The U.S. Supreme Court has overturned Roe v. Wade. While the outcome of the case is, of course, important—state legislatures can now more strictly regulate abortion—the court’s reasoning will have effects far beyond that particular debate.
In Dobbs v. Jackson Women’s Health, the majority ruled that abortion is not a fundamental right and any restrictions on the practice will now be subject to what’s called “rational basis review.” In the court’s words, when evaluating the constitutionality of a law that regulates abortion, judges will consider whether “there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”
This standard of judicial review is the most deferential standard that courts employ. It gives legislators wide latitude to burden what are known as unenumerated rights, those rights that are not explicitly stated in the Constitution, or that are not otherwise considered by judges to be “fundamental.” Although the rational basis test itself is nowhere to be found in the Constitution, that standard has long been used to allow legislators to abridge a number of unenumerated constitutional rights, such as the right to earn a living. In practice, the rational basis test gives free rein to special interests to harness state power for their own economic advantage.
The Constitution does not safeguard only enumerated rights, such as the right to bear arms, the right to free speech and the right to a trial by one’s peers. It also protects countless unenumerated rights, such as the right to marry, to travel, to enjoy privacy and to direct the upbringing and education of one’s children.
To understand how these rights exist despite the Constitution’s not explicitly mentioning them, we must look to the ratification debates. George Mason of Virginia spent the summer of 1787 as one of the more active delegates to the Constitutional Convention, but he refused to sign the document he had helped create. His first objection—that “[t]here is no Declaration of Rights”—was, to many, a damning critique of the Constitution, and one that threatened the new government before it began.
In response to this concern, federalists (who supported ratification) countered that it would be unreasonable to name all the rights that exist. Future Supreme Court Justice James Iredell captured this view nicely during the North Carolina ratifying convention when he declared: “[I]t would be impossible to enumerate every [right]. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.”
Worse yet, the futile exercise might leave the impression that the government had the power to trample on whatever rights were inevitably left out. As James Madison put it, “[I]t might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure.”
To appease the Constitution’s critics while addressing these counterarguments, Madison proposed a compromise. Once a new government was created, Congress would enact a Bill of Rights, specifically enumerating certain rights and reiterating that the new government’s powers were limited and enumerated. This was accomplished through what became the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Further, the Ninth Amendment would make it clear that the named rights in the Constitution were not the only rights that people enjoy: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
This created a constitutional guarantee to a bottomless well of retained rights: the right to life, to property, to bodily integrity, to free movement, to free association, to disassociation . . . up to and including the right to paint your kitchen whatever color you please. Note the word “retained”: The Ninth Amendment is about natural rights possessed by people before they form a government. It is not about positive rights that arise after government is created. Thus, it didn’t create a guarantee to a bottomless well of claims on other people. It didn’t guarantee a right to healthcare (which requires others’ labor) or a living wage (which requires others’ property). However worthy you may think those things are, the Ninth Amendment doesn’t entitle you to them. But you can paint your kitchen however you’d like, and the Ninth Amendment guarantees that the federal government will not second-guess your chosen shade.
In the Lockean spirit that animated the age, it was universally accepted that economic liberties were among the liberties retained by the people. Indeed, the founders made no distinction between personal and economic liberties. As the revolutionary abolitionist Arthur Lee of Virginia put it in 1775: “The right of property is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty.” And as Madison himself said a few decades later, under a “just government,” citizens enjoy not only the “free use of their faculties” but also the “free choice of their occupations,” since earning a living involves other rights, like the right over one’s labor, the right to promise or engage in voluntary exchange and the right to pursue happiness. Madison’s three-part plan ensured that these economic rights were secure from federal encroachment.
The adoption of the Fourteenth Amendment after the Civil War was intended to keep those same rights safe from states, which often refused to legally protect the rights of formerly enslaved persons after the war. Its “privileges or immunities” clause declared that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” And the framers of the amendment intended it to broadly protect those rights contemplated by the first eight amendments, the Civil Rights Act of 1866 and all fundamental, natural rights.
However, just five years after the Fourteenth Amendment was adopted, a 5-4 decision in The Slaughter-House Cases (1873) effectively excised the privileges or immunities clause from the Constitution. The Supreme Court held that this clause pertained only to a narrow set of liberties that “owe their existence to the federal government,” such as the right to interstate travel and protection from piracy on the high seas. In dissent, Justice Field wrote that the Fourteenth Amendment “refers to the natural and inalienable rights which belong to all citizens” and “ordains that they shall not be abridged by State legislation.” The majority, he asserted, had rendered the Fourteenth Amendment “a vain and idle enactment, which accomplished nothing.” Over time, the court compensated for these decisions by allowing the Fourteenth Amendment’s due process and equal protection clauses to do some of the work that the privileges or immunities clause was originally intended to do. Unfortunately, courts came to selectively enforce it depending on how much they favored the right at issue.
