Cato Supreme Court Review, 2003-2004

Introduction

This is the third volume of the Cato Supreme Court Review, an annual review of the most significant opinions of the Supreme Court of the United States. This volume includes cases from the term beginning in October 2003 and ending in late-June 2004.

For readers new to our pages, the Cato Supreme Court Review has three principal aims: First, it provides the earliest in-depth review of each Court term. The Review appears on Constitution Day—September 17—soon after the Court completes its work, and shortly before the next term begins on the first Monday in October.

Second, the editors believe that the Constitution is not a technical document of interest only to lawyers and judges. Rather, we aim to bring together top-flight contributors to analyze the term in a manner that will make the Court’s work accessible, insofar as possible, to a diverse audience. Although the Review is a law book, in the sense that it is about the Court and the Constitution, it is written for all citizens interested in the Constitution and the Court’s interpretation of it.

Third, and most important, the Cato Supreme Court Review has a distinctive point of view, which we happily confess: The Review analyzes the Court and its decisions from a classical Madisonian perspective, emphasizing the Constitution’s first principles: individual liberty; secure property rights; federalism; and a government of delegated, enumerated, and thus limited powers.

Fundamental constitutional questions about Madisonian first principles were not in short supply this term, as the trilogy of much watched national security cases amply demonstrated. Each of the cases presented disturbingly broad presidential claims to power—claims that went to the heart of what it means to live under a system of checks-and-balances. In Hamdi v. Rumsfeld and Rumsfeld v. Padilla, the president claimed the unilateral authority to declare an American citizen an enemy combatant and strip him of constitutional rights, including access to courts or counsel. And in Rasul v. Bush, the president contended that his powers as commander-in-chief permitted him to create his own prison system, with its own standards, just beyond our borders, without any meaningful judicial oversight.

Timothy Lynch begins analysis of these cases by articulating a framework, grounded in the Constitution, for balancing civil liberty and national security. Lynch starts with the premise that the Constitution limits the government in both peacetime and wartime, and then articulates a series of fundamental rules to protect civil liberties. Those rules, he explains, turn on three fundamental questions: What is the citizenship of the individual arrested? Where was he arrested, on American soil or on the battlefield? And, what punishment does the government seek to impose? Those questions, says Lynch, lead us back to the text of the Constitution, which underscores that during wartime, the Constitution is not silent and the president is not a power unto himself.

Neal Katyal takes up Rasul v. Bush, which asked whether accused enemy aliens, captured on foreign battlefields and detained in Guantanamo Bay, have any right to test the legality of their detention in U.S. courts. In an opinion that will no doubt be fodder for litigation for years to come, Justice John Paul Stevens ruled that the Guantanamo detainees do have such a right. Just why the Court believed so is less clear. Based on a close reading of Justice Stevens’ opinion, Katyal concludes that Rasul is a potentially revolutionary case, one that has taken us from a constitutional regime in which no alien outside of the United States could challenge detention to one in which virtually anyone held by American forces beyond our shores may do so—and in which the president faces far more restraints on his powers as commander-in-chief than ever before. Katyal concludes that much blame lies with the administration, which pushed for extreme powers—and provoked a judicial backlash.

Finally, Jonathan Turley rounds out the analysis of the national security trilogy with a creative article that examines the Court’s methods of constitutional interpretation by likening them to artistic styles. Turley finds much reason for concern. While the outcomes of these cases could have been worse, he says, Hamdi, Padilla, and Rasul collectively demonstrate that the Court, led by Justice Sandra Day O’Connor, has embraced what he calls judicial impressionism: a style of judging that treats constitutional text and history as something that can be creatively altered to fit the needs of the moment. As Turley notes, this is hardly a new style of judicial analysis in the realm of national security. And, if the past is prologue, its resurgence this term bodes ill for the Court s commitment to safeguarding our rights.

While the national security cases raised unusually important questions, this was a term replete with cases that illuminate first principles. Indeed, the next case addressed by this year’s Review may well have dealt the most under-reported blow to constitutional structure. The facts of Sabri v. United States seem humdrum: The Court upheld the federal power to prosecute a private developer accused of bribing a Minnesota state municipal official. The case is important, argues Gary Lawson—the author of Cato’s friend-of-the-court brief in Sabri—because it presented the Court with an opportunity to reinvigorate the Necessary and Proper Clause, and with it the Founders’ conception of our government as one of limited, enumerated powers. The Court missed that opportunity—underscoring the limits of the supposedly revolutionary federalism jurisprudence of the Rehnquist Court. As Lawson details, Sabri is a microcosm of how far the Court’s understanding of the Constitution has traveled from the Founders’ original design.

In Tennessee v. Lane, the Court once again confronts the dubious claim that states are immune from suit under federal law, this time in a suit alleging the state of Tennessee discriminated against disabled persons and so violated Title II of the Americans with Disabilities Act. Cato scholar Robert Levy argues that the case is a study in constitutional confusion: On the immunity question, says Levy, the Court got it right, recognizing that Tennessee was not entitled to immunity. But the Court reached that result for the wrong reason, by ruling Congress validly abrogated Tennessee’s immunity under section 5 of the Fourteenth Amendment. In fact, according to Levy, there was no need to abrogate state immunity, because the Eleventh Amendment does not grant states immunity from suits under federal law. Levy concludes by confronting the important unasked question in Lane: whether the Commerce Clause provides a constitutional pedigree for Title II of the Americans with Disabilities Act.

Vikram Amar writes that the Court’s decision in Cheney v. U.S. District Court for the District of Columbia provides a window on a key theme this term: the Court s repeated decision not to decide tough questions. In Cheney, public interest groups sued the vice president in an attempt to obtain the names of private lobbyists and oil company officials who allegedly participated in an energy policy working group headed by Cheney. The vice president argued that the doctrine of executive privilege —under which the president is protected from disclosing certain confidential communications—also protected him from making any disclosures. As Amar analyzes the case, the Cheney Court refused to answer a number of important and unsettled questions about the contours of executive privilege, leaving the constitutional limits on executive secrecy in a continued state of disarray.

