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With a close analysis of urgent constitutional questions-abortion, physician-assisted suicide, medical marijuana, gay marriage, cloning, and U.S. drug policy-Foley shows how current constitutional interpretation has gone astray. Without the bias of any particular political agenda, she argues convincingly that we need to return to original conceptions of the Constitution and restore personal freedoms that have gradually diminished over time.
Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction. -Letter from Thomas Jefferson to Wilson Nicholas, 1803
A middle-aged, married father of two is diagnosed with testicular cancer. The cancer spreads through his body, inflicting intense pain. He undergoes radiation and chemotherapy, which causes severe nausea and appetite loss. Numerous prescriptions prove ineffective or produce intolerable side effects. As a last-ditch effort, the man smokes marijuana and finds that it relieves his pain and stimulates his appetite. He begins cultivating marijuana at his home for medical use. Federal officers seize the marijuana and arrest him for drug possession. Although the state where the man lives allows the use of marijuana for medical purposes, the federal government considers it a felony. If convicted, he faces many years in prison and the loss of his rights to vote and possess a gun.
An American meets the love of her life while vacationing in Ireland. She returns to the United States and her new love follows her,obtaining a temporary work visa. When the work visa expires, the couple decides that they would like to marry, which would enable them to stay together in the United States. Unfortunately, they live in a state that has enacted a state constitutional amendment prohibiting same-sex marriage. If they are to remain together, they must leave the United States.
In situations such as these, which should trump: individual privacy or public morality? Should an individual be at liberty to act in a manner that does not harm others, even if doing so is offensive to many? May the public, acting through its elected representatives, enact laws restricting individual liberty, based solely on the majority's belief that the act is offensive or immoral? In this book, I will attempt to answer these questions.
Specifically, I will document and discuss the significance of two foundational principles embodied in the U.S. Constitution: limited government and residual individual sovereignty. I will explore how these twin foundational presumptions evince a morality of American law itself, a set of higher values by which to gauge the legitimacy of ordinary laws. Subordinate to the Constitution are ordinary laws, enacted by a legislative majority, that tell citizens what specific actions are punishable. These ordinary laws often reflect "public morality"-i.e., the passions, prejudices, and moral beliefs of a portion of the citizenry. But are they legitimate exercises of governmental power? Should we restrain our neighbor's liberty because she engages in an activity we consider icky, gross, or just plain wrong? This book will argue that the answer is no because public morality-based laws are immoral exercises of governmental power, inconsistent with the morality of American law.
Unfortunately, popular understanding of and appreciation for the morality of American law has vanished into thin air. There is a pervasive popular amnesia regarding the twin foundational constitutional principles of limited government and residual individual sovereignty. Indeed, modern constitutional jurisprudence turns the original constitutional structure on its head, placing the burden on citizens to convince the courts that laws restricting liberty are "irrational"-a heavy burden indeed-rather than requiring the government to articulate the need for restricting individual liberty.
Narrow judicial interpretation of several important liberty-protecting constitutional phrases combined with a steadily expanding interpretation of government powers has fundamentally altered the original Constitution sub silentio. Even the Supreme Court's acknowledgment in 1965 of a "right to privacy" is mischievously narrow, suggesting that citizens have a right only to engage in certain activities in private places. The so-called right to privacy is thereby confined behind closed doors, protecting only a small subset of individual liberty.
The American public has embraced the right to privacy as the source of its most precious liberties, yet most are unaware that employing the shibboleth "privacy" instead of "liberty" inherently narrows individual rights rather than expands them. I will therefore use the more apt word "liberty" to describe the right of individuals to act without illegitimate governmental restraint.
The slow, steady, and silent subversion of the Constitution has been a revolution that Americans appear to have slept through, unaware that the blessings of liberty bestowed upon them by the founding generation were being eroded. Over-burdened Americans with inadequate knowledge of constitutional history have been unable to gauge how far their governments have drifted from the original design. The result of the silent constitutional revolution is a labyrinth of laws regulating virtually every aspect of behavior, limiting what citizens can say, read, see, consume, and do.
