradition analysis, it’s gonna have legs. So I go in the other direction. I just think where religions, religious liberty claims are concerned, the courts may well be. Likely to just stick to the First Amendment.
David and Eric Defense. Okay. I also teach bioethics and law, so I teach Washington v Glucksberg all the time. It’s a series of cases. Cruzan, Glucksberg, Vaco Quill equal protection. They stand for two propositions. One, there is a fundamental right of a competent adult to refuse any medical treatment. And again, that’s consonant with common law understandings.
If you look back at the common law, rooted in times when medical treatment was as likely to kill you as to help you. Yes. An unwanted touching is a battery, et cetera, et cetera. So the court makes that into a constitutional principle. A competent adult can refuse any medical treatment. Okay?
But then when it comes to trying to have the Roe v Wade of physician-assisted suicide in a context where, again, like roe, they would have to wipe out most of the state statutes. Roe wiped out every single. Statute, even the elective abortion states did not go nearly as far as Roe in terms of how far into pregnancy, the court, nine to nothing.
Rejected, creating this physician-assisted suicide, but then gave it back to the people. So now we have 10 states that have legalized. The Oregon law came first, physician-assisted suicide. It’s like Dobbs in that as to a more contentious claim that, was not represented by very many states at all at that time.
The court says, we’re not gonna take that over. We’ll just let democracy do it. But as to one that yes, this deeply rooted language or is reflected in the common law, yes, we will constitutional that. What does that do for parental rights? I think the line of three cases helps parental rights because the right to refuse medical treatment of a competent adult parental rights are deeply rooted.
Okay. So it should help because that’s not one of those contentious new rights. Terrific. Eric, brief thoughts. Just, I first of all, I just wanna be very clear, like I wanna win my current sub substantive due process claims. I don’t play on the message. I’m not, I’m just saying that if you observe the history and also just the general willies, the judges get about un enumerated rights, judges just don’t the un, they don’t like uncertainty.
They don’t like not having a process. And I think that’s the thing that’s part of the headwind there. I agree. I don’t think it’s the list of stuff that’s, like in Luxeburg is going anywhere anytime soon. I’m just saying over time the headwinds are still going to be there.
Thank you. Next question will the willies, okay, so I saw the sort of, Robert, it’s the room question. Let’s say, did David, right? I am one who has willies about subsidy process, but I also am Oh, good. To the argument that on numerator rights exist in the 14th amendments privilege district news space.
But what would that mean? So so it seems like you want, these conversations are always been predicated on like Pierces being too narrow and we need more, but in the, what would an action look like? And I will just give three examples that you could all have in on that three cases. You right now fighting in the courts right now, al opt-outs on substitute due process, parent rights rounds, parents demanding the right to know their children are socially transitioning in schools and parents demanding the right to healthcare that would allow their children to me up the transition.
All of in increment those that claim is there. In your mom case, you have the substitute process pieces. There are other, there’s other litigations. I was curious like what do you think if you won, what would a more fullthroated inebriated look like and how that, and I’m gonna ask our panelists, just respond briefly just with a nugget or two, recognizing this is a very broad and interesting question because I wanna make sure we accommodate everybody.
Let’s start with David. Okay, on all three opt-outs, it’s about extending the opt-outs to non-religious parents or parents who don’t make a religious claim, which seems in. Fair. It ought to be there. Number two, social transition that’s hidden from parents. I think, again, I know it’s a sensitive question.
There is the question of whether it harms the children. We don’t have time for the whole discussion, but in general, lead in a direction that since parents are responsible for their children and all of the consequences of those things, that they do have the right to not have, not be tricked, not, one name to, from the teacher to the parent, another name from the teacher to the child.
Not to be tricked in that way. Retti is the trickiest one actually. Technically, as I recall from the oral argument, the parental rights claim is not live in the Supreme Court. Anyone can free. To correct that. I think Barrett asked that question. So in essence, it’s not before the court and the court might duck it ’cause of the change in administration.
But in general I think the sixth circuit is right, that in general parents don’t have a right to choose medical treatments that the state considers not safe. And so I’m not saying the state’s right, that’s not safe. Okay. I’m just saying, when the states take that position, parental rights in the past has not gone over to, you can select a medical treatment that is the state considers a dangerous thing.
