With the unprecedented leak of Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, the Court appears ready once again to abort Roe v. Wade. Underpinning Justice Alito’s draft opinion is a vision of the Constitution’s architecture of power: if it is not for the federal government to decide, it must be for the states—the Dual Sovereignty doctrine. A careful examination reveals the dilemma to be false, and reveals Dual Sovereignty to be little more than a partisan, ideological fabrication told and retold. An honest accounting of the history of the Tenth Amendment and its animating principle, Popular Sovereignty, reveals a path forward to securing for individual women the ability to decide whether to bear or beget a child: the Personal Question doctrine. The Personal Question doctrine is not particular to reproductive rights; rather it extends to decisions implicating individual sovereignty the Tenth Amendment reserves to the People.
Talk of sheltering woman from the fierce storms of life is the sheerest mockery, for they beat on her from every point of the compass, just as they do on man, and with more fatal results, for he has been trained to protect himself, to resist, to conquer. Such are the facts in human experience, the responsibilities of individual sovereignty. . . .
Whatever the theories may be of woman’s dependence on man, in the supreme moments of her life he cannot bear her burdens. Alone she goes to the gates of death to give life to every man that is born into the world. No one can share her fears, no one can mitigate her pangs; and if her sorrow is greater than she can bear, alone she passes beyond the gates into the vast unknown. . . .
We may have many friends, love, kindness, sympathy and charity to smooth our pathway in everyday life, but in the tragedies and triumphs of human experience each mortal stands alone.1
In her speech, Cady Stanton spoke in support of women’s suffrage about “self-sovereignty.” Denying a woman the right to vote, Stanton argued, denied her any role in the government of her own destiny, denied her all choice, and so all freedom. Stanton’s argument evokes the same argument Abraham Lincoln made against enslavement in Peoria, Illinois, in 1854:
When the white man governs himself that is self-government; but when he governs himself, and also governs another man, that is more than self-government—that is despotism. If the n[∗∗∗]o is a man, why then my ancient faith teaches me that “all men are created equal;” and that there can be no moral right in connection with one man's making a slave of another.2
Lincoln’s ancient faith was in the timeless principles that the Framers forged during the Revolution.3 Those principles’ central concern was to keep the Revolution from its own undoing, to keep dissonant factions from dissolving the Union, to establish a republic worthy of ascent to empire across a continent, without setting into motion its descent into tyranny.4
The Framers’ challenge was to scale their single political understanding across dispersed space. The Framers met that challenge by setting faction against faction, government against government, locked in a perpetual struggle, a static serenity.5 Equipoise promised individual freedom, but depended on an antecedent proposition from which the Framers’ precepts flow: the wellspring of ultimate power resides in the People, diffused among representative governments—Popular Sovereignty.6 That power joins us in a dialogue across time with the Framers of the Constitution. It declares that in light of our lived experience, to realize the Constitution’s original principles, the Constitution itself must change.7 The Framers’ generation enshrined that proposition in the Bill of Rights’ Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”8
Or to the people.
Sovereign power is obvious in moments so vast—Revolution, Reconstruction, World War—they bend a whole nation’s arc away from imperfect jurisprudence towards unalloyed justice. Sovereign power is less obvious in moments unknown and unrecorded. These are intimate moments which beg grave personal questions, whose answers constitute the threads of our moral identities, and whose answers’ crushing burdens we each carry alone.
Consider the decision whether to bear or beget a child. A question fraught as it is estranging. A decision schismatic as war and seminal as revolution. Were it answered for you, you would be denied self-government at the moment it would matter most. The Tenth Amendment allocates to individuals the power to decide the question. Yet the prerogative to answer does not belong to the individual who bears the child. State legislatures all but decide.9
This article proposes a concept, the Personal Question Doctrine, to remand the decision of whether to bear or beget a child to whom it rightly belongs: the individual. The Personal Question Doctrine extends the Framers’ experiment of distilling unity from faction, harmony from discord, to moments where politics and law fail to guarantee a woman’s ability to stand in relation to men and to society as equal.10
Arriving at that long forestalled conclusion requires exposition of how individuals became alienated from reserved, sovereign power.11 This article traces ideas’ threads across time to show how, despite each successive generation of Supreme Court Justices’ efforts at bending the Constitution to ideology, the impulses that animate our most hallowed precepts—Popular Sovereignty, Liberty, Equality, and Dignity—that sparked the Revolution and course still through our Constitution’s text persevere.
Part I traces how Popular Sovereignty began as a creation myth and was reinvented into an altogether new species of institutional sovereignty. Part II then describes the Supreme Court’s abandonment of Popular Sovereignty and turn to Due Process to protect individual freedoms. Part III recounts the rise of Human Dignity from the ashes of World War. Part IV invites the reader to examine that history in a new light. Part V offers a preliminary sketch of the Personal Question Doctrine, its meaning, and its contours. Tempting though it is to look past familiar history, careful observation of generations of Justices’ tinkering reveals the grand designs long at work upon these precepts. Tracing these threads, our nation’s intellectual sinews, reveals their beauty, complexity, and potential to remand Personal Questions to the People, and at long last to make real the idea of the Constitution.
To Americans, the British mistook the majesty of the monarchy for the rationality of popular governance. Instead, Americans thought of Popular Sovereignty differently, rejecting the linkage of social rank with political power.17 James Wilson, one of six individuals who signed both the Declaration of Independence and the Constitution, and a preeminent Founding-era American legal theorist, likened British notions of Popular Sovereignty to legends about the source of the Nile River. The Nile’s majesty was everyone’s to behold, yet its origin eluded even the greatest of monarchs. So enduring was its mystery that with each retelling, it thickened with fantasy. In time, humanity discovered the River’s true source: “a collection of springs small, indeed, but pure.”18 Stripped of its veil of fantasy, Wilson taught, the true wonder of Popular Sovereignty becomes plain: “. . . the streams of power running in different directions, in different dimensions, and at different heights watering, adorning, and fertilizing the fields and meadows . . . originally flow from one abundant fountain. In this [C]onstitution, all authority is derived from THE PEOPLE.”19
Enlivening that American myth required destroying its British precursor. As the origin of power, the British Crown intertwined human and institution as sovereign. In relocating that origin, Americans disentangled human from institution, breeding an altogether new species of governmental sovereignty. Americans crafted their founding political papers in the image of British colonial charters, licenses to form and operate business corporations under the British crown (e.g., the Massachusetts Bay Company Charter).20 Americans’ analogy of corporate charter to political compact giving society organization based on consent suggests this new species’ key characteristic: that it is sovereign on certain terms. It can be bound, checked, divided, and diffused.21 It is sovereign only in a derivative sense and within bounds. Outside them, true and natural sovereignty, indivisible and ultimate, resided in the People.
To make myth reality, Americans invented a ritual: the People assembled in conventions to consent to delegating sovereignty on certain terms, to ratify the Constitution. Virtual embodiments of the People, conventions wield sovereignty’s full measure of power.22 The question a convention answers is about the first of first principles: whether to “alter or abolish” a form of government.23 The question marks simultaneous rupture and continuity: the Constitution not only guides conventions’ procedure, it also submits to those conventions’ decisions. Legislatures craft positive law, law for everyday life. Conventions craft ultimate law, law against which all positive law is measured. The convention ritual embodies James Wilson’s idea of power’s origin. Constitutions control legislatures. The People control constitutions.24
At the threshold of being, Americans conceived of Popular Sovereignty as a creation myth, made real by ritual, that explained the extraordinary decision to constitute thirteen separate polities and their populations as single People. Once that liminal moment had passed, so too did Americans’ early understanding of Popular Sovereignty.
