The Supreme Court’s text mess

As long as the muscle-flexing current Supreme Court majority purports to be bound by the constitutional language adopted in the first years of our Republic, honesty and consistency should compel them actually to look to that text.

Here is the Ninth Amendment (1791) in full: “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”

The justices may not like the Ninth Amendment, but it directly demonstrates how deeply rooted and explicit was the Framers’ intention to include rights not specifically mentioned.

Roe v. Wade identified such a right, but that decision hardly stood alone. Justice Samuel Alito’s leaked draft is disingenuous at best in its search for a particular word in the Constitution.

In Marbury v. Madison (1803), for instance, Chief Justice John Marshall and a unanimous Court established the Court’s power to declare government actions unconstitutional. This judicial review power cannot be found anywhere within the constitutional text. Indeed, the Marbury court also proclaimed — again without any textual anchor — that William Marbury had a vested individual right to his judicial commission.

Similarly, no constitutional text applies equal protection to the federal government. When the court unanimously held in Brown v. Board of Education (1954) that state public schools segregated by race were unconstitutional, the justices applied that holding to a companion federal case, Bolling v. Sharpe (1954). It was “unthinkable,” Chief Justice Earl Warren’s opinion held that this constitutional right might not apply to the District of Columbia schools. Perhaps Justice Alito would have to concede that the unanimous Bolling decision was not grounded in specific language in the Constitution.

Nor has creative judicial interpolation only been the bailiwick of liberal Justices. For example, the Eleventh Amendment’s text protected states from lawsuits brought “against one of the United States by citizens of another State, or by Citizens or Subjects of any Foreign State.” The Court simply ignored this textual limitation when it shielded railroads — and the towns that sold bonds to attract them — from suits brought by citizens of their home states. Indeed, state governments and state officials continue to enjoy a kind of defensive superpower shield; it is entirely judicial innovation that enables local police officers to defeat federal civil rights claims through the judge-made doctrine of “qualified immunity.”

In addition, there is growing judicial receptivity to claims by local property owners that state regulations “take” their property without compensation. Beginning in the 1890s, the court established a purported Fourteenth Amendment basis for such claims by invoking “natural equity.” This overcame a major textual problem: the early court had held that the Fifth Amendment’s textual protection applied only to federal takings, and not to those done by states. Nonetheless, after the Civil War, the Fourteenth Amendment omitted the Fifth Amendment “takings” language entirely as it otherwise directly quoted the rest of the Fifth Amendment’s due process language. The Court itself later plugged this textual hole through the vagaries of what it termed “due protection,” and this takings doctrine addition continues to expand.

With luck, Justice Alito may turn out to be writing a concurrence. As a matter of constitutional text and history, his draft surely is unworthy of a majority vote. Recent New York Times columns by Linda Greenhouse and Emily Bazelon underscore how completely Alito’s draft ignores the actual impact his decision would have on women’s lives. Yet it also bizarrely assumes that, because of progress since 1973, a woman’s right to choose an abortion somehow is no longer salient.

Unfortunately, Alito’s extremely selective brand of textualism makes it now seem realistic to fear that Loving v. Virginia (1967) — which struck down state laws against interracial marriage — could be on the chopping block; certainly it makes same-sex marriage seem shaky at best. In fact, one vainly searches the Constitution for words such as “marriage,” and “privacy.” Missing also are references to “contraception” or “parental authority.” Nor is there any mention of “campaign funding,” for that matter.

The current court’s blatant manipulation of its shadow docket indicates no principled limits regarding which precedents will fall away. But the Constitution’s structure and the longstanding recognition of implicit constitutional rights should matter much more than any narrow word search seeking a desired result. There is great wisdom in the idea that the past has a vote, but it does not have a veto.

Aviam Soifer served 17 years as dean of the William S. Richardson School of Law at the University of Hawai’i, after five years as dean of the Boston College Law School. He has been teaching and writing about constitutional law and legal history for over 40 years, often focusing on the post-Civil War period.