By explicitly stating that unenumerated rights are retained by the people, the founders set up a presumption of liberty: The American people retain all rights that the Constitution does not explicitly give to the federal government. The “second founding” effectuated by the Fourteenth Amendment should have extended this presumption of liberty, protecting it against state encroachment too. But this presumption was greatly irritating to Franklin Delano Roosevelt. Frustrated by court rulings striking down federal and state legislation, FDR famously proposed that he be allowed to add more justices to the Supreme Court, ostensibly to aid the aging and overworked justices. Though his so-called court-packing plan proved unpopular, in the end, he got what he needed: In his twelve years in office, FDR replaced every one of the nine justices on the court.
And indeed, this new, more progressive court was significantly more inclined to defer to the elected branches. But it needed some way to avoid deferring to the elected branches when it disagreed with them. So over the course of several cases—Nebbia v. New York (1934), United States v. Carolene Products (1938) and Williamson v. Lee Optical (1955)—the court invented tiers of scrutiny.
For legislation that threatened the political process, “discrete and insular minorities” or rights specifically enumerated in the Constitution, the court would apply “strict scrutiny,” upholding the traditional presumption of liberty. Under this standard, the government bears the burden of demonstrating that its rights violation is justified.
But for legislation that threatened unenumerated rights—especially economic rights, which progressives found especially repugnant—the court would now apply “rational basis” scrutiny, turning the presumption of liberty on its head. Under this test, courts presume a law to be constitutional, and a citizen whose rights have been violated bears the burden of demonstrating that the government policy could not possibly serve any legitimate state interest, even one not asserted by the government. In fact, judges must uphold the law if they can conceive of any plausible rationale for the law at all.
Under rational basis scrutiny, practically every law will be upheld as constitutional. One can almost always come up with some semirational reason to violate an unenumerated right. The special interests who seek regulatory favors will inevitably spin a story about how their monopoly or subsidy or privilege will serve the public interest.
In many cases, this weak test allows one interest group to use the law to gain at the expense of others. In Nebbia, New York dairy producers had obtained a law fixing a minimum price for a gallon of milk. A grocer named Leo Nebbia dared to try to compete by offering his customers a free loaf of Italian bread with two quarts of milk and was fined. The court found that the minimum price law—which plainly harmed the interests of Mr. Nebbia and his customers (during a Depression, no less)—“may reasonably be deemed to promote public welfare,” though basic economic theory on minimum price laws suggests otherwise.
In Williamson, Oklahoma eye doctors had pressed the state for a law making it illegal for opticians (nondoctors) to duplicate new lenses from old ones without a new prescription from an eye doctor. A lower court found that an optician “cannot arbitrarily be divested of a substantial portion of his business upon the pretext that such a deprivation is rationally related to the public health.” But the Supreme Court reversed, speculating that the law might have been intended to encourage disease-detecting eye exams, even though the law did not, in fact, require such exams. In his majority opinion, Justice Douglas offered that “the law need not be in every respect logically consistent with its aims to be constitutional.”
Today, courts routinely employ the rational basis standard to bless government-granted special privileges and to deny individuals their constitutional right to pursue a livelihood.
Consider the case of Powers v. Harris (2004). An Oklahoma statute makes it illegal for anyone other than a licensed funeral director to sell funeral merchandise, including caskets. Casket retailers Kim Powers and Dennis Bridges sued for the right to sell caskets to Oklahomans. The U.S. Court of Appeals for the Tenth Circuit found that the statute “passes constitutional muster, both as a matter of substantive due process and equal protection, by applying rational-basis review.” Then, in a remarkable show of candor, the court admitted what it was really upholding:
[W]hile baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.
Thankfully, the Tenth Circuit’s decision in Powers is extreme. Most courts maintain that the government may not deny people economic liberty solely to benefit the economic interests of powerful interest groups. There must at least be some truly public justification for depriving people of liberty. Still, even where courts don’t outright condone economic favoritism, they have employed the rational basis test in a way that allows legislatures to trample individuals’ economic liberty for arbitrary, counterproductive or facetious reasons. The results can be tragic.