Chisholm was a struggle over the Constitution that began as a squabble over a contract. In 1777, a merchant in South Carolina, Robert Farquhar, sold goods to the state of Georgia during the Revolutionary War. Georgia failed to pay the merchant before he died, and so the merchant’s executor, Alexander Chisholm, sued in a federal trial court. The executor invoked the court’s diversity jurisdiction in support of his claim in assumpsit, a type of breach of contract claim. Georgia defended that states are immune from suit in any court. Justice Iredell dismissed the executor’s claim. Chisholm again filed suit, this time in the Supreme Court. Georgia refused to appear. The Court rejected Georgia’s defense, that its status as sovereign gave it immunity, and thereby established the federal judiciary’s power under Article III of the Constitution to hear controversies between states and citizens of other states.26
Chisholm was about far more than just a contract. In 1783, the Washington Administration sought to enforce a peace treaty with Great Britain.27 The treaty assured British creditors of their power to collect debts that predated the Revolution.28 In defiance of Britsh creditors and federal efforts, however, states enacted laws expropriating British debts to support their local currencies.29 If states could not be compelled to appear in federal court, British creditors would have to seek relief in hostile state courts.30 To reach the question of Georgia’s immunity defense, the Court had to decide the question of sovereignty, and signal to the world that this new federal government could conduct its affairs.31 Distinguishing American and British sovereignty, Chief Justice Jay, wrote in Chisholm:
In Europe the sovereignty is generally ascribed to the Prince; here it rests with the people; there, the sovereign actually administers the Government; here, never in a single instance; our Governors are the agents of the people, and at most stand in the same relation to their sovereign, in which regents of Europe stand to their sovereigns.32
The People may occupy neither the legislator’s seat nor the judge’s bench. Still, the People are sovereign. Among the “great objects” which a national government is designed to pursue, he wrote, is to:
[E]nsure justice to all: To the few against the many, as well as to the many against the few. It would be strange . . . that the joint and equal sovereigns of this country, should, in the very Constitution by which they professed to establish justice, so far deviate from the plain path of equality and impartiality.33
Assailing Georgia’s defense, a governmental sovereign’s attempt to don a cloak of immunity from suit by a natural sovereign, Chief Justice Jay expounded his conception of the Federalist Constitution’s Popular Sovereignty:
[T]he Constitution places all citizens on an equal footing, and enable[d] each and every of them to obtain justice without any danger of being overborne by the weight and number of their opponents; and, because it brings into action and enforces this great and glorious principle, that the people are the sovereign of this country, and consequently that fellow citizens and joint sovereigns cannot be degraded . . .34
Chisholm was the first time the Supreme Court interpreted the text of the Constitution—yet Chisholm is not a case most law students read, much less for its Tenth Amendment holding.35 Perhaps because history subsumed Chisholm’s examination of Popular Sovereignty, a quintessential Tenth Amendment undertaking, into another Amendment’s story. In 1795, the states ratified the Eleventh Amendment, repudiating Chisholm.36 Recognizing the financial and political toll the Court’s assertion of supremacy would exact on them, states rebelled at Chisholm. Within days of the decision’s announcement, state legislatures resolved to amend the federal Constitution to undo Chisholm; Georgia’s House of Representatives passed legislation rendering any judgment upon itself on behalf of Alexander Chisholm a felony punishable by “death, without the benefit of the clergy, by being hanged.”37 By 1890, the Court’s own account of this history in Hans v. Louisiana took Chisholm’s, all of Chisholm’s, undoing as gospel.38 The Eleventh Amendment overruled Chisholm.
Or so the story goes.
Sixteen years after Chisholm, the Supreme Court put Popular Sovereignty to a new use in McCulloch v. Maryland.39 In 1816, Congress chartered the Second Bank of the United States.40 In an attempt to raise revenue and wrangle federal authority, the state of Maryland taxed the Bank—a tax the Bank’s Baltimore Cashier, James McCulloch, refused to pay.41 Chief Justice Marshall concluded that the Constitution, without saying so, empowered the federal government to charter a bank, and forbade states from taxing the federal government or its instrumentalities, that is, the Bank. Law students remember the case in short-hand to mean that federal power is expansive, that the Constitution gives Congress both enumerated and implied powers. This heuristic is ironic: Chief Justice Marshall relied on the Tenth Amendment as a curb on federal power, but whose distinction between the states and the People nevertheless compelled the conclusion that a state cannot tax the federal government.42
Under British imperial rule, all power had been consolidated in the Crown—this proved intolerable. Under the Articles of Confederation, little, if any power was consolidated in the national government—this proved unworkable. Chief Justice Marshall staked out a middleground in McCulloch: our Constitution employs Popular Sovereignty to ballast relationships among sovereign entities.43
The Court has likewise invoked Popular Sovereignty to ballast relationships among sovereign entities’ organs. In Luther v. Borden, rival factions each claimed legitimate, democratic control of Rhode Island under Article IV, Section 4 of the Constitution, which requires that each states’ government be a “republican form.”44 The Constitution’s guarantee of a republican government, the Court held, cannot be enforced by the Court: the Court’s “power begins after [the People’s] ends.”45 Instead, that guarantee is political, and can only be enforced by a state’s voters or the federal government’s political branches, Congress or the President. “[I]f the people, in their distribution of powers under the constitution, should ever think of making judges supreme arbiters in political controversies . . . they will dethrone themselves . . . .”46
Although Chisholm and McCulloch appeared to portend the enduring dynamism of Popular Sovereignty, Luther’s conclusion of a hollow power that can be enforced only by fiat of politics, rather than by force of law, suggests what was to come for Popular Sovereignty, failure and desuetude.
By the close of the Civil War, the Court had recognized the Tenth Amendment as Popular Sovereignty’s home in the text of the Constitution. In Gordon v. United States, Justice Taney wrote that the Tenth Amendment and its principle of Popular Sovereignty prevented the federal government from encroaching on powers of the states or of the People that predated the Constitution.47 In his view, the federal judiciary’s role was to use the Tenth Amendment to protect the states and the People from the federal government.48 Justice Taney’s view aligned with his effort to stymie President Lincoln’s prosecution of the Union’s war effort by emergency measure, and with his gravely misconceived attempt to preserve the Union by siding with enslavers from the bench. In Scott v. Sanford, otherwise known as Dred Scott, Justice Taney wrote that the Missouri Compromise, a last-ditch effort at holding the line against sectional rupture by granting freedom to enslaved persons in federal territory, violated the Constitution; it deprived enslavers of “property” and therefore of Due Process under the Fifth Amendment.49 Justice Taney’s conclusion was abominable, but was supported by precedent. Recall in Chisholm, Chief Justice Jay wrote that the Revolution “devolved [sovereignty] on the people . . . but they are sovereigns without subjects (unless the [enslaved] African[s] . . . among us may be so called) and have none to govern but themselves . . . .”50 To reach his Due Process conclusion, Justice Taney had first to establish that Black people were property. He reasoned that the Constitutions’ Framers thought so little of enslaved Africans that a product of their handiwork, the Constitution, could afford such people no legal rights.51 Justice Taney’s grotesque logic degraded Black people to mere objects, depriving them of not only of citizenship, but of humanness, damning a freed person to servitude.52
Perhaps it was Justice Taney’s handiwork that rendered Popular Sovereignty and the Tenth Amendment ready tools for states’ rights theorists, and advocates of the Confederacy and its heir, Jim Crow. Perhaps, too, it was the taint of Justice Taney’s linkage of Popular Sovereignty with the Tenth Amendment that fated them both to modern scholarship’s suspicion and scorn.53
In United States ex. Rel. Turner v. Williams, the Court upheld the federal government’s decision to deport the anarchist because a governmental sovereign is entitled to a power of self-preservation.54 Concurring in Williams, Justice Brewer lamented that the Court gave the Tenth Amendment and Popular Sovereignty “too little effect.”55 Justice Brewer critiqued the Court’s decision to empower a governmental sovereign to the detriment of the People’s ability to alter or abolish government—the original constitutive choice.56 In United States v. Sprague, Justice Roberts foreclosed any other path to the People exercising sovereign power than Article V of the Constitution’s process for amendment, that is, a vote of a state’s legislature.57 For expression, Popular Sovereignty depended on government.