Too often the Court ignores the robust role that our system of separation of powers has designed for it. Less often, the Court assumes powers inconsistent with constitutional structure. That, I argue in my essay, is what happened in Sosa v. Alvarez-Machain. In Sosa, the immediate question seems rather technical: The plaintiff argued that an obscure 1789 statute, the so-called Alien Tort Statute, authorizes foreign persons to vindicate violations of customary international law in U.S. federal courts. Sosa, however, raises important questions about which branch has primary responsibility for incorporating international law into our legal framework. As I argue in my essay, our constitutional structure places limits on the role of courts in this area—limits weakened by the Court in Sosa.

From constitutional structure, we move to individual rights. Political speech is at the core of the First Amendment: That makes modern campaign finance laws, and their regulation of financial support for political speech, difficult to justify. Nonetheless, at the very beginning of the October 2003 term, the Court upheld one of the most sweeping expansions of campaign finance restrictions in decades: the McCain-Feingold Act. The Supreme Court’s decision in McConnell v. FEC, argues Erik Jaffe—the author of Cato’s friend-of-the-court brief in the case—strikes at the heart of the First Amendment’s jealous protection for core political speech. Jaffe concludes that the Court in McConnell has handed Congress a powerful weapon against speech, and that both freedom and the First Amendment will be the victims.

This year’s internet free speech case, Ashcroft v. ACLU II, presented the Court with its latest opportunity to clarify the confused application of the First Amendment to the internet. In particular, Ashcroft asked whether the Child Online Protection Act (COPA), which broadly regulates online speech in the interest of children, passes constitutional muster. The Court had long avoided resolution of COPA’s constitutionality. But in Ashcroft II, the Court gave us the clearest sign yet that it believes COPA to be constitutionally infirm. First Amendment lawyer and Cato adjunct scholar Robert Corn-Revere argues that the case, even though it did not finally settle the constitutionality of COPA, is highly important, for two reasons. First, the case set a high bar for future regulatory efforts. Second, it highlights a significant doctrinal division between what he identifies as collectivist and individualist accounts of the First Amendment’s protections.

As schoolchildren know, or should know, the American experiment began when persecuted Europeans fled to the New World seeking religious liberty and freedom of conscience. In Locke v. Davey, a case closely watched by school choice advocates, the Court considered whether a Washington State constitutional provision, with nativist roots, justifies exclusion of theology majors from a state scholarship program. As Susanna Dokupil argues, Locke presented the Court with an important opportunity to uphold the principle that the state cannot single out and penalize persons based on their choice to pursue educational ends dictated by religious belief. Unfortunately, in Locke, the Court missed that opportunity, upholding the challenged discrimination. Dokupil discusses the implications of the case for the First Amendment, the future of educational choice, and religious liberty.

In the wake of the September 11 terrorist attacks, federal and state governments have flexed their power to search and arrest citizens—and not just in cases involving enemy combatants. In Hiibel v. Sixth Judicial District Court of Nevada, Nevada police arrested Nevada cowboy Dudley Hiibel. The charge? Hiibel’s refusal to answer police questions—a crime under a Nevada law penalizing noncooperation with police investigations. The Nevada Supreme Court—citing the need to protect citizens against terrorism—upheld the arrest. So, unfortunately, did the U.S. Supreme Court. Christine Klein served as co-counsel on Cato’s friend-of-the court brief in Hiibel. In her article, she argues that the decision represents a new low in the Court’s willingness to police the police; further blurs the content of the right to remain silent; and erodes constitutional protection against police coercion and intimidation.

Hiibel is not the only blow to civil rights: The Fourth Amendment had its roots in American colonists’ hatred of general search warrants, which permitted agents of the Crown to search houses and other property without individualized suspicion. Maryland v. Pringle therefore would have come as a shock to the Founders. In that case, the Court upheld the power of police to arrest persons who are not individually suspected of wrongdoing in certain cases where they are guilty by association. Criminal law expert Tracey Maclin, who authored the ACLU’s friend-of-the-court brief in Pringle, offers a comprehensive analysis of the case, which underscores that the Court effectively has abandoned fidelity to an individualized conception of probable cause. Pringle, much like Hiibel, is likely to bolster police use of the arrest power to coerce the cooperation of innocent citizens.

The Court’s criminal docket has at least one bright spot: Crawford v. Washington, a landmark decision in which the Court rediscovered the principle that an accused has a right to confront his accuser. Richard Friedman, a Confrontation Clause expert who has long advocated a sea change in the Court’s understanding of the confrontation right, dissects Crawford and its implications. As Friedman emphasizes, Crawford is an important victory for constitutional text, original intent, and the rights of the accused, and promises to curb a long-standing prosecutorial abuse: The use of testimony made to police behind closed doors, and out of the presence of the accused, to obtain convictions.

Sometimes, the appeals that the Court doesn’t take are as important as those it does consider. In the October 2003 term, says John Eastman, the Court’s refusal to consider a series of Commerce Clause challenges to environmental land use regulations raises questions about the Court’s commitment to Lopez v. United States and United States v. Morrison, cases in which the Court finally put some restraints on Congress’s power to regulate interstate commerce. As Eastman analyzes the matter, the environmental land use cases before the Court in 2003 showcased an exercise of federal power directly at odds with Lopez and Morrison, and so cried out for review. The Court’s failure to take these cases on appeal, says Eastman, lends credence to the claim that property rights are low on the Court’s list of priorities.

Finally, in a look ahead to the October 2004 term, Supreme Court litigator Thomas C. Goldstein identifies the cases thus far of greatest interest—and the principles at stake. The next term will feature important questions concerning the scope of the Commerce Clause, state power to interfere with freedom of interstate trade, and First Amendment protections for commercial speech. The 2004 term will also bring to a head questions about the constitutionality of the Federal Sentencing Guidelines, as the Court squarely confronts the application of Blakely v. Washington to our federal sentencing system. Goldstein outlines the issues at stake, and ventures some predictions.

