Drop a brick from a C-130 into a crowd of political scientists, and chances are the person you hit could not define the extent and limits of “fundamental rights” without delving into theories of democracy, the social contract, the Almighty, individual autonomy, personal identity, or perhaps the writings of a favorite philosopher. Reliance upon many Supreme Court opinions would bring the inquisitor no closer to a clear definition because the case law is replete with contradictions, legally detached and precedent-built chains of inferences, historical spot-checks, and a resort to traditions not necessarily shared by all people, citizens, or governments.
Often there is little legal certainty in how far exactly the federal or state governments can go in establishing common-good laws that limit rights for the general benefit. Indeed, it is no secret that, under strict scrutiny, the expression “fundamental rights” has long been hijacked to smuggle extraconstitutional theories or personal preferences into judicial decision-making, particularly in Fourteenth Amendment constitutional law, to the detriment of state legislative power. The recent and extraordinarily robust scholarly debate on the meaning of that amendment has done little to bring greater clarity to exactly which legal principles place one right instead of another into that “fundamental” category.
In the pre-Lochner era of Fourteenth Amendment constitutional law, however, one finds a right was “fundamental” when it enjoyed two attributes: it was a preexisting right (enumerated or unenumerated), and it was universally recognizable under the law of the land. In hierarchical order, the “law of the land” is the federal or state constitutions, federal or state statutes made in pursuance of those constitutions, and the common law as recognized in the courts. The universal “due process” or “law of the land” clauses found in the federal and state constitutions are essentially express recognitions of this hierarchical arrangement, paired with the rule of law as it applies to those exercising the powers of government. This higher law principle was illustrated in Magna Carta: to deprive any person of his preexisting rights to life, liberty, or property, each branch of government must act within the existing law of the land. Any actions outside of the law of the land are by definition arbitrary and thus prohibited. And so, the simple difference between a fundamental right and a non-fundamental right was whether it was legally and universally protectable under the law of the land. If within the federal or state spheres of authority, every similarly situated person or citizen could go to an appropriate court and have a right recognized and a remedy provided, then indeed that right was fundamental for the people, the citizens, or subgroups of those people or citizens (such as women). Race could play no role in these categorical distinctions.
Splicing rights into political, natural, social, common law, or other categories was thus unnecessary for this identification process. Under the original legal meaning of the due process clause of the Fourteenth Amendment, it would be nonsensical for the federal judiciary to strike down a nondiscriminatory state law because it supposedly violated a fundamental right. If the right were truly fundamental, then the state would already be protecting it. The privileges or immunities clause protected national-level fundamental rights from state action generally, and the due process clause protected state-level fundamental rights from discriminatory state action. The equal protection clause was a reiteration of the existing nondiscrimination principle already recognized in state due process or “law of the land” constitutional law. Whether depriving people of their lives, liberty, or property, or otherwise affording them protection of their legal rights, the government must apply the law equally and evenly to those who are similarly situated.
Once the Court turned to philosophical, theoretical, or otherwise extralegal standards for determining the nature of fundamental rights, however—an approach rooted primarily in Justice Joseph Bradley’s expansive, natural rights-inspired dissent in Slaughter-House and culminating most colorfully in the majority opinion in Obergefell v. Hodges—then it took for itself the power of the states to rescind or change nondiscriminatory state constitutional clauses, statutes, and common law rules and definitions. Once “fundamental rights” were detached from the established law of the land, the Court was free to selectively incorporate its particular conceptions of rights into the due process clause. Such has been the norm since the Lochner era. Turning back the clock to the pre-incorporation era is unrealistic, but nonetheless, it is not too late for jurists and statesmen interested in legal originalism to consider this preexisting-and-universal standard when searching for fundamental rights.
Revisiting a Modern Example: McDonald v. Chicago
Currently, liberals on the Court often rely upon subjective theories or theory-based precedents to scrutinize state laws, and conservatives look primarily to history and tradition to identify fundamental rights. In his dissent in McDonald v. Chicago, for example, Justice John Paul Stevens wrote that the “bottom” for defining a substantive right in the context of the Fourteenth Amendment was based on Justice Benjamin Cardozo’s “implicit in the concept of ordered liberty” standard. To be suitable for judicial protection, such rights must contribute to “a fair and enlightened system of justice.” They are variously “essential to free government” or necessary for “the maintenance of democratic institutions”; liberty by definition is “the ability independently to define one’s identity.” This was theoretical pondering removed from the established law of the land, of course. Indeed, as Stevens openly admitted, “substantive due process analysis . . . must not be wholly backward looking.”
In other words, fundamental rights worthy of judicial protection do not depend upon established laws or constitutions—the Court can create and protect them, even when they are directly contrary to the law of the land. In appreciating the “searching” approach to judicial review, Stevens wrote, “Recognizing a new liberty right . . . takes that right ‘outside the arena of public debate and legislative action.’” So, for at least some cases, Stevens wrote that federal judges could decide which rights states must protect according to a uniform standard, and the standard for that right can be based on whether the individual enjoys “the ability independently to define one’s identity.” In his legally detached reasoning, Stevens concluded the meaning of “liberty” in the due process clause “cannot be found in a granular inspection of state constitutions.”
On the contrary, state constitutions are the primary source for identifying state-level fundamental rights under the original legal meaning of the due process clause. The conservative majority toyed with this approach in McDonald, but ultimately it neglected to follow through by fully recognizing the preexisting-and-universal standard supported here. After reviewing the right to keep and bear arms in English law, in founding-era literature, and in the context of violent political disputes before and immediately after the Civil War—the “history and tradition” approach—the Court correctly noted that the right to keep and bear arms generally enjoyed widespread popular acceptance in 1868 and was protected under 22 of the 37 state constitutions.