Stripped of its role of protecting individuals, the Tenth Amendment entered the twentieth century consigned to desuetude as a sometimes enforceable principle that could mediate relationships between governments. In 1918, Congress passed a law protecting birds that migrate across state lines from hunters to enforce a treaty entered into with Great Britain. The state of Missouri challenged U.S. Game Warden Ray Holland’s enforcement of the law and the underlying treaty, arguing that the federal government had acted beyond the scope of its power, in that the Tenth Amendment reserved the power to regulate migratory bird hunting to the states. In Missouri v. Holland, Justice Holmes applied the Tenth Amendment as a tool of mediating competition between two sovereigns: the federal and state governments.58 Beyond demonstrating the Court’s narrowed understanding of Popular Sovereignty as exclusively a structural principle, Justice Holmes described the extent of each sovereign entity’s power as determined by the object of its authority.59 The individual fell from analysis. Once the Tenth Amendment had failed to achieve Chief Justice Jay’s noble objects of ensuring justice to all and protecting individual rights, the Court turned instead to Liberty under the Fourteenth Amendment.60 Sovereignty belonging to contrived institutions became the only sovereignty.
As the United States passed from callow, continental republic to budding global power, Congress matured into a more vigorous regulator of American life.61 For some time, Justices appointed by conservative-leaning presidents from Harding to Hoover resisted the administrative state’s growth, citing to the Tenth Amendment.62 Resistance proved futile. As the Court’s composition changed toward the middle of the twentieth century, the Court empowered Congress by wresting Popular Sovereignty, reducing the Tenth Amendment to a mere “truism,” consigning them both to desuetude.63
As part of its late twentieth century conservative revival, Popular Sovereignty reprised its role as mediator among sovereigns. Only this time, the Court created a series of Tenth Amendment doctrines—Dual Sovereignty, anti-commandeering, Sovereign Immunity, and Equal Sovereignty—whose purpose was to define the characteristics of a governmental sovereign, and whose effect was to devolve power away from the federal government to the states.70
In 1974, Congress amended the Fair Labor Standards Act of 1938 to apply its wage and hour regulations to state and local government employees.71 State and local governments challenged the 1974 amendment as federal overreach. Two years later, the Supreme Court in National League of Cities v. Usery struck down that amendment, concluding that the Tenth Amendment reserved control over wage and hour rules to the states.72 Thus began the conservative jurisprudential revival.
Writing in dissent in National League of Cities, Justice Brennan assailed the Court’s majority for snubbing the Tenth Amendment’s distinction between the People and the states.73 Wage and hour regulation belonged to the province of Article I of the Constitution’s Commerce Clause, and so could not be reserved to the states, he argued. Justice Brennan acknowledged that the Tenth Amendment distinguishes among three sovereign entities. Yet he argued that Congress exercising its commerce power under Article I is virtually the same as the People exercising sovereign authority. Justice Brennan’s understanding of Popular Sovereignty elides the United States and the People.
Nine years later, Justice Brennan was in the majority as Popular Sovereignty’s pendulum swung leftward. The San Antonio Metropolitan Transit Authority (SAMTA) claimed public transportation was a “traditional governmental function,” and so it was exempt from the Fair Labor Standard Act’s wage and hour rules under Court precedent. Joe Garcia, a SAMTA employee filed suit for overtime pay guaranteed by the Fair Labor Standard Act. In Garcia v. San Antonio Metro Transit Authority, a liberal majority overturned National League of Cities, holding states’ sovereignty was guarded by the federal structure, rather than by any discrete limitation set out in any particular text of the Constitution, and that federal structure consisted of two sovereigns, only.74
Writing in dissent in San Antonio Metro Transit Authority, Justice Powell rebuked the Court for paying lipservice to states’ Sovereignty and treating the Tenth Amendment as if it were rhetorical froth rather than mandatory law.75 To reinforce his point that the majority’s conclusion marked a departure from the Constitution’s text, Justice Powell cites a version of the Tenth Amendment: “That Amendment states explicitly that ‘[t]he powers not delegated to the United States . . . are reserved to the States.’”76 In decrying his opposition’s infidelity to the Constitution’s text, Justice Powell inexplicably cites a version of the Tenth Amendment that omits “the People” entirely—a bewildering omission. While Justice Brennan elided the United States and the People in National League of Cities, Justice Powell elided the states and the People in Garcia v. San Antonio Metro Transit Authority.77
In 1986, just over a decade after President Nixon appointed William Rehnquist to the bench, President Reagan elevated Associate Justice Rehnquist to Chief Justice. Justice Rehnquist’s promotion was part and parcel with Popular Sovereignty’s revival. Popular Sovereignty had entered the twentieth century consigned to desuetude, Dual Sovereignty exited that century as a “defining feature of our Nation's constitutional blueprint.”78 For almost forty years, the federal government’s political branches assumed there was no right in the Constitution that limited federal power.79 Popular Sovereignty’s revival upended that assumption. Though the revival originated with conservative jurists, liberals, too, joined in. Popular Sovereignty transformed into Dual Sovereignty.80
In 1981, John Hinckley Jr. attempted to shoot and kill President Ronald Reagan.82 Of six shots Hinckley fired before Secret Service agents subdued him, the first struck an assistant to President Reagan, James Brady. In 1993, Congress passed the Brady Handgun Violence Prevention Act, establishing federal background checks for gun buyers.83 The Brady law contained an interim measure: it required local law enforcement to conduct background checks on prospective handgun buyers until the federal government established its own system of background checks. Jay Printz, a sheriff in Ravalli County, Montana, sued the federal government, arguing that the Brady law’s interim measure violated the Tenth Amendment’s anti-commandeering doctrine. In Printz v. United States, the Court struck the interim measure down.84 Writing for the Court’s majority, Justice Scalia reasoned from the Constitution’s creation of two sovereigns, Dual Sovereignty, that neither a state nor its employees can be commandeered in service of a federal mandate. States could not be a proper “object” of federal authority.85
In time, the anti-commandeering doctrine morphed from a bar against compulsion to an affirmation of states’ decisionmaking authority. In 2011, the New Jersey legislature posed a question to voters: should New Jersey allow sports gambling? Yes, the voters said. Shortly thereafter, the New Jersey legislature passed an amendment to its state constitution and passed a law realizing the voters’ will. The problem: in 1992, Congress passed the Professional and Amateur Sports Protection Act, which prohibited states from allowing sports gambling. Against a challenge brought by sports leagues, New Jersey defended that PASPA violated the anti-commandeering doctrine.86 In Murphy v. National Collegiate Athletics Association, the Supreme Court held that Congress prohibiting states from authorizing sports gambling violated the anti-commandeering doctrine. Writing for the Court’s majority, Justice Alito framed his analysis with Dual Sovereignty.87 The choice of whether to authorize sports gambling was a choice of policy—a controversial and moral choice, which Justice Alito concluded, “is not ours to make.”88
Within a universe whose parameters Dual Sovereignty dictates, the anti-commandeering doctrine enforces those parameters, preventing sovereign entities’ overreach into others’ domains, ensuring proper allocation of decisionmaking authority.
Sovereign Immunity was not a new idea in the 1970s. In Chisholm, the Court established its own jurisdiction to hear a citizen of one state’s claim against another state. The Court’s conclusion in Chisholm implies that a citizen is empowered to bring such an action in a federal court. The Eleventh Amendment was ratified soon after. In 1890, the Court in Hans v. Louisiana instructed that, despite its literal wording doing nothing of the sort, the Eleventh Amendment restored to states the principal trapping of Sovereignty they had enjoyed at common law before the Constitution entered the picture: immunity.90 The Hans Court failed to specify whether the Eleventh Amendment restored immunity to states from all suits, or just from some suits with certain procedural postures or party configurations. That ambiguity aside, Hans was a bewildering departure from the “plain path of equality and impartiality” the Court set out in Chisholm, which subordinated contrived to natural sovereigns.91
In law, for every right there must be a remedy. In 1908, Minnesota enacted a law regulating railroad rates; a federal court struck down Minnesota’s law for violating Northern Pacific Railways shareholders’ Fourteenth Amendment Due Process rights. The court’s remedy was an injunction prohibiting Minnesota’s Attorney General, Edward Young, from enforcing the law. The problem: Young represented the state, and so Young should have enjoyed immunity as a sovereign’s agent. If Young were indeed immune, how could federal law be supreme, as the Constitution’s Supremacy Clause requires? A federal right would be without a remedy. In Ex Parte Young,92 the Court reasoned that Young acted beyond the state’s authority in enforcing a state law in violation of the Constitution, thereby shedding immunity.
