While the government may have discretion to act outside of the courts, its officers often will not, allowing due process to play out in the courts.
Dreams are surreal, of course, and often you wonder where in the world some dream could have come from. In this instance, though, I think I know: I suspect that my dream was prompted by a post on this very blog. In any case, it was a dream about Griswold v. Connecticut— the old, seminal (albeit anti-seminal) contraception decision.
In my dream, the case and the result were the same, but the reasoning was completely different. I forget who wrote the majority opinion. Harlan, maybe. Or White. Definitely not Douglas. There was nothing in the opinion about “emanations” and “penumbras.” No effusive (and, given Douglas’s authorship, ironic) paeans to the nobility and sanctity of marriage. It was a due process decision–but real due process. Procedural due process, not substantive.
Due process, the decision explained, means that restrictions on life, liberty, or property must be imposed in accordance with “law”; and “law” is not equivalent to official coercion, or to “whatever the government does.” Under that sort of conception, the due process clause would be pointless. The opinion went on to explain what “law” or law-like process entails. For this purpose, the opinion drew heavily on Lon Fuller’s (then quite recent) classic The Morality of Law, which had expounded what was sometimes described as a kind of “procedural natural law.”
Law, Fuller had maintained, is “the enterprise of subjecting human conduct to the governance of rules,” and this enterprise entails that legal enactments must satisfy, at least minimally, a number of requirements: generality, prospectivity, publicity, and so forth. These requirements follow from the nature of the enterprise. Fuller’s explanations were commonsensical, and powerful. Thus, an edict applicable only to some particular person or situation is not a rule. And people can only obey rules that have already been adopted, not rules that will be adopted in the future. People also can’t obey rules that are kept secret. And so forth. Official enactments or decrees that failed to achieve some level of compliance with these requirements were not actually “law.”
One of Fuller’s requirements was “congruence between official action and the law”– between what is sometimes called the law “on the books” and the law “in action.” Suppose there are lots and lots of enacted rules (so that hardly anyone can avoid violating some of them from time to time), but officials mostly leave the rules unimplemented, enforcing a rule only occasionally when there is some special reason to do so. Nobody would ever be convicted except under an enacted rule. And yet such a regime is not actually “rule of law,” but rather rule of official discretion– precisely what “rule of law” is supposed to free us from. This requirement– namely, of “congruence between official action and the law”– figured centrally in the majority opinion in the Griswold of my dream. Or at least, that’s how I remember it.
The opinion explained that a criminal prohibition that is duly enacted but then almost never enforced is not really a law in the due process or “morality of law” sense. It is true, the opinion conceded, that almost no law is enforced against every single violation– even against every known violation. There has to be some room for official judgment about whether and when to enforce a law. But when a law has been on the books for years, even decades, and when it has almost never been enforced even in the face of rampant, open noncompliance, government cannot just suddenly revive the law and enforce it against some hapless soul who is basically doing what everybody else has been doing with the government’s conspicuous acquiescence. And the opinion proceeded to elaborate with real passion and eloquence– so, yes, I suppose the author was probably Harlan rather than White– on how oppressive a government operating in this erratic manner might become.
Towards the end of the dream I had a glimpse of the aftermath– of the future. A few years later, when Roe v. Wade came before the Court, an argument was made that a right to abortion was somehow contained in or implied by the due process clause (even though nobody had realized this until just recently, more than a century after that provision had been adopted). The Court rejected this argument, 9-0, peremptorily and almost contemptuously. It was utterly far-fetched, the Court said, to suggest at this late date that the clause had anything at all to do with abortion. Abortion presented a difficult and important issue, to be sure, but like almost all other issues it should be dealt with through the normal democratic processes. As for substantive due process more generally, . . . well, that idea had been tried and thoroughly discredited. The Justices were not so reckless, the opinion explained, or so oblivious, as to head down that tortuous and disreputable path a second time.
Given this outcome, Eisenstandt v. Baird was never litigated. The case disappeared from history. Same for Planned Parenthood v. Casey. So the nation was spared sententious pseudo-philosophizing about “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” and pathetically hubristic pronouncements about the Supreme Court “call[ing] the contending sides of a national controversy to end their national division.” Of course, Romer v. Evans and Texas v. Lawrence were wiped out as well.
The changes were not all subtractions. For example, when a President began simply decreeing that selective provisions of an ambitious law regulating health care would not be enforced as provided in the law, Griswold was directly on point, with its exposition of the requirement of “congruence between official action and the law”and its eloquent warnings of the dangers of discretionary government. Likewise when the IRS was found to have been selectively targeting particular kinds of taxpayers based on their political stances.
And when divisive cultural issues arose– like abortion, or assisted suicide, or same-sex marriage– legislatures (aware now that they were the responsible decision-makers, not merely screeners for the Justices) debated and addressed these issues with due concern for their complexities, context, and history. For the most part, anyway: even in my dream, legislative decisions were not always wise, careful, or properly respectful. Still, they compared favorably in this regard with, say, Supreme Court decisions that dispose of difficult and culturally divisive issues by peremptorily declaring, without citing any cogent supporting evidence, that a majority has acted malevolently from “a bare desire to harm a politically unpopular group.”
There were also differences in the legal academy. Whole aisles of ponderous and visionary books about constitutional interpretation and rights to this, that, or the other disappeared from the libraries (thus opening up more space for student carrels). The glamorous fields that attracted the brightest and most ambitious legal scholars were more in the private law area. Some of the same names appeared, but in different contexts. For example, although this is hazy, I seem to recall the Bruce Ackerman was still prominent– but as a learned scholar of . . . was it property law? Jack Balkin made a cameo appearance in the dream as well– as a master of admiralty law, I think it was.
I don’t have many happy dreams, but this was definitely one. Alas, it was only a dream. Ah for what might have been!