I thank our contributors for their generous participation: There would be no Cato Supreme Court Review without them. I thank my colleagues at the Cato Institute’s Center for Constitutional Studies, Roger Pilon, Timothy Lynch, Robert A. Levy—as well as Cato friend Jerry Brito—for valuable editorial contributions; David Lampo for producing and Parker Wallman and Elise Rivera for designing the Review; research assistants Elizabeth Kreul-Starr, Madison Kitchens, Tim Lee, and Thomas Pearson for valuable work in preparing the manuscripts for publication; and interns Jacinda Lanum and Henry Thompson for key all-around assistance.

Again, we reiterate our hope that this volume will deepen understanding of our too often forgotten Madisonian first principles, and give voice to the Framers’ belief that ours is a government of laws and not of men. In so doing we hope also to do justice to a rich legal tradition—now eclipsed by the rise of the modern regulatory state—in which jurists understood that the Constitution reflects, and protects, natural rights of liberty and property, and serves as a bulwark against the abuse of state power.

We hope that you enjoy the third volume of the Cato Supreme Court Review.

Mark K. Moller

Editor in Chief

The Indivisibility of Economic Rights and Personal Liberty

Walter Dellinger

I. Introduction

It is an honor to have been asked to give this lecture in memory of the man for whom this series of lectures has been named, Ken Simon, whose generosity has made possible today’s annual Cato Constitution Day Conference. With much of what I have to say, I believe that Mr. Simon would have found himself in congenial agreement. From some other parts of my remarks, he would perhaps have dissented. But what he has shown by his life and by this lecture series is that he was committed both to libertarian values and to lively, engaged debate. If at times this evening I fall short of advancing all the goals of libertarian thought, I hope at least to advance the goal of engaged debate.

It is a further honor to be the second speaker in a lecture series inaugurated by one of our nation’s most respected jurists, Chief Judge Douglas H. Ginsburg. In the spirit of making this series a continuing dialogue, I will note points of disagreement with Judge Ginsburg’s remarks of a year ago. But I know you all will benefit as much as I have from a careful reading of his essay, which is sweeping in its scope and sharp in its critique of much of American judicial review.¹

Here is my thesis, simply put:

The disparagement by some liberal scholars and jurists of the constitutional protection of economic rights weakens the constitutional foundations of personal liberty.

And conversely: The disparagement by some conservative jurists and scholars of unenumerated personal liberties weakens the constitutional foundation for rights of property, contract, and occupational freedom.

The Constitution—written and unwritten—protects both economic and non-economic liberty. Both are essential, and each supports the other.

II. Is Constitutional Text Exclusive?

Let me begin, as Judge Ginsburg did, with the question of whether the text of the Constitution contains all the liberties—economic and personal—that are rightfully accorded constitutional protection. Here I both endorse some of what he said a year ago, and join issue with him as well.

First, let me say that I agree with Judge Ginsburg about the centrality of the written Constitution and the binding authority of the text as it was generally understood at the time it was written and ratified. As his colleague, Judge Steven Williams, put it correctly and succinctly a few years ago, The search for original understanding is for the meaning that a reasonable person in the relevant setting would have assigned the language.² Divorced from adopters’ understanding of what they were adopting, the text is simply a set of words without legal authority.

The constitutional text, however, cannot contain all of the constitutionally binding fundamental law. There is at least one point of constitutional law, for example, both obvious and profound, that cannot be found within the text of the Constitution. And that is the principle that recognizes the Constitution I hold in my hand—the Federal Constitution of 1787, as amended—as The Constitution, the one that is binding law. You may object that the text of the Constitution does indeed address and resolve the question of whether this Constitution is The Constitution. And you could point to the Article VI Supremacy Clause which states explicitly that This Constitution… shall be the supreme Law of the Land,… any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.…³ Now, I have no doubt that this is one of the most powerful phrases in the Constitution. It resolves once and for all the question of federal supremacy over the states, and in a masterstroke it speaks directly to state court judges, saying that Judges in every State shall be bound thereby.⁴

But neither the Supremacy Clause nor any other provision within the Constitution can make the document the supreme, binding law. That principle of constitutional law must come from outside the document. There is no doubt that our larger constitutional law establishes the federal Constitution of 1787, as amended, as supreme, binding law. Its immediate acceptance, even by opponents of ratification, and the inescapable fact that virtually every interest in every succeeding generation has invoked the document repeatedly as supreme, binding law, are among the powerful indications of this most fundamental of constitutional propositions. But it remains an unwritten constitutional principle.

If a principle external to the written Constitution is necessary to make the Constitution binding, some similar external principle must be invoked to establish either the proposition that This [written] Constitution is the exclusive source of enforceable constitutional rights, or the contrary proposition that it is not the exclusive source. Neither of those propositions can be justified merely by looking inside the document itself.

III. The Assumption of Rights Beyond Text

But that is abstract theory. The more convincing proof of the existence of binding norms outside the text is to be found in the debates surrounding the drafting of the Constitution itself, and in the Framers’ understanding that there were rights—binding rights—before there was a written constitution. During all the years that I taught law students about the debates at the Constitutional Convention, nothing surprised them more than the Framers’ clear recognition that there were norms—binding constitutional norms, in the larger sense of that word—that preceded the drafting of the Constitution, norms that would be binding whether or not included in the document.

One example, discussed at the convention, is the principle of double jeopardy as a limit on the government’s right to appeal, which found its way into the Constitution only after the Bill of Rights was ratified in 1791.⁵ Another is the assumption of at least some Framers that ex post facto principles would preclude retroactive criminal legislation, whether or not such a prohibition was placed in constitutional text. The exchange at the convention between Oliver Ellsworth and Hugh Williamson illustrates this assumption. According to Madison’s notes, Ellsworth contended that there was no lawyer, no civilian who would not say that ex post facto laws were void of themselves, and he concluded that It can not then be necessary to prohibit them.⁶ Hugh Williamson responded not by denying that such a principle existed prior to and outside of any written constitution, but by arguing that placement in text had independent value, observing that Such a prohibitionary clause is in the Constitution of N. Carolina, and tho it has been violated, it has done good there & may do good here, because the Judges can take hold of it.⁷ Moreover, and particularly important here, the text of the Constitution itself refers to rights not named in the document: The Ninth Amendment does not list rights; but it does presume the existence of rights outside the corners of the document.⁸