The Hans Court portrayed immunity as part of a state’s sovereignty, but left tremendous ambiguity in its wake. The Young Court relied on interpretative fiat to characterize a private act as a public one, a legal fiction that carries a “distinct air of unreality.”93 Chief Justice Rehnquist saw his opening.
In 1988, Congress passed the Indian Gaming Regulatory Act (IGRA) to regulate gaming on Native American land—bingo, in particular.94 IGRA granted tribes the right to regulate gaming on their lands so long as gaming was not prohibited by federal or state law. Tribes could conduct games on their lands, but only if a state consented; IGRA also required states to negotiate in good faith with tribes. Finally, IGRA granted tribes a statutory right to sue a state in federal court if a state failed to negotiate.95 The Seminole Tribe of Florida alleged that they had asked their state to negotiate to allow gaming activities, but Florida refused.96 The Seminole Tribe sued Florida for violating IGRA. Florida raised a Sovereign Immunity defense. In Seminole Tribe v. Florida, the Court decided that although the Eleventh Amendment appears to restrict only a certain category of suits against states, the Eleventh Amendment does not mean what it says.97 Instead, Sovereignty inheres in statehood, immunity inheres in Sovereignty, and therefore without their consent, states cannot be sued in federal court.98
The Seminole Tribe also sought an injunction against Florida’s governor to force negotiations. The Court rejected this plea for relief, too, because the list of remedies set out in IGRA did not include injunctions. This outcome was not foreordained. The Rehnquist Court could have presumed the opposite, that injunctions’ absence from IGRA’s list of remedies meant Congress did not exclude injunctions.99 Instead, the Court withheld relief. The Court in Seminole Tribe defied stare decisis, demonstrating the length the Court under Justice Rehnquist’s leadership was willing to go to shift the balance of power between dual sovereigns.
A few years later, the questions Seminole Tribe had posed to the Court reappeared in its docket.100 In 1992, a group of probation officers sued their employer, the state of Maine, in federal court for violations of the Fair Labor Standards Act’s wage and hour rules.101 After the Court decided Seminole Tribe, a federal trial court dismissed the probation officers’ suit because, under Seminole Tribe, states are immune from suit in federal court, and Congress could not pierce that immunity. The probation officers then took their lawsuit to state court, where Maine claimed immunity. The problem: the Eleventh Amendment does not extend its immunity to sovereigns in state courts.102
In Seminole Tribe, the Court tinkered with the relationship between sovereigns, a quintessential Tenth Amendment undertaking, but had confined its reasoning to the Eleventh Amendment. In Alden v. Maine, Justice Kennedy invoked the Tenth Amendment explicitly:
The phrase [Eleventh Amendment immunity] is…something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . Any doubt regarding the constitutional role of the States as sovereign entities is removed by the Tenth Amendment . . .103
In Alden, the Court held that Congress cannot strip a state of Sovereign Immunity in its own courts.104 Otherwise, Congress would not only violate the anti-commandeering doctrine,105 but would also demean that state and deny that state its rightful Dignity: “[O]ur federalism requires that Congress treats the States in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation.”106 Empowering citizen suits against a state in state court might open the door to that court controlling that state’s performance of its political duties, interfering with its autonomy.107 Despite their constitutional privilege, states remain bound by the Constitution and valid federal law; against their abuse of unaccountability, Justice Kennedy relies on the “good faith of the States.”108
Anti-commandeering guarantees states’ inviolability from federal compulsion. Sovereign Immunity makes the same guarantee from a particular form of compulsion, judicial retribution. Although each Doctrine approaches things from a different angle, both respond to the same injury to the states at the hands of the federal government: violation of states’ Dignity.109
On March 7, 1965, police, some masked, some on horseback, discharged tear gas as they advanced toward a crowd. One hundred years after Confederate General Robert E. Lee and his Army of Northern Virginia surrendered to Union General Ulysses S. Grant at the Appomattox Courthouse, hundreds made their way from Selma to Montgomery, Alabama, in support of civil rights. At the Edmund Pettus Bridge, itself named for a Confederate general, a seering miasma engulfed the crowd, its scald punctuated by an unrelenting torrent of wooden bludgeons swaddled with metal barbs.111 Days later, President Lyndon B. Johnson implored a joint session of Congress to act in obedience to its members’ oath before God and Constitution. By August 1965, Congress passed and President Johnson signed the Voting Rights Act (VRA), whose foundation in the text of the Constitution was the Fifteenth Amendment, the last of three amendments adopted after the Civil War during Reconstruction.
The VRA contained a provision, called the preclearance provision,112 that required certain jurisdictions to obtain approval from a panel of federal judges or the Attorney General before changing any voting laws.113 As passed originally in 1965, the preclearance provision’s “coverage formula” applied its approval process only to jurisdictions that had had a test or device to restrict voting, and less than ffity percent voter registration or turnout in the 1964 presidential election.114 Congress reauthorized the VRA in 1970 and 1975, 1982 and 2006, but along the way expanded its original coverage formula to include jurisdictions with restrictive voting practices and low turnout in the 1968 or 1972 elections.115
In 2010, Shelby County, Alabama, challenged the VRA’s coverage formula. In Shelby County v. Holder, the Supreme Court invalidated the VRA’s coverage formula, ostensibly because it was out of step with current events.116 Writing for the Court, Chief Justice Roberts concluded that by 2013, the facts no longer justified the VRA’s constraints on states. This “stale facts” explanation of Shelby County is plausible but incomplete.117
Equal Sovereignty offers a better explanation. Recall the VRA’s foundation in the Constitution’s text is the Fifteenth Amendment, the final of three Reconstruction Amendments.118 These amendments endowed Congress with immense, penetrating lawmaking power,119 power Congress deemed necessary to quash lingering southern defiance too bald-faced to call subversion.120 The promise of these pronouncements never came to pass; instead, they heralded retreat.121 An 1863 essay called Reconstruction of The Union illumines the reason; its Iowan writer beseeched his fellow northerners “to consider and respect the South as an equal.”122 For states’ Dignity sake, Reconstruction met a premature end so that Americans could avoid the daunting task of ascribing fault for the Civil War.123
Chief Justice Roberts’ Shelby County decision reflected these same concerns about preserving states’ Dignity, the same that animate both the anti-commandeering and Sovereign Immunity doctrines. Laws passed by Congress to enforce the Reconstruction Amendments are problematic from the standpoint of states’ Dignity because they suggest violations not just of everyday law, but violations of elementary or “fundamental”124 morality the Reconstruction Amendments were meant to guarantee.125
Before Shelby County, Equal Sovereignty had limited Congress’ power to impose conditions on territories seeking admission as states into the federal Union, guaranteeing states would be admitted on similar terms.126 That limit had traditionally applied at the moment of admission, neither before, nor after.127 Congress admitted Alabama into the Union in 1819; the Court decided Shelby County in 2013. Chief Justice Roberts expanded Equal Sovereignty in time to apply well after admission.128 Although it is commonplace for federal law to distinguish among states,129 the Chief Justice describes the VRA’s doing so as “extraordinary.”130 Extraordinary, perhaps, in that the VRA sought to do more than regulate states’ commonplace acts. Fundamental in that the VRA sought to curtail states’ power to decide moral questions by branding them deplorable, affixing to them badges and incidents of wayward crookedness unbefitting a sovereign.