That is all well and good, but what about the status of the right under the other state laws of the land? What exactly were the extents and limits of that right in each of the states? Even further, was the right to keep and bear arms protected in all of the states in 2010? In that year, under various restrictions and regulations, every state indeed allowed for the personal possession of firearms, and so that core area of the right was fundamental under this preexisting-and-universal standard. Further, the right to self-defense was universally recognized in the American judiciary, albeit under various limitations. For state-level fundamental rights, it is the least common denominator of protection among all of the states that determines the extent of the fundamentality (or universality) of that right. So if one were to apply this standard in McDonald, he could argue that Illinois was indeed violating a state-level fundamental right because other citizens in crime-ridden Illinois cities still enjoyed their right to own handguns for self-defense. But whether such non-racial discrimination against dwellers of crime-ridden cities falls within the legal boundaries of state police powers is a question for the state judiciary, not the Supreme Court.
The Corfield and Hurtado Approach
In their recent book on the Fourteenth Amendment, Randy Barnett and Evan Bernick look primarily to Corfield v. Coryell to propose criteria for identifying privileges or immunities to which all Americans are entitled—those rights that are “in their nature, fundamental… and which have, at all times, been enjoyed by the citizens of the several states which compose this Union,” as Justice Bushrod Washington had described Article IV’s state-level privileges or immunities in the 1823 case. For Fourteenth Amendment purposes, Barnett and Bernick write, privileges or immunities of all U.S. citizens are: those that are enumerated in the federal Constitution; those that were enumerated in the Civil Rights Act of 1866; and those that were enumerated later in the federal Constitution. Also, unenumerated fundamental rights are those based on:
the standard laid down in Washington v. Glucksberg for the recognition of ‘fundamental’ substantive-due-process rights: rights that are deeply rooted in the nation’s history and traditions … We suggest that if individual citizens have for at least a generation—that is, thirty years or more—been entitled to enjoy a right as a consequence of the positive constitutional, statutory, or common law of a supermajority of the states, it ought to be presumptively a privilege of US citizenship.
This approach correctly identifies the preexisting principle for fundamental rights, but it lacks the universal principle of Corfield, according to which state-level fundamental rights are those universally protectable “in the several States which compose this Union”—all of the states, not just a “supermajority.” By Barnett and Bernick’s formula, every single person in many states could explicitly reject the protection of a particular right in their law of the land, and yet that supposed “right” would still be “fundamental” and thus worthy of federal judicial imposition upon the people of those states. This is, simply put, a rejection of both federalism and separation of powers. Barnett and Bernick apply the Corfield standard for identifying fundamental rights half-heartedly and thereby support the Court’s routine practice of overriding state-level attempts to provide desirable balances between individual rights and the common good. That is a core task of state legislatures, not federal judges. Teleporting flawed substantive due process doctrines into the privileges or immunities clause does little to reorient the Court to its constitutional role or provide a reliable standard for identifying fundamental rights.
The first era of Fourteenth Amendment constitutional law supports the preexisting-and-universal approach and should serve as a model for legal originalists who want to identify fundamental rights in a legal context. It is important to remember that during this first era, Barron v. Baltimore was still good law. In the 1884 case Hurtado v. California, the Court was considering whether a state-level criminal proceeding carried out on a mere information indictment rather than a grand jury indictment violated the due process clause of the Fourteenth Amendment. In the very first sentence of the opinion, the Court turned to the state’s constitution and statutes. The California Constitution of 1879 read, “Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information,” a clause clearly allowing for the process under the state law of the land. There was no discrimination against Hurtado, racial or otherwise.
The Court then considered the various definitions of due process in the states to determine whether a grand jury indictment was “essential” (fundamental) to the meaning of due process. In California and Wisconsin, the Court noted, state high courts had denied its essential character. In Massachusetts, by contrast, the state supreme court found the opposite. Thus, there was no universal, “fundamental” right to a grand jury indictment because some states did not require such a procedural protection. This same principle applied to substantive rights during this era. As the Court wrote:
A state cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the constitution is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process according to the law of the land. This process in the states is regulated by the law of the state.
The right to a jury indictment was not “fundamental” because the states had not universally agreed that it was essential for due process. This is telling. In my opinion, the original legal construction of the Fourteenth Amendment as demonstrated in Slaughter-House and many other pre-Lochner cases was correct, and it means this: Under the privileges or immunities clause, states cannot infringe upon existing national-level (and thus fundamental) rights, and Congress is free to create new national, fundamental rights through legislation, as long as those rights are derived from its limited authority under the Constitution. Under the due process clause, all branches of state government must abide by their own state-level law of the land when depriving people of life, liberty, or property. That law of the land cannot include racial discrimination. Overlapping with the due process clause is the equal protection clause, which similarly requires the equal application of the law of the land.
This approach is indeed a radical departure from existing Fourteenth Amendment doctrine, but it is also more consistent with the amendment as it was originally interpreted and constructed in the courts of law. The most plausible path toward returning to this original legal meaning is for the Court to get out the same way it got in: just as it selectively incorporated extraconstitutional standards for determining fundamental rights over several decades, so it may selectively de-incorporate them and instead rely upon the original standards. Such a road would increase legal legitimacy and certainty and reflect a stronger adherence to separation of powers and federalism.