Similarly, the Fourteenth Amendment, written by the 39th Congress, employs broad language guaranteeing life, liberty, and property, due process, equal protection, and, most important, privileges or immunities against state interference.⁹ Those who argue against the existence of rights not specifically enumerated in the text have a formidable problem with the text and with its delegation of significant interpretative authority to future courts. One can criticize the delegation on grounds of institutional policy—that is, it was unwise to confer such authority—but the rights and the authority to secure them cannot be ignored as constitutional text. Moreover, those who wrote and ratified the Fourteenth Amendment were fully aware that judicial review was an established feature of the Constitution and that broad constitutional phrases were to be given latitudinarian construction: see, for example, Marbury v. Madison,¹⁰ McCulloch v. Maryland,¹¹ Gibbons v. Ogden,¹² Fletcher v. Peck,¹³ and Swift v. Tyson.¹⁴ Thus, even the text of the Constitution contemplates the enforcement of rights not specified in the text.

IV. The Excessive Rejection of Economic Rights

Assuming, then, that the liberty protected against state interference includes rights not specifically named in the text, should it be read to include judicially enforceable economic and commercial rights? Throughout much of American history, especially recent history, that has been one of the federal judiciary’s most contentious issues. In the last major shift, the New Deal Court abandoned judicial protection of economic rights. But in its zeal to curb what some saw as the Court’s excessive invalidation of state and federal legislation during the so-called Lochner era,¹⁵ the New Deal Court swept far too broadly in repudiating the protection of economic liberties. For in so doing, the Court also weakened the basis for protecting personal liberties.

No justice was more influential in weakening the protection of both economic rights and unenumerated personal liberties than William O. Douglas. In 1941, writing for a unanimous Court in Olsen v. Nebraska,¹⁶ Douglas sustained a legislative limit on the amount of compensation an employment agency could collect for its services. What is striking about the opinion is not its rejection of the challenge to the law but its virtual rejection of judicial review itself in the field of economic regulation. The agency had argued that the law advanced no legitimate goal, since excessive charges—the presumed evil to be remedied—did not exist due to the vigorous and open competition among employment agencies. Douglas’s response was abrupt and startling: There is no necessity for the state to demonstrate before us that evils persist despite the competition which attends bargaining in this field.¹⁷ That blunt contention that the state owes no explanation for its restraint on liberty casts aside what ought to be a fundamental principle of constitutional jurisprudence: Before the state deprives a citizen of liberty, it must have a reason—and a good one, too. Unlike the overwrought parent, the state cannot say simply: Because I say so, that’s why. Here the challenger claims the state’s asserted reason is without foundation. Instead of determining whether the state’s reason is in fact plausible, however, the Court says simply that it is not necessary for the state to give a reason.

The right approach was demonstrated a few years later by a state court judge—Sam Ervin of North Carolina, who was later to win fame as the senator chairing the Watergate hearings. Ervin would not have struck down regulatory legislation that plausibly advanced workplace safety or clean air and water, but he did demand that the state have an actual justification for any restrictions it imposed. Raw preferences were not enough to sustain a statute. A leading example of Ervin’s approach is found in his opinion in 1949 in State v. Ballance.¹⁸

Owen Ballance was convicted of the misdemeanor crime of being a photographer for hire without first having been licensed by the Board of Photographic Examiners of North Carolina, a group appointed by the governor, each of whom must have been a professional photographer for not fewer than five years. Needless to say, as is so often the case with occupational licensing schemes, the members of the board were not anxious to license competitors. Ervin understood that and more. In overturning Ballance’s conviction, he wrote that the framers of the North Carolina Constitution loved liberty and loathed tyranny, and were convinced that government itself must be compelled to respect the inherent rights of the individual if freedom is to be preserved and oppression is to be prevented.¹⁹

Yet a month before Ervin wrote that, the U.S. Supreme Court had expressly stated in the Lincoln Federal case²⁰ that the federal Constitution placed no limits on the power to legislate in the area of business and commercial affairs "so long as [the] laws do not run afoul of some specific federal constitutional prohibition....²¹ Applying a provision of the North Carolina Constitution,²² but making clear that he disagreed with the U.S. Supreme Court’s constricted view of liberty, Ervin wrote that the liberty of the individual does not consist simply of the right to be free of arbitrary physical restraint or servitude, but… ‘includes the right of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or vocation.…’"²³

Ervin noted that these liberties can be limited by the exercise of the police powers, but went on to make the essential point that in exercising these powers the legislature must have in view the good of the citizens as a whole rather than the interests of a particular class.²⁴ In a succinct formulation of the proper judicial standard, he concluded that his exercise of the power to curb liberty by legislation must be reasonably necessary to promote the accomplishment of a public good, or to prevent the infliction of a public harm.²⁵

Rather than follow the U.S. Supreme Court’s wholesale abandonment of judicial scrutiny of economic legislation, Ervin put the state to its proof, and found that proof lacking in Ballance. It is undoubtedly true that the photographer must possess skill. But so must the actor, the baker, the bookbinder, the bookkeeper, the carpenter, the cook, the editor, the farmer, the goldsmith, the horseshoer… and on and on through the alphabet until he concluded by asking [w]ho would maintain that the legislature would promote the general welfare by requiring a mental and moral examination preliminary to permitting individuals to engage in these vocations merely because they involve knowledge and skill?²⁶

In an eloquent passage that refutes the notion that economic liberties are unworthy of protection, Ervin wrote that In the economy of nature, toil is necessary to support human life, and essential to develop the human spirit.²⁷ Photography, he observed, is an honored calling which contributes much satisfaction to living. Like all honest work, it is ennobling.²⁸

Ervin was not an advocate of returning to the Lochner era in which justices freely set aside state and local legislation.²⁹ Indeed, he had recently joined the opinion of the North Carolina Supreme Court³⁰ that was one of the two decisions upheld in Lincoln Federal.³¹ But neither would he abandon wholesale the protection of economic liberty.