From states’ Sovereignty flows their Dignity, from there flows states’ presumptive benevolence, the doctrine of Equal Sovereignty. As Popular Sovereignty’s manifold incarnations suggest, the principles underlying our Constitution are protean. Conservative jurisprudence in the late century changed things, solidifying Dual Sovereignty’s dominance, recasting Popular Sovereignty as governmental, and expounding a series of doctrines to stem any countervailing tide. The significance of these changes should not be understated, nor should it be overstated. These changes fit into dialectic pattern of controversy and decision that extends back to the very genesis of judicial review.
Enslavement and the toll in blood of breaking its grip on the country demonstrated the uselessness of Sovereignty under the Tenth Amendment as a guarantor of individual rights. The Privileges or Immunities Clause of the Fourteenth Amendment, the lesser known companion of the Due Process and Equal Protection Clauses, also proved unequal to the task.135 The Fourteenth Amendment’s purpose was to change things, to transform America, to set forth principles about the rights of freed peoples and to guarantee the extension of those principles to all citizens.136 Despite the Amendment’s clear mandate, the Court bowed to the rearward tide. Popular Sovereignty was consigned to mediate the relationship between governmental entities. This section will recount how, to mediate the relationship between government and individuals in areas as intimate as reproductive choice and whom we marry, to secure individual rights, rather than to the Tenth Amendment, or to the Privileges or Immunities Clause, Courts turned instead to Liberty137 and Equality138 under the Due Process Clause of the Fourteenth Amendment.
Due Process is not as limited as its name might suggest. Process is only the half of it.139 The Court’s exposition of Due Process’s substantive meaning began with those rights that the country’s Founding generation had included in the Bill of Rights. Through the Fourteenth Amendment’s Due Process Clause, the Court extended the first eight amendments’ substantive rights, originally formulated to apply only against the federal government, to apply against state governments, too.140 Their enumeration in the Bill of Rights’ text rendered these rights an obvious starting point. These rights’ enumeration suggested their rootedness in the “traditions and conscience of our people as to be ranked as fundamental.”141 Surely the first eight amendments are not an exhaustive list of rights the Constitution ought to protect. The Ninth Amendment makes clear there are other, unenumerated rights. With no other right has Court’s, indeed the country’s, struggle over choosing between orthodoxy and heresy proved more fraught with acrimony, than the question of reproductive autonomy.
Buck v. Bell was an inauspicious and ugly beginning. As the following sections show, subsequent Courts were more willing to extend protections for reproductive autonomy—just not always to women. The Court recognized a right attaching to intimate personal relationships before it recognized one attaching to individual women. Although the Court did in time enunciate a right capturing reproductive autonomy assigned to individual women, as set out below, the right proved ill-concieved. The right is less secure as of my writing this article than ever before.
Griswold established a right, but only for individuals in a marriage. Griswold’s right to prevent procreation within marriage emanates from the bond, rather than from the individual bound, obscured by its penumbra.149 Griswold did not protect or enunciate an individual right. For Justice Douglas, the Bill of Rights guarantees a fundamental right to prevent procreation within marriage because, if it were otherwise, the Court would sanction police searching peoples’ bedrooms for condom wrappers—a scenario “repulsive to the notions of privacy surrounding the marriage relationship.”150
Shortly thereafter, the Court revisited the privacy right to prevent procreation, attaching it to individual women. In 1967, Bill Baird, a reproductive rights activist prearranged a violation of a Massachusetts law under which only registered doctors, nurses, and pharmacists could provide contraceptives, and only married individuals could obtain contraceptives.151 After speaking at Boston University to students about birth control, Baird handed a young woman a vaginal foam contraceptive, and was arrested and prosecuted by Thomas Eisenstadt, the Sheriff of Suffolk County, Massachussetts. In Eisenstadt v. Baird, the Court struck down Massachusetts’ law, and recognized an individual’s privacy right to purchase and to use contraceptives.152 For the Court’s plurality, Justice Brennan wrote: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”153 Eisenstadt spoke of the privacy right to obtain and use contraceptives as an individual’s right, but still the Court framed the decision as one protecting not individual persons, just intimate personal relationships.154
Like Justice Douglas had in Griswold, Justice Blackmun conceived of the decision whether to abort as belonging to the right of privacy. Unlike Justice Douglas in Griswold, Justice Blackmun avoided discovering the right in shadows cast by distinct bits of text; Justice Blackmun instead founded the right on the Fourteenth Amendment’s Due Process Clause’s ward, Liberty.159
The Fourteenth Amendment’s Due Process Clause protects only persons. A fetus, Justice Blackmun wrote, is not a “person” within the meaning of the Fourteenth Amendment.160 That proposition was not radical in 1973—it aligned with precedent.161 That plank of Justice Blackmun’s logic did not mean the right to abort was absolute; against a woman’s Liberty to choose balanced the state’s interest in protecting, among other things, “prenatal life.”162 A fetus inside the womb might not be a person, but certainly a baby outside the womb is. Competing interests beg the question: Where, in time or fact, does the balance tip away from Liberty in regulation’s direction? Justice Blackmun answered that the tipping point was “viability,” that is, once a fetus has the “capability of meaningful life outside the mother’s womb.”163 A hallmark of Justice Blackmun’s Roe decision was his trimester framework for pegging the point of viability in time. During the first trimester, government could not prohibit abortions outright, and could regulate abortions no more than it could any other procedure.164 During the second trimester, the government still could not prohibit abortions outright, but could regulate it in ways “reasonably related to maternal health.”165 In the final trimester, government could regulate or prohibit abortion, except as necessary for the mother’s health or life.166
Roe was a momentous victory for procreative freedom in America: a single judicial opinion invalidated highly restrictive abortion laws in all but four states.167 As this article’s existence attests, Roe’s victory was far from total. Some critics of Roe, including Justice Ginsburg, contend Roe went too far too fast; others think that Roe did more to endanger, than it did to preserve, women’s reproductive autonomy.168 Other critics of Roe point to weaknesses in Justice Blackmun’s reasoning.169 For example, Justice Blackmun disclaims any attempt at resolving the question of when life begins—yet his opinion did just that.170 Justice Blackmun’s assumptions, too, were problematic from the perspective of equity.171
Roe’s fundamental flaw, exploited recently by Mississippi, is that the right Roe enunciated is a right at all. Even a fundamental right is not absolute.172 Even if rights are taken as “trumps,” reality requires that states limit rights—so long as states can justify such limits.173 As the conservative project of privileging states’ Sovereignty carried forward, justification for limiting federal, fundamental right cheapened to nothing more than a state legislature’s whim.
Justice Blackmun’s trimester framework was the fruit of compromise for the sake of majority. As Justice Blackmun had originally sketched his framework, a woman had a right to abort in the first trimester, limited only by the a pregnant woman’s doctor, as early-term abortions are ordinarily as safe for women as is carrying a fetus to term; afterward a state could regulate so long as the regulation was stated with “sufficient clarity” so as to provided doctors fair warning.174 This, Justices Brennan and Thurgood Marshall argued, failed to give women enough time to discover their pregnancies, or to protect the poor or women of color.175 As it was delivered by the Court, the Roe decision denied personhood to the fetus and so protection under the Fourteenth Amendment.176 Had Justice Blackmun decided that a fetus was a person, abortion would be forbidden outright; by finding that a fetus is not a person, abortion could be allowed, at least for a time.177
The trimester framework is arbitrary; its virtue, compared with the sublime question of when life begins, is its simplicity. The number three is readily comprehensible and familiar in context. Justice Blackmun’s original formulation of the trimester framework demonstrates that he intended to entrust negotiating the ethical and moral propriety of the abortion procedure to the medical profession. His own background was likely a key influence.178 To the extent that Justice Blackmun hoped that by defining a fetus as something other than a person, and thereby excluding a fetus from the scope of the Fourteenth Amendment’s protections, he had erected an impenetrable doctrinal dam, Justice Blackmun was wrong. His hopes exceeded the grasp of his Due Process logic. Roe’s core flaw was Justice Blackmun’s blind faith in high theory, and consequent blindess to the low politics that would later dictate the terms of debate. Justice Blackmun miscalculated the lengths subsequent Courts would go in their partisan misadventure of devolving power from individual women to despotic states.