So I don’t think that will win there when it’s brought, not by this group of justices. Certainly. Gotcha. Press Siegel. Any thoughts? I have something to say, but I’ll are you gonna speak to this? Oh, sure. I can’t. I, if you don’t want to I’ll, I just wanna go last as well. Oh, you gonna go last?
Alright. Hopefully, I won’t get shot down the final word. No. You will not, no I no, I think it’s a really fascinating question. I do think that it. It puts me in a weird position because I only bring religion claims, so I end up not bringing the exact parallel claim.
Like I don’t represent Yeah, the non-religious, you can speculate a little, but I can speculate and where I might point to is something somebody mentioned Seeger and Walsh yesterday, and I think that’s an example of where conscientious objection was expressly given to religious objectors by the statute.
And the court said in statutory interpretation that’s gonna go a little broader and we’re gonna get it to these other people where they are, they have a non-religious claim. But there it’s a little broader. I could see that kind of dynamic happening. Let’s say the Mahmud case is a win for the parents, I could see that having a kind of knock on effect of that sort where there’s, people are like, that’s, they’ve got it, so why can’t these other people have it?
Okay, we back. Okay. So this thing I wanted to say is not exactly responsive to the question, but I’m sitting here getting, let’s just say a tad frustrated because we have very little time to speak. And I just feel it important to say that I’m not a substantive due process person, and to the extent I’m being asked to speak about the particular set of issues I write about them as equality issues.
So I don’t even have a particular appetite for abortion, per se, what I have that is a real dislike for certain forms of coercion that target particular groups of people when other forms of less coercive pursuit of the same ends or available. For example, in the case of Dobbs, the state claimed to care about protecting unborn life, but provided, no sex ed, no contraception, no healthcare, no support for parenting, no nothing, and just said its support for life was just satisfied by, criminalizing abortion. And the brief that I signed onto was about that being sex discriminatory. And that Justice Alito reached out before he ever overturned Roe and said his commitment to precedent prevented him from pon and said Alig, and with no other word said, there is no equal protection claim here in dicta, which he will then turn into law probably at the end of this term.
And I need only to say that even though this language seems blurry, other ways of talking about the same issue, the court refuses to engage in them. So having said that, I’ll stop. What do I’m just saying there are other ways to talk about the same relationship, but the courts won’t do it. Protection. Got it.
That’s all. That’s, we have two more questions and about say 10 more minutes. Okay, great. So this is for anyone obviously Pearson Meyer, the court was not, I. Myopically focused on defining a specific right at a particular level of specificity to determine what level of scrutiny applies to a law.
Allegedly bridging that the court presumed liberty, right? Rather, that was the liberty of parents to direct the education of their kids, the liberty of Robert Meyer, to teach the liberty of both, to engage the serv one to engage the services the other, and then it put the court the government to the test, right?
Prove that this is within the competency of the state. To effect, right? That it’s a permissible objective that the law actually advances that interest and doesn’t go further than reasonably necessary to achieve it. It’s only later that when we get to Caroline Products and the bifurcation of Rights and then ultra deferential rational basis Review and Williamson versus Lee Optical, and then the restoration of some un enumerated rights that we get into this business of defining the right and determining what level of scrutiny applies and all of this.
What are your thoughts about just returning to what the court actually did in Pearson Meyer, which is presumed liberty, and then put the government to the test of justifying its law with actual evidence, okay. And not getting into all this business spout. Thank you.
David. Okay. You’re pretty quick on your feet. Okay, sure. Okay. I’m gonna jump quickly, try to do it very quickly to something the court’s doing that concerns me here in the Second Amendment area. Bruin Rahimi, this move to abolish these tests entirely and just try to denote through history. Don’t do strict scrutiny, don’t do intermediate scrutiny.
Don’t force the state to do those things that you said, but just try to scope historically the scope of the right. I think that’s a huge mistake. I think it’s justice Kavanaugh’s, concurrent opinion in the Rahimi case. Thank you for that. I appreciate it. That, says that’s maybe the way to go.
And we think First Amendment law and all that. I think those tests are critical because they’re not just balancing tests like they claim, they force the state, like you said, to justify itself and not only on the claimed interest, but some of the things you were saying the means in a sense, and so I do think I’m gonna defend the tears for now because I’m frightened we’re gonna take them away and try to do everything by this kind of going back in time.