V. The Weakened Foundation for Personal Liberty

The New Deal Court’s elimination of any effective protection of economic rights seriously weakened the bases for protecting personal liberty as well. This was dramatically illustrated by Justice Douglas’s inept opinion in Griswold v. Connecticut.³² Because he and his New Deal colleagues, as part of their project of abandoning protection of economic rights, had rejected any meaningful judicial protection of liberties not specifically mentioned in the constitutional text, he was forced to write a disingenuous opinion in Griswold in order to strike down a state law that prohibited couples in Connecticut from buying contraceptives, a right not specifically mentioned in the text.

Griswold—profoundly right in its result—is one of the modern era’s most important constitutional decisions. But it should never have rested on such an inadequate foundation as Douglas erected. Given the Court’s repudiation of economic liberty, however, he must have felt that he had to distort otherwise important supporting decisions like Pierce v. Society of Sisters,³³ Pierce v. Hill Military Academy,³⁴ and Meyer v. Nebraska³⁵ to avoid acknowledging that those decisions had recognized and protected economic liberties. As Douglas’s Griswold opinion shows, a jurisprudence indifferent to whether there is any public purpose served by depriving Owen Ballance of his right to his chosen occupation is hard-pressed to articulate a theory for protecting access to contraceptives against a state’s flimsy arguments restricting access.³⁶

In the inaugural Simon Lecture, Judge Ginsburg is properly dismissive of the Douglas opinion in Griswold and its reliance on penumbras and emanations from tangentially relevant clauses.³⁷ But while right in critiquing Douglas’s opinion in Griswold, Ginsburg fails to recognize the proper basis that does exist for protecting personal liberties. Thus, his critique could serve also to undercut the case for the judicial protection of economic rights.

Judge Ginsburg believes that a jurist devoted to the Constitution as written might conclude that the document says nothing about the privacy of ‘intimate relation[s] of husband and wife,’ and thereby remits the citizenry to the political processes of their respective states… ³⁸ While true—such a jurist might so conclude—the view expressed there does not resolve the issue. For nowhere does the text confirm that state legislatures have such extraordinary regulatory power in the first instance. For reasons I have set forth at greater length elsewhere,³⁹ there is a sound historical basis for assuming that fundamental personal liberties can be invaded only by a government with a compelling interest in doing so, and the text itself in the Ninth and Fourteenth Amendments recognizes the existence of such rights and privileges.

VI. The Weakened Foundation of Economic Rights

The failure to protect either economic or personal liberty inevitably weakens both. Subjecting the Connecticut birth control ordinance to the kind of judicial scrutiny that Justice Ervin gave the North Carolina occupational licensing law would properly have brought about its demise. But the Supreme Court’s economic decisions had taken that argument away from those who challenged the Connecticut ban. Conversely, a version of constitutional law that so defers to legislative fiat that it would leave the birth control law standing surely weakens the case for protecting economic rights. If the state, on such flimsy grounds as were put forward to justify the birth control ban, could intrude to such an extraordinary degree in the intimate lives of individuals and couples, it would be difficult to justify judicial intervention in the state’s economic choices, however poorly grounded.

Consider, for example, the Court’s decisions last term involving punitive damages and homosexual sodomy. In State Farm Mutual Automobile Insurance Co. v. Campbell⁴⁰ the Court sharply limited state awards of punitive damages. In Lawrence v. Texas⁴¹ the Court struck down the state’s law criminalizing homosexual sodomy. Neither opinion cited a textual provision in the Constitution that addressed, specifically, sexual intimacy or punitive damages. Both decisions imposed constitutional limits on what sovereign states could do with their civil and criminal enforcement machinery. In both cases the opinion of the Court was written by Justice Anthony Kennedy. Both seem to me to be correctly decided, and each rests on a judicial determination that property and liberty, respectively, were being compromised by governmental actions that had no sufficient public justification. Read the two opinions by Justice Kennedy back to back. They seem like one case, with two applications. Each is strengthened by the other.

Indeed, it is hard to imagine either State Farm or Lawrence without the other, or without their precursors beginning with Griswold. In an alternative constitutional universe in which the Court had found that Connecticut was free to criminalize the use of birth control by married couples and Texas was free to criminalize homosexual relations, it is difficult to imagine that same Court would override Utah’s determination to utilize very high punitive damages.⁴² Yet if one accepts Judge Ginsburg’s critique of Griswold, and his rejection of any efforts to enforce personal liberties not specifically set out in text, one searches in vain for a convincing ground for intervening in the punitive damage determinations of Utah and other states.

Economic rights, property rights, and personal rights have been joined, appropriately, since the time of the founding. In Federalist No. 10, for example, when Madison spoke of the rights that will be more secure in a national republic, he intermingled protection against paper money with protection against repressive religious sects.⁴³ He echoed and elaborated on those thoughts a few years later in his famous essay, Property, in the National Gazette: [A]s a man is said to have a right to his property, he may be equally said to have a property in his rights,⁴⁴ after which he gave several examples of both economic and personal rights. In a passage from a nineteenth century case that eerily echoes today’s debates on personal and economic liberty, a nearly unanimous Supreme Court in Loan Association v. Topeka wrote:

There are limitations on… [the] power of [our governments, state and national] which grow out of the essential nature of all free governments. [These are] implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which… should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B. The court also says: Nor would any court hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D.⁴⁵

The intertwined nature of economic liberty and personal freedom has never been better explicated than by the author whose name this auditorium bears, F.A. Hayek. In his most famous critique of centralized planning, The Road to Serfdom, Hayek speaks of economic freedom as the prerequisite of all other freedoms.⁴⁶

As a practical matter, however, the pressing question is not whether economic liberties are protected by the Constitution but how aggressive or restrained unelected judges should be in securing liberty—whether economic or personal. Of particular importance in that regard is the question of how much deference judges should give to elected representatives pursuing public policy. When should libertarian principles give way? A truer libertarian than I would invalidate far more legislation than I would think appropriate. For me, at least, the outcomes of democratic processes have great claim to legitimacy, and a lack of certainty about whether one’s own reading of the Constitution is correct counsels caution and restraint.