Justice Blackmun’s later opinions suggest he came to appreciate this essential weakness. In Thornburgh v. American College of Obstetricians and Gynecologists, the Court struck down a Pennsylvania law requiring physicians to provide information about abortion procedures to patients seeking abortions, to exercise care to preserve the fetus’ life, and to have a second physician present during an abortion operation.179 Writing for the majority, Justice Blackmun described the object of the right Roe set out to protect, a woman’s decision whether to carry a fetus to term, in superlative terms: “Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision . . . whether to end her pregnancy.”180 Justice Blackmun’s Due Process analysis in Roe left the abortion right vulnerable to its detractors balancing it into oblivion, or overturning it outright because the balance might remain in perpetual flux. In Thornburgh, Justice Blackmun compensated for that vulnerability by describing the idea behind Roe’s right—privacy—and the abortion right itself as belonging to the individual woman, as if she alone held it in a secluded hollow, impregnable by public law. It was too little too late.
In 1986, the state of Missouri enacted a law prohibiting public employees and facilities from performing or assisting abortions. The law’s preamble defied Justice Blackmun’s holding explicitly, proclaiming life begins at conception.181 In Webster v. Reproductive Health Services, the Court upheld Missouri’s law—without a majority opinion. Justice Scalia argued the Court ought to overturn Roe, and that its failure to, at that juncture, “needlessly . . . prolong[ed] this Court’s self-awarded sovereignty” over “cruel” and therefore “political” rather than “juridical” questions.182 Foreshadowing his “only proper objects of government” argument in Printz, Justice Scalia frames that question as simple to dispel of: whether to allocate decisionmaking authority between the federal Court and state legislatures.183
Writing for the plurality, Chief Justice Rehnquist rejected any balancing whatsoever: “[T]he State’s interest, if compelling after viability, is equally compelling before viability.”184 Given states’ always compelling interest in protecting prenatal life, the Court should review abortion regulation with the least exacting, most deferential degree of scrutiny in the Court’s toolbox, rational basis review. Roe survived Webster because of Justice O’Connor’s vote for the Chief Justice’s result, but not his reasoning. Since Missouri’s law did not prohibit abortions altogether, it was not yet time to reexamine Roe.185
In 1988, Pennsylvania passed a law in bald defiance of Roe and its progeny.186 The law required a woman seeking an abortion to wait twenty four hours before first requesting to obtain the procedure, during which time she was forced to listen to a prepared speech about the procedure, the health risks of abortion, the alternatives to abortion, the likely gestational age of the fetus, and a father’s liability for child support. Under Pennsylavania’s law, a married woman seeking an abortion had to sign a statement affirming that she had notified her husband.
By the time Pennsylvania’s law came before the Court, Justices Brennan and Marshall had resigned from the bench; Justices Souter and Thomas had taken their places. In other words, as the Court prepared for yet another reckoning with Roe, the Court’s composition suggested that Roe’s days were numbered. And yet, in 1992, by a vote of five to four, the Court again reaffirmed Roe. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the authors of a joint opinion wrote that it was high-time for each side of the abortion debate to reconcile, and to accept a “common mandate rooted in the Constitution.”187
In Casey, the Court did not uphold all of Roe. Casey upheld just Roe’s essential holding, and substituted Justice Blackmun’s trimester framework for an “undue burden” test for abortion regulation: whether an abortion regulation is valid hinges on whether that regulation places an undue burden on a woman’s access to abortion.188
The conventional story of procreative freedom in America continues next to the cynical snares hidden within Casey’s logic. Casey instructs that a law is unduly burdensome if its purpose or effect is to place a substantial obstacle in a woman’s path when seeking an abortion before a fetus reaches the point of viability. Casey also instructs that “[t]o promote states’ profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion.”189 Here, too, the whole truth is more complicated and more interesting.
“Liberty finds no refuge in a jurisprudence of doubt,” the Casey Court began.190 From conception, Casey was different than its progenitor, Griswold. Like Justice Blackmun had in Roe, the authors of Casey’s joint opinion founded their right in the Fourteenth Amendment:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.191
Liberty may have been the Casey Court’s bridgehead to the Constitution’s text, but Liberty was not its terminus. Casey’s chief contribution was its undue burden test.192 The Casey Court followed Justice Blackmun’s re-orientiation of Roe’s right in Thornburgh toward privacy, connecting the “private sphere of the family” with the “bodily integrity of the pregnant woman.”193
Casey’s joint authors’ use of the phrase “private” did not mean a negative freedom like freedom from unreasonable governmental searches or seizures—a buried ambiguity Casey’s dissenters raised.194 Casey’s authors meant a more gravid power, a power to decide.195 Justice Blackmun’s private notes reveal that Justice Kennedy was the fifth vote that sustained Roe.196 Justice Kennedy is responsible for the portion of Casey excerpted above, mentioning Liberty but also declaring the reason the Constitution protects decisions about family life in the first place: Dignity. By enumerating Dignity, Casey protects women’s power to render and to make real self-defining, self-governing choices of conscience.197 As Justice Stevens explained, “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”198 Casey’s authors expounded less a “right to be let alone,” and more the underlying reason a person should be let alone: In a society organized and free, society must give the individual not only space, but also respect.199
The essence of Roe that Casey upheld was that the blessings and burdens of birth are too “intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture.”200 Casey upheld Roe and so emanates from Griswold. The Court had come a long way since Buck. Casey’s right was not a right of privacy, not the family’s right to a refuge from public scrutiny. Instead, Casey’s right was like the object of Chief Justice Roberts’ Equal Sovereignty doctrine in Shelby County, a state’s power to decide moral questions. Casey’s right was one of Dignity, an individual’s power to decide.
The first approach originates from a dissenting opinion written in 1961 by the second Justice Harlan in Poe v. Ullman, a case about a criminal ban on the use of contraception.201 For Justice Harlan, history and tradition should inform but not constrain analysis of Due Process, whose full meaning he left to future experience to define. In Poe, Justice Harlan took the opportunity to sketch a method of examining Due Process claims by weighing individual Liberty against government interest, treating it as if the idea were alive and dynamic. “[T]hrough the course of this Court’s decisions it has represented the balance which our Nation, built upon the postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society.” Further, “[with] regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.”202
Justice Harlan’s sketch of Due Process did not remain in dissent for long. In search of precedent to support their construction of a right rooted in, but distinct from privacy, the joint authors of Casey cited to Justice Harlan’s Poe dissent.203 Casey’s joint authors’ citation imbued Justice Harlan’s Poe dissent with its plurality’s precedential weight, as if it had been a majority opinion.
Where Justice Harlan was prepared to look beyond the past in favor of progress, the Court’s second approach exalted history and tradition. Where the first may be malleable, the second approach is severe. The second approach draws from the majority opinion in Washington v. Glucksberg, a case about whether the right to privacy includes a right to physician-assisted suicide.204 Writing for a unanimous Court, Chief Justice Rehnquist framed the issue as whether the Constitution empowered the state to preserve life by preventing suicide.205 Chief Justice Rehnquist wrote that before Due Process could protect a substantive right, that right had to be rooted in history and tradition, so much so that it is “‘implicit in the concept of ordered liberty.’”206
Even if a Court were to find the requisite history and tradition to justify recognizing a right as fundamental, Glucksberg commands that a Court craft a “careful description” of the supposed right.207 For Chief Justice Rehnquist, history and tradition should guide a judge’s examination of Due Process, whose full meaning has already been discovered, but whose limitations require conservative construction.