And I think that would be a big mistake. Joseph Loker and I haven’t posted, but have just, we have a paper coming out in pen which is taking on. Justice Kavanaugh’s project there and Joelle CIA’s project there to get rid of all of these against the tiers and in favor of history and tradition on the grounds that the resultant product is anti-democratic anti-democratic in the sense that it drives what is still going on underground and makes it illegible.
And that you can’t, you don’t get the benefit. Two things happen. One, you can’t see the balancing and the judgments that are being made in the history and tradition analysis. And also it’s driving the courts to focus on criteria and away from the concerns of the public enacting. And I agree completely.
Eric, anything you wanna add on? So just on the. Back half of it. I, so I totally agree. The government should always be put to its evidence. I’m a plaintiff’s lawyer. I see the government all the time. I think that they very frequently, no matter what kind of government is, no matter what the issue, they don’t want to put forward evidence.
And they often find out that what they think is true is totally not true when they are put to their proof. And I tend to agree with Professor Barkley about the, that the, strict scrutiny is reconciliable with, original meaning, thought. But on the front end I feel like the Pierce case, or at least the way that it operates, and I think Michael mentioned this yesterday, it’s pretty short and terse. And that’s the kind of thing that goes to the Willie’s problem for the judges, right? Like it just scares them because it is too, it feels too broad and they don’t know what they’re buying when they issue an opinion that is based on that. So I’m not sure I see the plaintiff’s side of that case rather than the defendant’s affirmative defense.
Like I totally agree with you. The, on the plaintiff’s side, I see it. I, it feels hard to say that like someone would actually write an opinion like Pierce today. Thank you. Last question. I’ve got a question prompted by Eric that I think everyone else is gonna have something to say about, but first a comment for David and it repeats something I said to the Federalist Society aft on their.
Dobbs ro casing in the rule of law panel, you say the reason why Dobbs happened, why abortion rights were overturned is because the people did not accept it. The people resisted it. I think there is a real danger that we see across areas from the conservatives today of developing what I call a heckler veto on stare decisis, and that will completely dissolve the rule of law.
If. What you do with a decision you don’t like is not do a constitutional amendment or do a statute that works around the constraints the court has presented, but simply keep passing clearly by the terms of majority opinions of the Supreme Court, unconstitutional statutes. And think if you do it often enough, if you protest loud enough.
You know the limit cases is the insurrection, right? It’s a heckler’s veto on the rule of law because it’s a heckler’s veto on stare decisis. But my question for Eric, and this is a serious. Doctrinal question. I always thought Scalia was exactly right when he acknowledged that all incorporation particularly of the First Amendment was substantive due process.
That it had no textual warrant other than liberty. I mean that Kennedy, who gets grief for being so unmoored from three and four protest tests is exactly right when he says this is liberty. And I thought that, for example, explained what’s what I call fancy dancing, what Scalia calls broken field running that he engages in.
Predominantly in First Amendment cases, including religious liberty cases. He does this in rv, he does this famously in Smith you like in incorporate. And this is exactly contrary to his notion about common law courts in a civil law world, he’s in a common law world because for incorporated first Amendment including incorporated substantive due process.
And I would also say that if it’s not substantive due process, if it’s privileges and immunities, then. Religion lib. Religious liberty advocates are a particular disadvantage because privileges and amenities protects only citizens. And I don’t think any serious advocate of religious liberty says neither the new Pope nor the Dalai Lama, nor the car.
People who are religious leaders will completely lose their religious liberty the moment they land in the United States ’cause they’re not citizens. Thank you, Eric. So I’m not a hundred percent sure I understand the question, so I apologize for that. But I think is the idea that if what I’m predicting about substantive due process comes to pass that.
Sort of the first Amendment is Dean Incorporated. Is that the kind of the, I guess what I’m puzzled by is the distinction in your talk between religious, and I’m, you say you’re getting this from the judges and maybe you are, I’m not my, it’s a conceptual doctrinal question, not a doubting of what you say.
Yeah. But conceptually doctrinally, I didn’t think it was for anything other than the acts of the federal government, religious liberty, on the one hand, substantive due process on the other, but substantive due process that forks over into incorporated substantive due process, including religious liberty and then unincorporated substantive due process, including un enumerated rights.