Yet reading Hayek is instructive. In The Road to Serfdom, at least, he was not as doctrinaire as some have believed. He recognized a significant role for government, for example, especially in establishing the rule of law. Hayek believed that it is possible to deliberately create a system within which competition will work as beneficially as possible, but he also criticized the wooden insistence of some [classical] liberals on some certain rough rules of thumb, above all the principle of laissez faire. Yet, in a sense, this was necessary and unavoidable,⁴⁷ he notes.

Thus, Hayek believed that some controls on the methods of production—as long as they affect all potential producers equally—may not be anti-competitive:

To prohibit the use of certain poisonous substances or to require special precautions in their use, to limit working hours or to require certain sanitary arrangements, is fully compatible with the preservation of competition. The only question here is whether in the particular instance the advantages gained are greater than the social costs which they impose.⁴⁸

Nor, for Hayek, was the preservation of competition incompatible with an extensive system of social services—so long as the organization of these services is not designed in such a way as to make competition ineffective over wide fields.⁴⁹ Consistent with his respect for the rule of law, Hayek also believed, of course, that preventing fraud and deception, including exploitation of ignorance, was a legitimate governmental function.

There is nothing in the basic principles of [classical] liberalism, Hayek believed, that make it a stationary creed; there are no hard and fast rules fixed once and for all.⁵⁰ But there is a fundamental principle, a principle capable of an infinite variety of applications. That principle is that in the ordering of our affairs we should make as much use as possible of the spontaneous forces of society, and resort as little as possible… to coercion.⁵¹ What a wonderful phrase that is—the spontaneous forces of society. How perfectly it captures Hayek’s vision. And how nicely it ties together the economic and personal liberties that in every century seek refuge from coercion and oppression.

Notes

*Douglas B. Maggs Professor of Law, Duke University Law School; Head of Appellate Practice, O’Melveny & Myers LLP; Acting Solicitor General of the United States, 1996–97. These remarks, the second annual B. Kenneth Simon Lecture in Constitutional Thought, were delivered at the Cato Institute on September 17, 2003.

1 Douglas H. Ginsburg, On Constitutionalism, 2002–2003 Cato Sup. Ct. Rev. 7 (2003).

2 Stephen F. Williams, Restoring Context, Distorting Text: Legislative History and the Problem of Age, 66 Geo. Wash. L. Rev. 1366, 1368 (1998).

3 U.S. Const. art. VI, § 1 cl. 2.

4 Id.

5 Indeed, are we to suppose that we had no rights against the federal government, except those few that were in the original document, until after the Bill of Rights was added? See Roger Pilon, Restoring Constitutional Government, 2001–2002 Cato Sup. Ct. Rev. vii, xx (2002).

6 James Madison, Notes of Debates in the Federal Convention of 1787 510 (1966).

7 Id. at 511.

8 U.S. Const. amend. IX. The Ninth Amendment was written to address a practical problem discussed at the Convention. Because we have in principle an infinite number of rights, thanks to the creativity language allows in describing them, it would be impossible to list all of our rights in a bill of rights. Therefore, since the standard canon of legal construction—expressio unius exclusio alterius—implies that the enumeration of some rights for protection should be read as excluding other, unenumerated rights from protection, the Ninth Amendment had to be written: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. See The Rights Retained by the People: The History and Meaning of the Ninth Amendment, Vol. I and II (Randy Barnett ed., 1989, 1993).

9 U.S. Const. amend. XIV. See Kimberly C. Shankman and Roger Pilon, Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals, and the Federal Government (Cato Policy Analysis No. 326, 1998).

10 5 U.S. 137 (1803).

11 17 U.S. 316 (1819).

12 22 U.S. 1 (1824).

13 10 U.S. 87 (1810).

14 41 U.S. 1 (1842).

15 Lochner v. New York, 198 U.S. 45 (1905).

16 313 U.S. 236 (1941).

17 Id. at 246 (emphasis added).

18 51 S.E.2d 731 (N.C. 1949).

19 Id. at 734.

20 Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949).

21 Id. at 536 (emphasis added).

22 Article I, section 1 of the North Carolina Constitution, adopted after the Civil War, provides that among the inalienable rights of individuals are life, liberty and the enjoyment of the fruits of their own labor, and the pursuit of happiness, and section 17 provides that no person shall be in any manner deprived of his life, liberty, or property, but by the law of the land. That last phrase, Erwin wrote, is synonymous with ‘due process of law’.…, 51 S.E.2d at 734

23 Id. (quoting Am. Jur. Constitutional Law § 329).

24 51 S.E.2d at 735.

25 Id.

26 Id. at 735–36.

27 Id. at 735.

28 Id.

29 But see David E. Bernstein, Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism, 82 Geo. L.J. 1 (2003).

30 State v. Whitaker, 45 S.E.2d 860 (N.C. 1947).

31 335 U.S. 521, 530–37 (1949).

32 381 U.S. 479 (1965).

33 268 U.S. 510 (1925).

34 Id.

35 262 U.S. 390 (1923).

36 See also Randy E. Barnett, Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas, 2002–2003 Cato Sup. Ct. Rev. 21, 29–31 (2003).

37 Douglas H. Ginsburg, On Constitutionalism, 2002–2003 Cato Sup. Ct. Rev. 7, 19 (2003).

38 Id. (quoting Griswold v. Connecticut, 381 U.S. 479, 482 (1965)).

39 Walter Dellinger & Gene Sperling, Abortion and the Supreme Court: The Retreat from Roe v. Wade, 138 U. Pa. L. Rev. 83 (1989).

40 538 U.S. 408 (2003). See Robert A. Levy, The Conservative Split on Punitive Damages: State Farm Mutual Automobile Insurance Co. v. Campbell, 2002–2003 Cato Sup. Ct. Rev. 159 (2003).

41 539 U.S. 558 (2003). See Barnett, Justice Kennedy’s Libertarian Revolution, supra note 36.

42 538 U.S. 408 (2003).

43 The Federalist No. 10, at 79 (James Madison) (C. Kesler & C. Rossiter eds., 1961).

44 James Madison, Property, 1 National Gazette 174, Mar. 29, 1792.

45 87 U.S. 655, 663 (1875).