Chief Justice Rehnquist’s dismissal of the first approach to recognizing rights was blunt; he referred to Justice Harlan’s Poe dissent contemptuously as a “modern justification.”208 Though Chief Justice Rehnquist concedes Justice Harlan’s Poe dissent is oft-cited, the Court, the Chief Justice insists, never abandoned the “fundamental-rights-based analytical method.”209 Chief Justice Rehnquist was nothing if not consistent.210 The Chief Justice argued that the state of “Washington has an ‘unqualified interest in the preservation of human life.’”211 The Chief Justice also took the opportunity to re-litigate the Casey joint authors’ willingness to make a positive right out of privacy. In Glucksberg, Chief Justice Rehnquist suggested the Court’s fundamental-rights-based approach tended toward negative rights, freedoms from government interference, rather than freedoms to any sort of entitlement or benefit.212 No matter that Casey had made binding precedent out of Justice Harlan’s Poe dissent.213 Lightly casting aside precedent and reviving forsaken logic, Chief Justice Rehnquist asserted, “[i]ndeed, to read such a radical move into the Court’s opinion in Casey would seem to fly in the face of that opinion’s emphasis on stare decisis.”214
A radical move, indeed.
Written in 1961, Justice Harlan’s Poe dissent was a creature of a “constitutional moment” in American history, witness to a social movement compelling otherwise inert institutions to move forward.215 For Justice Harlan, Due Process evolved alongside human experience in its richness and complexity. Justice Harlan’s analysis does not countenance any toadying to doctrinal punctilio when it means turning the other cheek to grave iniquity.
Such disregard for stricture was exactly the vice Justice Rehnquist meant to arrest with his Glucksberg approach to Due Process. Some twenty years before Glucksberg, in his dissenting opinion in Roe, then-Justice Rehnquist rebelled against such logic, writing that Justice Blackmun was wrongly importing “legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to [Roe] arising under the Due Process Clause of the Fourteenth Amendment.”216 Yet Justice Blackmun raised no meaningful argument about the Fourteenth Amendment’s Equal Protection Clause. For Chief Justice Rehnquist, Justice Harlan’s approach to Due Process spelled the Court’s legitimacy’s, and so the institution’s, steady undoing.
The struggle over which of the two approaches to apply is not academic. While the debate about the relative weight of history and tradition is abstract, its stakes are profound. To a litigant, the choice of approach may well dictate whether or not the Court determines that the Constitution recognizes an unenumerated right she claims, and grants her solace for its violation. To the Justices, the choice of approach may well dictate the legitimacy of the Court. Protect too few rights the Constitution’s text omits but equity counsels ought to be protected, and Justices risk their decisions’ reach exceeding the institution’s grasp. Protect too many rights too far afield from the Constitution’s text, and Justices risk their decisions’ finality and so their infallibility. A Court that allowed every law to stand would be unworkable. A Court that struck down every law would be intolerable.
The essence of Due Process is the assignment of decisionmaking power. This power underlies the Court’s decision whether to recognize a right as fundamental.217 At the same time that he oversaw the devolution of power from the national to state governments, by deciding Glucksberg, Chief Justice Rehnquist stultified Due Process to prevent future Courts from lightly casting aside important traditional values and inventing new ones in any misguided effort to expand the scope of individual rights.218 After Glucksberg, to the extent the Constitution secured individuals’ or minorities’ civil or political rights against discrimination, no matter how longstanding or engrained, it did so with Equal Protection rather than Due Process.219
In time, Due Process became a “backward-looking” concept that evolved to “safeguard[] against novel developments brought about by temporary majorities who are insufficiently sensitive to the claims of history.”220 As Popular Sovereignty had been domesticated and adapted to recalibrate the balance of Federalism in states’ favor, Chief Justice Rehnquist bent Due Process to partisan, ideological ends, arresting the idea’s momentum with Glucksberg’s restraints.
For a time.
Human Dignity, like procreative autonomy, emerged from an ugly case involving an Oklahoma law empowering the state to forcibly sterilize individuals convicted of felonies and whose pattern of offenses amounted to moral turpitude. In Skinner v. Oklahoma, the Court struck down that law.227 Concurring in Skinner, Justice Jackson wrote that the “dignity and personality and natural powers of a minority” limit the power of a “legislatively represented majority.”228 Decided some twenty years after the Court had failed Carrie Buck, in Skinner, the Court invoked Human Dignity to protect human individuals from society’s overbearing organization, from coerced conformity. In the decades following Skinner, the Court would raise a principle from the ashes of total war and set it against a burgeoning post-war police state, a principle so powerful it bent a sovereign’s will and ascended into our constellation of ideals central to the American experience, essential to our contemporary national identity.
Justice Murphy drew a line from the hoary heretical imperative that Chief Justice Marshall had posed a century earlier about Due Process to the trauma of total war—a line that led to a principle of Human Dignity. As active hostilities subsided, tribunals began to prosecute belligerents for their wartime atrocities. One American prosecution involved an Imperial Japanese Army commander’s actions in the Phillipines that resulted in no fewer than one-hundred thousand deaths.235 Dissenting in Yamashita, Justice Murphy wrote that the Due Process Clause of the Fifth Amendment secured “immutable rights” against popular frenzy, legislatures, executives, and courts alike, rights reposed in individuals, be they victor, vanquished, belligerent, or outlaw, rights owed on the basis of nothing more than humanness.236 For Justice Murphy, the Court’s vindicating the Constitution’s recognition of individuals’ Dignity was part and parcel with confronting, without unwittingly emulating, Totalitarianism.237 In another military prosecution, Homma v. Patterson, Secretary of War, the Court summarily dismissed the Defendant’s appeal in a single sentence.238 Again in dissent, Justice Murphy warned that a docile Court left no one safe, that judicial passivity invited “[a] procession of judicial lynchings without due process of law.”239
To negate the nothingness that followed wartime horrors of annihilation and extermination, Justices Frankfurter and Murphy articulated a notion of individual worth that flows from mere being. That notion’s application to military prosecution of belligerents, individuals who had abandoned human feeling for infernal cruelty, tested the notion’s limit. The proposition that such monstruous individuals deserve the Constitution’s respect is revolting, but also right. Were the Constitution to tolerate summary deprivations of individual Liberty without at least a single voice from within the halls of government registering meaningful dissent on that government’s behalf, then the outcome of World War II would have proved Pyrrhic. Martial conquest would have cost the nation its soul.240 In time, American jurisprudence came to accept that proposition.241 From the ashes of war rose Human Dignity.
In Trop v. Dulles, the Court ruled that the government’s revoking a citizen’s citizenship as punishment for wartime desertion violated the Eighth Amendment’s prohibition against cruel and unusual punishment.244 The Trop Court’s conclusion did not hinge on whether the litigant was charged or convicted of a crime, on whether the litigant’s crime was commited during peace or war, or even on whether the litigant was innocent or guilty. Human Dignity requires only humanness.245
Human Dignity went from thwarting abusive law enforcement to thwarting enforcement of abusive law. Justice Murphy’s thunderous articulations of Human Dignity reverberated in several landmark civil rights cases later in time. When the Court took up questions about civil rights, Justice Harlan wrote his Poe dissent. Justice Harlan’s basic proposition in Poe was that Human “[D]ignity and personality” limit any legislatively represented majority’s power; for that proposition, Justice Harlan cited Skinner.246 After its conscription to preserve precious tenets of democracy against collapse in the face of existential foreign threat, Human Dignity returned home to take up a new mantle, restraining the police state.
A skeptical reader might mistake Justice Murphy’s Dignity-talk as empty excess, inane flourish, pathetic appeal rather than reasoned argument. Human Dignity is no old chestnut. Time validated Human Dignity’s staying power and substance. In 2005, the last year that Chief Justice Rehnquist sat on the bench, in Roper v. Simmons, the Court ruled that the government’s attempt to execute a person under the age of eighteen violated the Eighth Amendment—doing so would deprive the child of Dignity.247 Writing for the Roper majority, Justice Kennedy listed Dignity among our first principles, alongside hallowed mainstays: Federalism, Separation of Powers, and Individual Freedom.248 Justice Kennedy’s use of Dignity was not as a florid platitude, but rather as an operative idea that limited government power. As the language of Human Dignity took root in the Court’s rights register, the Court gradually blessed the underlying idea of Human Dignity. Roper was Human Dignity’s song of ascent into our constellation of legal and political ideas as an independent value central to the American experience and essential to our contemporary national identity.