In Meadows v. Odom (2005), for example, a court upheld a plainly absurd and protectionist restriction on economic freedom. Sandy Meadows challenged a Louisiana law requiring prospective florists to take a two-part written and practical exam to obtain a florist license. The practical exam was judged by licensed florists—that is, by would-be competitors. Almost no one would believe that floristry poses a threat to public safety sufficient to require licensure, and in fact, Louisiana is the only state in the nation to require a florist license. Meadows argued that rather than protecting the public, the law was instead passed at the behest of existing florists to protect them from new competition. Using the rational basis test, the court upheld the licensure requirement on the theory that, absent licensure, people who buy bouquets might scratch their fingers on the wires florists use to hold flower arrangements together. There was no evidence that wire scratches had ever occurred. After her loss in court, Meadows was left without a job, and lacking the skills to find a new one, she died in poverty.
Another example is the case of Ursula Newell-Davis, a social worker in New Orleans who sought to open a business offering temporary care to children with special needs. As a mother to a special-needs child herself, Ursula is passionate about giving parents a break from the rigors of child-rearing. And as a social worker, she has seen that when parents lack backup care, they are sometimes forced to leave their children unsupervised. Without supervision, these children may practice poor hygiene and get teased at school. Or, eager to fit in, they sometimes fall in with the wrong crowd. Ursula wanted to use her time with these children to teach them basic life skills and help ensure they have the tools to lead successful and independent lives. But in Louisiana, providers of such “respite care” must prove that their services are needed before they are even eligible to apply for a license. The state rejected Ursula’s application on the basis she wasn’t needed, as it does with 70% of applications.
Ursula challenged Louisiana’s need review as a denial of her right to earn a living. But the government claimed that, by reducing the number of respite providers in the state, need review made its other regulatory duties easier—and this, alone, was a benefit to the public. By the same logic, states should limit the number of drivers licenses to make it easier for police to catch speeders. Yet the court accepted the government’s theory that it could deprive people of their constitutional rights solely to save itself the hassle of having to regulate more providers. Research on need review shows these laws tend to decrease quality and, as can be expected, are associated with higher costs and less access to care. But under the rational basis test, the government can deprive you of constitutional rights solely for the purpose of saving itself resources, even without any evidence that doing so protects public health or safety.
In its ruling, the Dobbs court affirmed the dubious invention of tiers of scrutiny, despite the Ninth Amendment’s assertion that unenumerated rights should not be denied or disparaged. It also affirmed the rational basis test for nonfundamental rights. So, under current law, the outcome of any case involving unenumerated rights is essentially determined by whether the right at issue is deemed fundamental. If a right is fundamental, laws restricting it will be subject to the highest level of judicial scrutiny and will likely be struck down. But if a right is not fundamental, laws restricting it will encounter only the lax, deferential rational basis test, and they will likely be upheld.
So what can be done? In recent years, there has been an intellectual revival of interest in the Fourteenth Amendment’s privileges or immunities clause. Most constitutional scholars, as well as even some Supreme Court justices, now recognize that Slaughter-House was wrongly decided and that it effectively neutered a crucial component of the Fourteenth Amendment. If the privileges or immunities clause could be restored, the court would have a new opportunity to affirm the unenumerated rights that were supposed to be protected by the Fourteenth Amendment.
There is vast historical evidence regarding which rights were intended to be protected by that clause, and it clearly includes economic rights such as the right to earn a living, to contract, to own and use property and to keep the fruits of one’s labor. If the court resuscitates that clause, we could see a revival of rights that have otherwise been written out of the Constitution.
Alternatively, instead of identifying the right at issue in any given case, courts might focus on the government’s actions. Rather than having tiers of scrutiny, they could use just one standard for all government action, recognizing that all liberty rights are important and that the government should be forced to prove that its restriction has a meaningful means-ends fit in all cases. Scholars like Randy Barnett and Bernard Siegan have suggested something to this effect, the former suggesting a return to the “presumption of liberty” and the latter suggesting a uniform standard for all rights.
Rather than focusing on the federal Constitution, courts and policymakers might also turn to state constitutions. The federal Constitution creates a floor of protection that states are free to exceed. And indeed many states have exceeded that floor by enacting unique constitutional provisions. North Carolina’s Constitution, for example, has a “fruit of one’s labor” clause. Other states have passed statutes intended to bring more protection to long-abandoned rights. Both Arizona and Tennessee, for example, have a Right to Earn a Living Act, which raises the standard of scrutiny above mere rational basis when the state infringes economic liberty.
Either way, courts and the public must recognize that the rational basis test cannot mean what courts now say it means. It is arbitrary. It is not constitutionally supported. And it provides practically no protection for many unenumerated rights. In effect, the worst fears of both the federalists and the anti-federalists have come true. The enumeration of certain rights in the Constitution has been construed by judges to disparage, if not fully deny, the rights retained by the people. We must do better.
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