46 F.A. Hayek, The Road to Serfdom 110 (50th anniv. edition, 1994).

47 Id. at 21.

48 Id. at 43.

49 Id. Hayek was not making a normative judgment about such services, of course; he was simply making a point about their compatibility with preserving competition. In fact, in the preface to the 1976 edition, he said: "When I wrote [The Road to Serfdom], I had by no means sufficiently freed myself from all the prejudices and superstitions dominating general opinion." F.A. Hayek, The Road to Serfdom xxii (1976).

50 Hayek, supra note 46, at 21.

51 Id. at 9.

Power and Liberty in Wartime

Timothy Lynch

I. Introduction

Inter arma silent leges is a legal maxim that says when a country is at war, the laws must be silent. It is a controversial legal concept because it basically means that individual liberty must be subordinated to state power in wartime. America’s political and legal institutions have grappled with this doctrine in previous wars and are grappling with it once again in the aftermath of the catastrophic terrorist attacks of September 11, 2001. To protect the country from additional attacks, President Bush made it clear that he wanted to wield extraordinary powers. Many of the constitutional protections that had been designed to safeguard individual liberty would have to yield to those powers. To be sure, President Bush did not make a dramatic announcement to that effect before a joint session of Congress, but his position was clear enough from the official papers that his legal representatives filed in federal court in terrorism-related litigation. Although the president did not explicitly invoke the inter arma silent leges maxim, it was the essence of his plan to combat terrorists.

In three landmark arguments before the Supreme Court—Hamdi v. Rumsfeld,¹ Rumsfeld v. Padilla,² and Rasul v. Bush³—Bush administration lawyers maintained that the president could, in his discretion as commander-in-chief, arrest any person in the world and confine that person incommunicado in a prison cell indefinitely. No access had to be granted to family members and no access had to be granted to a lawyer. According to President Bush, it did not matter if the prisoner was an American citizen, and it did not matter if the person was seized on a battlefield overseas or off the streets of an American city. So long as the president designated the prisoner as an enemy combatant, the secretary of defense could treat the prisoner as if he essentially had no legal rights. Through his legal representatives, the president informed the Supreme Court that it could not second-guess his decision to imprison such individuals.⁴ Even though there were only two American citizens imprisoned on the basis of this legal rationale, the constitutional stakes were enormous. If the president could secure a legal precedent from the Supreme Court that validated his interpretation of the Constitution, there would be no limit on the number of citizens who might be arrested and imprisoned in years to come. Fortunately, in a triumph for liberty, the Supreme Court decisively rejected the president’s reading of the law. By a margin of 8–1, the Court declared President Bush’s enemy combatant detention policy to be unconstitutional in Hamdi.⁵ The Supreme Court did not reach the merits of the Padilla case because it found a fatal jurisdictional problem in the litigation.⁶ And in Rasul, the Court held that federal courts had jurisdiction to entertain habeas corpus petitions from foreign nationals held abroad.⁷

The war against al-Qaeda is unlike any war that America has ever fought. Al-Qaeda terrorists are much more dangerous than a band of criminals. Simply to file a murder indictment against Osama bin Laden and his top lieutenants for the mass murder of September 11, 2001, would have been woefully inadequate. This is a real war—and yet, this enemy cannot be pinpointed on a map because it is not a nation-state. Further, al-Qaeda operatives do not wear uniforms—they impersonate civilians and, worse, their objective is to commit war crimes by murdering as many Americans as they possibly can. Given the unusual character of this war, the rationale of some of the Supreme Court’s wartime precedents may be inapplicable. Other precedents were wrongheaded when they were initially decided. To sort through the complexities of this new conflict, this article will present a legal paradigm that can properly resolve the tension between power and liberty in wartime under the American Constitution.

Unlike the simple and sweeping rules-of-war-paradigm advanced by the Bush administration, the paradigm set out below begins with three threshold questions, each of which has constitutional implications: (1) What is the status of the individual in question—is he a citizen, illegal immigrant, or nonresident alien? (2) Where was the individual seized—on American soil or an overseas battlefield? (3) What punishment does the government seek to impose—deportation, detention, or execution? Such factors can be pivotal in resolving a constitutional controversy involving arrest, imprisonment, and trial.

The primary objective of this article is not to analyze the Supreme Court’s decisions in Hamdi, Padilla, and Rasul. Rather, the goal is to outline a normative model that describes how the Court should have tackled those cases, as well as similar cases that are likely to arise as the war on terror unfolds. In that context, the Court’s three opinions provide a starting point to establish principles that can guide the justices in balancing civil liberties and national security. Naturally, the ground rules that control that tradeoff cannot be finalized in this brief article. But crucial issues are at stake, and a timely examination of those issues—if only to settle on a framework that might lead to ultimate solutions—is urgently needed.

The baseline, insists Justice Antonin Scalia, must be the U.S. Constitution. He reminds us that the doctrine of inter arma silent leges has no place in the interpretation and application of [our] Constitution.⁸ That is because our founding document fully anticipates the necessity of wartime measures. It is a legal charter that empowers and limits government in both peacetime and wartime. Our commitment to liberty, the Constitution, and the rule of law is put to the ultimate test when government officials seek to silence those limits during wartime.

II. The Enemy Combatant Cases

Before delving into many of the complex constitutional issues that have arisen in recent years, it will be useful to briefly review the facts of the landmark enemy combatant cases that were handed down by the Supreme Court at the conclusion of its 2003–2004 term. It will also be useful to review an enemy combatant case that has not yet reached the Supreme Court, or received much notoriety, namely, the imprisonment of Ali Saleh Kahlah al-Marri.