I see. Does that make, yeah, it does make sense. To be honest, I’d have to think about that one. I, I. I don’t think that, whatever the outcome is of, with substantive due process in the un enumerated side, like whether, whatever happens with that, I highly doubt that they’re going to go back and say, oh, we’re not incorporating things through the due process clause.
I think that’s still going to, the incorporation of those rights is gonna be there. Now, maybe that’s a tension with it and it will protect substantive due process in some way. But I guess I just, I think it’s I don’t see that happening. And I think in terms of the way that you have to think about it as a just litigator day to day, the fact that the courts have said you just can’t bring this free exercise claim as a substantive due process claim also.
So if you’ve got, I’m complaining about. Problem X and I bring two counts in my complaint. They just ignore the substantive due process break. That’s why I end up getting shunted to the side in this problem. Anyone else wanna jump in or say anything in closely? Should I respond to her question?
Me? Oh, I’m glad to do so the heckler’s veto, I would suggest that there is a legitimate long. Resistance to the Supreme Court tradition in this country. Lincoln saying is to the Dred Scott Case that he would not interfere with the parties, but he would not accept the broader principles of that case.
It goes on and on, and I think there is respectable resistance to Dobbs. That’s a part of our tradition is that the Supreme Court, it may be final in that case, but it’s not necessarily final ultimately. And so I’m suggesting that the role of the people and of state legislatures and of, president Lincoln himself, all of that is a very respectable part of the system.
I, there’s something profoundly undemocratic about five of nine vote or six of nine vote, or seven to two in Dred Scott, was it, deciding something like that for the whole country for all time. And no, the Constitution belongs to the people. Now, it doesn’t mean it’s automatic that, cases will be overturned. But what I was trying to explain was why all, a lot of these other cases are not at risk of being officially overruled. Griswold Pierce within its own scope. Okay. And even Obergefell, which doesn’t fit the originalist methodology at all, is that, you’ve gotta have state legislatures, you’ve gotta have people, you’ve gotta have resistant movements around those.
And you don’t even, as to Obergefell, I don’t see it in Alabama. I’m telling you, I’m coming from the deep south. There’s not a movement to overturn it. And I think that’s legitimate for left and center, and I think it diminishes American democracy to call that just a heckler’s read out rhetorically.
That, that’s my own view. Sorry. Wet. Anything you wanna add in closing? Yeah. Okay. I, before I thank our panelists who have been terrific. I hope you’ll agree with me and all of you for your wisdom in deciding how to spend your Saturday morning. I just wanna make three observations in closing, which just are my way of saying thank you to the panel.
The many things we could talk about right now around num rights to me cluster around three themes that I hear. The first one is a reminder from our panelists that the issues that so motivate us to think hard about doctrinal questions and about the relationship between society and law around interpretive method and constitutional law around the government’s burdens around equality.
Live massively in this discussion of an enumerative rights and always will second efforts. Doctrinal projects or otherwise to squelch un enumerated rights completely are really hard pressed to succeed. To my mind, this sort of one thing I extract, I’m not blaming your panelists for this conclusion, but I just note they, they remind us the multiple doctrinal hooks and arenas where these rights discussions will come back in.
And I might add in no small measure because the Constitution itself has some pretty open-ended texts. Last but not least, there’s been a theme here about how this is not just about individual liberty, but about civil society in different ways. And I’ll just close by noting that a year after I left government in 2011, I spent the summer teaching in South Korea and I found it an incredibly generative experience, no pun intended, for those who follow artificial intelligence.
It was provocative because in the course of a lot of informal conversations with South Korean lawyers, including one breakfast with a former head of the South Korean Securities Change Commission. I learned a lot about how folks who are thoughtful and have a lot at stake in understanding the US see our country.
And I particularly remember as of this panel, a conversation with this South Korean former SEC chair who was hearing me lawed his country for its transition to democracy and its economic growth. And he said, I just think you’ll be interested in hearing why I admire the United States. It’s not the resilience of your economy as such it’s not the geopolitical role you play.
It’s that most of what happens in this country, if I’m honest from my perspective, is either business or government. There’s very little in between. And your country has this incredibly vibrant and powerful third sector, which I don’t see anywhere else in the world. And I imagine you and other lawyers spend a lot of time thinking about how and why when you interpret the law, you keep that in mind.
Thank you very much to our panelists and to all of you.