One need only peruse the 36,000-plus pages of the United States Code, the corresponding 210-plus volumes of the Code of Federal Regulations, the over 75,000 pages of the Federal Register, and the innumerable pages of informal agency opinions and guidance documents to appreciate the magnitude of the problem and reach of the law. Federal laws, of course, are merely the tip of the legal iceberg. Hundreds of thousands of pages of state and local laws and regulations, the minutiae of which is mind-boggling, restrict individual liberty under pain of fine or imprisonment. There are current laws prohibiting the wearing of hats in public places such as theaters or courtrooms; catching fish with one's bare hands or from a bridge; carrying a slingshot; selling or possessing dyed baby chicks or rabbits; using "indecent" language on the phone or in a park; displaying a deformed animal; spitting on the sidewalk; teaching others about polygamy; having a garage sale for more than two days a year; fortune telling; keeping more than two cats in a yard; serving alcohol within one mile of a religious camp meeting; being drunk in your own house if it annoys others; or working, playing cards, or buying merchandise on Sunday.
In addition to the cornucopia of picayune laws, there are larger, more substantial intrusions on individual liberty. A shocking number of laws restrict basic personal decisions such as whom one may marry; whether, with whom, and in what manner one may have sex; whether and with whom one may cohabit; whether one may read or view sexually explicit materials; whether or when one may avoid or terminate pregnancy; what types of medical care and providers one may access; whether and under what circumstances one may refuse medical treatment; and whether, how, or to what extent one may become intoxicated.
As the breadth and complexity of law grows, individual liberty declines. The loss of liberty is a direct result of the uncontrolled power of the majority, acting through its legislative representatives. Legislators win or lose elections based on their perceived receptivity to the majority's desires, with the result that legislatures are in a constant state of activity, enacting, repealing, and refining laws.
The exponential growth of laws is an ineluctable by-product of disregarding the morality of American law. Growing legislative power and its inherent exercise in the name of majoritarian whims have slowly eroded the principles of limited government and residual individual sovereignty and created the very omnipotent government the founding generation spilled its blood to resist. The net result is that America has become a nation of too many laws, virtually unchecked by judicial oversight, with precious few pockets of individual liberty. Although the founding generation certainly envisioned that the United States would become a "nation of laws, not men," this laudable goal has been taken much too far. We have, unfortunately, become a nation of "laws, not liberty."
The amnesia regarding the morality of American law and the resulting growth of law itself has created an intractable conflict between public morality and individual privacy. This conflict is increasingly evident in litigation involving issues such as abortion, same-sex marriage, assisted suicide, and medical marijuana. Exit polling from the 2004 presidential election confirms the importance of the conflict in the minds of many Americans: voters reported "moral values" as the most important issue on their minds, surpassing the economy, terrorism, the war in Iraq, health care, taxes, and education.
Although it is difficult to discern exactly what these voters had in mind when they expressed concern about "moral values," it seems fair to say that they feel America is experiencing a general moral decline. The perceived attack on moral values is unrelenting and ubiquitous, emanating from music, video games, television, and movies that glorify violence, flaunt sexuality, and shun courtesy and respect for authority, as well as from a plethora of social changes that challenge traditional understandings of right and wrong. Many Americans feel powerless to protect themselves or their children from these socio-demographic changes or from the insidious influence of a pop culture run amok.
The tendency of human beings, when they feel their values are besieged, is to fight back using all of their available power-in America, influence with elected representatives-to prohibit the activities they deem morally objectionable. In this environment, judicial decisions in favor of individual liberty over public morality prove particularly controversial. They appear to add insult to injury, exacerbating the decline of moral values and providing legal sanctuary to activities many Americans consider distasteful and deeply offensive. Indeed, recent polls indicate that a large majority of Americans blame the current state of moral decline on the judiciary, agreeing with the statement, "Judicial activism ... seems to have reached a crisis. Judges routinely overrule the will of the people, invent new rights, and ignore traditional morality." In the present social and political environment, it is difficult for anyone-judge, scholar, or neighbor-to advocate for more, rather than less, liberty. In the passion of the moment, it is difficult to stop and consider whether, in the long run, the cure being proposed is worse than the disease. If the cure requires a modification or temporary suspension of constitutional values, so be it. The ends justify the means.