A. Yaser Hamdi: American Citizen Seized Abroad

After the vicious attacks of September 11, 2001, President Bush dispatched U.S. military forces to Afghanistan with a mission to subdue al-Qaeda and quell the Taliban regime that was known to support it.⁹ Yaser Hamdi was taken prisoner by soldiers of the Northern Alliance, which is a coalition of military groups opposed to the Taliban government. The U.S. military, in turn, transferred Hamdi to the U.S. Naval Base at Guantanamo Bay, Cuba, in January 2002.¹⁰ A few months later, the prison authorities at Guantanamo discovered that Hamdi was an American citizen by virtue of his having been born in Louisiana in 1980.¹¹ After that revelation, the Department of Defense transferred Hamdi to a naval brig in Norfolk, Virginia. President Bush declared Hamdi an enemy combatant, which meant that Hamdi was not going to be charged with a crime and that he was not entitled to prisoner of war protections under international law.¹²

In June 2002, Hamdi’s father, Esam Foulid Hamdi, filed a petition for a writ of habeas corpus on his son’s behalf. President Bush’s lawyers urged the federal courts to summarily dismiss the petition because the courts could not second-guess the president once he designated any person to be an enemy combatant.¹³ Hamdi’s lawyers argued that a summary procedure would be unconstitutional. Before a habeas petition could be dismissed, they maintained, Hamdi had to have an opportunity to present his side of the case and to rebut the government’s allegations.

The issue fractured the Supreme Court.¹⁴ Although only a plurality of the Court could agree on the proper way to handle such habeas petitions, fully eight members of the Court agreed with Hamdi that a summary procedure would violate the Constitution. Only one member of the Court, Justice Clarence Thomas, agreed with the sweeping proposition that the courts were incapable of resolving habeas petitions in wartime.¹⁵

B. Jose Padilla: American Citizen Seized in the United States

Jose Padilla was arrested by federal law enforcement agents at Chicago’s O’Hare International Airport in May 2002. Padilla, who is an American citizen, had just alighted from a flight that had originated in Pakistan.¹⁶ Attorney General John Ashcroft announced the arrest and said Padilla was engaged in a plot to detonate a dirty bomb in the United States.¹⁷

President Bush declared Padilla an enemy combatant who had close ties to al-Qaeda.¹⁸ The president then ordered Secretary of Defense Donald Rumsfeld to take Padilla into custody and to transfer him to a military brig.¹⁹ Padilla was taken to the Consolidated Naval Brig in Charleston, South Carolina. Like Hamdi, Padilla was held incommunicado—no access to family members or an attorney.

A petition for a writ of habeas corpus was filed on Padilla’s behalf and that petition alleged that his imprisonment was unlawful. The Bush administration responded to that petition by urging the federal district court to summarily dismiss the petition because it had been filed in the wrong jurisdiction and because, on the merits, the court could not second-guess President Bush’s enemy combatant designation.²⁰ Padilla’s attorneys argued that, at a bare minimum, they had to have their day in court to present a defense to the government’s allegations.²¹

In a 5–4 decision, the Supreme Court ruled that Padilla’s habeas petition did suffer from a fatal jurisdictional defect.²² The petition could be refiled in the appropriate jurisdiction, but the case would have to be reargued. Four members of the Court found no jurisdictional problem. On the merits, the four dissenters said there could be only one possible answer to the question whether [Padilla] is entitled to a hearing on the justification for his detention.²³ Given that strong statement, it is abundantly clear that when the case is reargued, the Bush administration will not be able to prevent Padilla from having his day in court to present a defense to the allegations that have been leveled against him.²⁴

C. Fawzi Khalid Abdullah Fahad al-Odah: Foreign National Seized Abroad

Fawzi Khalid Abdullah Fahad al-Odah is a citizen of Kuwait.²⁵ He was seized in Afghanistan during the war between American military forces and the forces of the Taliban regime. Because the U.S. military considered al-Odah to be a member of the hostile forces, he was transferred to the Guantanamo Bay prison camp, where he has been imprisoned with approximately 600 other non-Americans who have been captured abroad.²⁶

A petition for a writ of habeas corpus was subsequently filed on al-Odah’s behalf and that petition alleged that his imprisonment was illegal because he had never been a combatant against the United States. President Bush had previously designated al-Odah and all of the other prisoners at Guantanamo Bay to be enemy combatants. Thus, the president’s lawyers urged the federal judiciary to summarily dismiss the petition because the federal judiciary could not second-guess the president’s enemy combatant designation and because the federal judiciary lacked jurisdiction to hear habeas claims from noncitizens who are captured abroad and held abroad.²⁷

The Supreme Court, in a 6–3 decision, held that U.S. courts do have jurisdiction to hear habeas corpus petitions that allege illegal imprisonment by foreign nationals that are captured and held abroad.²⁸ Three members of the Court concluded that the federal habeas statute simply did not extend to aliens detained by the United States overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts.²⁹

D. Ali Saleh Kahlah al-Marri: Foreign National Seized in the United States

Ali Saleh Kahlah al-Marri is a citizen of Qatar. Just a day before the September 11, 2001, terrorist attacks, al-Marri entered the United States with his wife and five children. Al-Marri was traveling on a student visa and he says that his plan was to earn a master’s degree at Bradley University in Peoria, Illinois, where he had previously earned a bachelor’s degree in 1991.³⁰

Al-Marri was arrested on a material witness warrant by the Federal Bureau of Investigation in December 2001. He was subsequently charged with making false statements to the FBI and with identity and credit card fraud. Al-Marri denied the allegations and prepared for his trial on those charges. With his trial only four weeks away, President Bush declared al-Marri to be an enemy combatant.³¹ Acting on the president’s orders, the U.S. military removed al-Marri from a civilian prison facility in Illinois and transferred him to a navy brig in South Carolina. Like Hamdi and Padilla, al-Marri was then held incommunicado—no access to family members and no access to legal counsel.

In July 2003, a petition for a writ of habeas corpus was filed on al-Marri’s behalf and that petition alleged that his imprisonment was unlawful. President Bush’s lawyers responded by urging the district court to summarily dismiss the petition because of jurisdictional errors.³² Al-Marri’s petition was dismissed by the district court and an appeal to the Supreme Court is presently pending.³³

III. The Power of Government to Seize and Imprison Citizens Within American Borders

A. Seizure

Absent an invasion or rebellion on U.S. territory, the Fourth Amendment establishes the fundamental law regarding the parameters of the government’s power to arrest an individual. The Fourth Amendment provides, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.³⁴

The arrest of a person is the quintessential seizure under the Fourth Amendment.³⁵