Sixth Circuit Justice Diane Wood, on President Obama’s short list for the Supreme Court, has drawn fire for supporting Justice Blackmun’s assertion in Roe v. Wade that abortion was among “a core set of individual rights exists that neither the states nor the federal government may trample.”
Taken by itself, this statement should be unobjectionable to anyone who believes in such a thing as “rights.” The real problem is that liberal judges have taken it upon themselves to decide which rights are worthy of constitutional protection.
Beginning in the progressive era, the left has articulated a double-standard of rights, one in which “property” rights are separated from and subordinated to “non-property” rights, often referred to as “personal” rights or “human” rights. Part of their argument for this distinction was that the founders themselves, or their nineteenth-century interpreters, made the same distinction, but put economic or property rights above human rights. Theodore Roosevelt, in his progressive phase, claimed that Abraham Lincoln “showed the proper sense of proportion in his relative estimates of capital and labor, of human rights and property rights,” by giving preference to personal rather than property rights.
But this is a fundamental distortion of the founders’ view. They never made any such distinction.
Rather, land, capital, money or other tangible economic rights were simply one facet of “property,” which included anything, tangible or intangible, to which one could claim ownership. This is the meaning of the Latin root of the word, proprius, a possessive pronoun meaning “mine.” When John Locke used the term “property,” he meant this—everything to which one had a right. When he spoke of land, capital, chattels, or money, he used the term “estates.” James Madison echoed this in a 1792 essay. “It embraces every thing to which a man may attach a value and have a right; and which leaves to everyone else the like advantage…. A man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”
It’s certainly true that the nineteenth-century Supreme Court, in the era of what is called “laissez-faire jurisprudence,” did protect economic rights, and did not develop a robust doctrine of non-economic rights. But it never separated them or made invidious distinctions between them, believing, as it did, that the right to property was “the guardian of every other right.” But the progressives were able to get the Supreme Court to abandon the protection of economic rights, while preserving judicial review for non-economic rights. It did so in a very famous footnote to a decision in which it upheld a congressional act prohibiting the interstate shipment of “filled milk” (an interesting story in itself—another place where the dairy lobby has left its mark on constitutional law).
The case was U.S. v. Carolene Products, and the Court noted, “The existence of facts supporting the legislative judgment is to be presumed,” in cases involving “ordinary commercial transactions.” In economic regulation, the Court would assume that legislation “rests upon some rational basis within the knowledge and experience of the legislators.” That is to say, the Court would accept any but the most wildly irrational basis for economic regulation. But “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth,” Justice Stone wrote. “It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. The note also suggested that the Court would scrutinize “statutes directed at particular religious, or national, or racial minorities,” and also be alert to “prejudice against discrete and insular minorities [which] may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”
Simply put, some rights, and some groups, were entitled to more constitutional protection than others. This doctrine became known as the “preferred freedoms” or “double standard” test. The Court has developed it largely by applying the Bill of Rights to the states. It has also lately admitted that it was applying the due process clause of the Fourteenth Amendment to the states—what is called “substantive due process,” and which was precisely what the progressives accused the Supreme Court of doing before the New Deal to protect economic rights. The difference with the new substantive due process, though, is that it is used for the right rights and the right groups, by the right judges.
If Justice Wood is nominated, she—or any other nominee—should be able to give an account of her standard of rights determination.