But even Americans who are deeply concerned about moral values should take a deep breath before demanding that government stamp out morally offensive activity. Americans routinely decry the perceived intolerance of other societies-radical segments of Islam, for example-yet they rarely stop to consider whether their own zeal to legislatively coerce moral values is the same ugly beast wrapped in an American flag. American history is replete with tragic examples of legislatively enforced intolerance fueled by majoritarian passion or frustration. Witch hunts, Jim Crow laws, Prohibition, Japanese internment, and McCarthyism were all driven by deeply felt fears about people and activities perceived as dangerous to the public's moral values. We must restrain the liberty of morally deficient individuals, the argument goes, in order to prevent their pestilence from spreading throughout society.
The current judicial response to public morality-based laws is to presume them constitutional. The American judiciary has erected a stilted and apologetic approach to judicial review, throwing its hands up and declaring that the United States is a representative democracy wherein the "majority rules." If the legislature enacts a public morality-based law and there is no specific constitutional language prohibiting such a law, the only remedy for those restrained by the law lies with the political process. Judges should not read too much, according to current orthodox theory, into constitutional language such as "due process," "privileges or immunities," or "[other] rights ... retained by the people" because doing so will allow judges to sit as a super-legislature over the people and invalidate democratically enacted laws by an inherently undemocratic, appointed-for-life judiciary. Citizens unhappy with public morality-based laws should complain to their elected representatives and lobby for legislative (or constitutional) change. If individuals want to be able to marry another individual of the same sex, smoke pot, purchase sex toys, or keep more than two cats, they should simply plead their case to their elected officials and hope for the best.
The problem with this logic is that it presupposes far too much about the proper scope of legislative power under American law. It assumes that legislative power is plenary in the absence of some specifically enumerated limitation to the contrary rather than assuming the opposite-in other words, that citizens retain all power (sovereignty) unless they have expressly and specifically ceded their power to the government.
Presuming plenary legislative power in the absence of a specific limitation to the contrary literally turns the constitutional structure on its head, dishonoring both twin foundational principles of limited government and residual individual sovereignty. The orthodox "majority rules" position is utterly incompatible with the morality of American law. As Friedrich Hayek once put it, "If it is to survive, democracy must recognize that it is not the fountainhead of justice and that it needs to acknowledge a conception of justice which does not necessarily manifest itself in the popular view on every particular issue." While the majority may indeed rule on many issues, there is a large sphere of residual individual sovereignty intentionally placed beyond its grasp.
In addition to these basic theoretical reasons for discarding current legal orthodoxy, there are pragmatic reasons to rethink it as well. A rigid reliance on the "majority rules" position exacerbates cultural tensions inherent in a heterogeneous society. Legislatively enacted preferences of the majority may appear heavy-handed, culturally insensitive, or motivated by prejudice, generating alienation between the affected minority and the majority. It should come as no surprise that over time, entrenchment of the majority rules philosophy has bred resentment against government. Americans from all walks of life, particularly racial and ethnic minorities and younger generations, feel disenfranchised and disengaged from their own government. As Professor Lani Guinier aptly observed, the consistent failure of representative democracy to grant an equal voice to members of a minority group makes them feel like perpetual losers in a game they can never win, creating a "lack [of] incentive to respect laws passed by the majority over their opposition."
Restoring the morality of American law would help strike the proper balance between public morality and individual privacy, which in turn would help reduce these societal ills. But restoring the morality of American law would require a sustained and conscious effort-a difficult task for a politically disengaged citizenry grown accustomed to monolithic government and voluminous liberty-disregarding laws. Yet this sort of sustained effort to return to the foundational American legal principles of individuality, equality, and liberty is precisely what is needed in a heterogeneous society.
Recognizing and restoring the morality of American law would reduce the open hostility between public morality and individual privacy, provide an objective analytical structure for resolving such conflicts, and create more consistent results across cases. This, in turn, would enhance the legitimacy of government itself. If America is not yet lost, it does appear to be wandering aimlessly, ignoring the principles designed to keep us on track. If this country is to find itself again, this book suggests that we will need to take out our Constitution, dust if off, and regain proper respect for the morality of American law that it reveals.
Excerpted from Liberty for All by Elizabeth Price Foley Copyright © 2006 by Elizabeth Price Foley. Excerpted by permission.
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