The relevant wisdom of Justice Holmes’ quip, that fidelity to tradition counsels against Glucksberg’ retrograde logic, suggests the focus of the following sections: how those impulses that had once animated Popular Sovereignty before the Civil War, and Due Process before Glucksberg, came to inhabit the space the Court created for Human Dignity, to vindicate an unenumerated right, and to humble a sovereign.
Instead, Dignity provided a path forward.
In Lawrence v. Texas, an opinion that began with “Liberty” and ended with “freedom,” the Court struck down Texas’s anti-sodomy law, and overturned Bowers.256 The Court agreed to consider whether Texas’ law violated either the Fourteenth Amendment’s Equal Protection or Due Process Clause.257 Writing for the majority, Justice Kennedy wrote that adults’ choice “to enter [into such a] relationship in the confines [] of home[] [cannot deprive them of] dignity as free persons.”258 Lawrence is ordinarily thought of as a case about privacy in the fashion of Griswold, a right to be let alone; Justice Kennedy was careful in Lawrence to point out that the police found Lawrence and Garner in a private home.259 Yet Justice Kennedy’s use of privacy in Lawrence was less akin to Justice Douglas’ in Griswold, and more similar to the concept enunciated by the joint authors in Casey. Privacy cannot tell Lawrence’s whole story.
Although Lawrence was decided several years before Roper, and so the Court had not yet recognized Dignity as an full-fledged value on par with Liberty or Equality, Lawrence was decided after Glucksberg. Recall that the crux of Glucksberg’s vision of Due Process is restraint by tradition. In Glucksberg, Chief Justice Rehnquist commanded the Court to cast an anchor. Yet by their favorable citation to Justice Harlan’s Poe dissent,260 the joint authors of Casey had already weighed anchor in anticipation of a rising tide.
Ultimately, Glucksberg’s definition of, and myopic focus on, tradition is circular and defeats itself. Yesterday’s novelty might well form tomorrow’s tradition; a tradition of rights exists only because generations of Americans reckoned with the imperfections of past practice and shortcomings of received wisdom. Monarchy, for one; enslavement for another. The Framers of our Constitution wrote the Due Process clauses with the humility of heresy, rather than pretensions of orthodoxy, mindful of the continual, inconstant dialectic that would shape human experience, and so jurisprudence. The Framers, Justice Kennedy wrote, did not presume to know the “manifold possibilities” of Liberty; rather, the Framers knew that “times can blind us” and that posterity might witness the rightful end of laws “once thought necessary and proper [that] serve only to oppress.”261 Defying Glucksberg, Justice Kennedy posited that “every generation can invoke its principles in their own search for greater freedom.”262 In Lawrence, the Court acknowledged that “for centuries there have been powerful voices to condemn homosexual conduct as immoral . . .”263 If Glucksberg had controlled, things would have ended there—those powerful voices spoke for tradition, and tradition spoke for the Court. Yet a history of discrimination weighed in favor of recognizing a right too long denied.264 Lawrence undid Bowers; curiously, Lawrence never so much as mentions Glucksberg.
Recall the Court’s grant of certiori—either the Fourteenth Amendment’s Equal Protection or Due Process Clause.265 Implicit in that disjunctive syllogism of “either-or,” is another possibility: “both.” Strictly speaking, the Court struck down Bowers based on Liberty grounds: that Texas’ law violated the fundamental rights of all persons to control their intimate sexual relations—all persons.266 Yet Lawrence necessarily helped some more than others.267 Although the Court found the Lawrence litigants’ Equal Protection argument “tenable,” the Court did not decide Lawrence on that ground.268 Odd, then, that Justice Kennedy comments in Lawrence that Romer v. Evans,269 a case only about Equal Protection, was of “principal relevance.”270 Although Romer involved a state’s discrimination on the basis of sexual orientation—and the fact that Justice Kennedy wrote it—Romer and Lawrence have little in common. By severing Glucksberg’s restraints on Due Process, Justice Kennedy freed it to drift towards Equal Protection.
The Fourteenth Amendment’s Due Process Clause protects what we choose to do. Its Equal Protection Clause protects “who we are,”271 and keeps government from imposing burdens on us because of our unchangeable attributes.272 To the extent Lawrence is about Equal Protection, it is not Equal Protection against mere classification. Lawrence goes further: It prevents laws from aggravating or perpetuating specially disadvantaged groups’ inferior status.273 Lawrence was about John Lawrence’s and Tyron Garner’s choice to engage in intercourse; it was also about John Lawrence’s and Tyron Garner’s immutable identities. Lawrence implicated both concepts, and illumined their symbiosis.274 No wonder that Justice Kennedy focuses the discussion of Bowers on discrimination rather than deprivation, that it demeaned a whole class on the basis of an unchangeable attribute.275 Lawrence was not only about a personal choice protected by the Due Process Clause, nor was Lawrence only about invidious discrimination on the basis of sexual orientation prohibited by the Equal Protection Clause; Lawrence was about a personal imperative rooted in one’s own essence.276
“Liberty,” Justice Kennedy writes in Lawrence, “presumes [] autonomy of self . . .”277 Liberty’s presumption augured Equal Sovereignty’s presumption Chief Justice Roberts articulated a decade later in Shelby County. Seminole Tribe, decided three years after Lawrence—and also written by Justice Kennedy—distilled states’ essential Dignity from an admixture of the Tenth and Eleventh Amendments. Casey refashioned Griswold’s and Roe’s procreative, negative right of Privacy into a positive right to Dignity. Casey removed any doubt that Dignity could succumb to tradition’s manacles. Dignity is dynamic as might be successive generations’ confrontation of our forerunner’s unwitting blindness or witting heedlessness. Lawrence vindicated more than who we are, more than what we do; Lawrence vindicated our self-discovery and self-construction. Together, Casey and Lawrence278 entwine Due Process with Equal Protection279 into a “tightly wound . . . legal double helix.”280
In 1996, Congress enacted the Defense of Marriage Act (DOMA), that defined marriage for federal purposes to mean legal unions between a man and a woman. Later in 2013, the Court struck down the part of DOMA that withheld federal recognition from state-recognized same-sex marriages in Winsdor v. United States.286 In Windsor, the Court focuses on Liberty, but not privacy.287 It recognizes the right to marriage as fundamental, but left open the question of whether same-sex marriage is a fundamental right.288 Windsor focuses on Equality,289 but does not say whether sexual minorities are a suspect classification, a necessary threshold question for Equal Protection analysis. Unlike Lawrence, where the Court entwined Due Process with Equal Protection, Windsor protected the Equal Dignity of same-sex marriage without grounding its decision in either.290
This was novel. Windsor introduced the phrase “Equal Dignity” into the jurisprudence as a separate category of right. To expound the phrase’s meaning, Justice Kennedy begins with structure by focusing on the conflict between state and federal power.291 Next, in a cryptic gesture, Justice Kennedy describes DOMA as problematic, “quite apart from the principles of federalism.”292
Apart from structure are rights. Contrary to DOMA, New York conferred “a dignity and status of immense import” on same-sex couples, and so “enhanced the recognition, dignity, and protection of the class in their own community.”293 Windsor begins to resemble Romer, a case Justice Kennedy also wrote, about Equal Protection. In Romer, the injury had been a state, Colorado, preventing by referendum vote a town, Boulder, from protecting LGBTQIA+ individuals. DOMA, Justice Kennedy wrote, is “designed to injure the same class the State seeks to protect.”294 DOMA’s injury is to Windsor, the litigant, but DOMA’s malignancy is its decision to move the power to decide what constitutes marriage from the states to the federal government.295 As Justice Kennedy writes, that malignancy’s “essence” is Congress’ purpose in enacting DOMA: “to influence or [to] interfere with state sovereign choices about who may be married.”296
The strand of Justice Kennedy’s logic that “causes academics’ heads to explode”297 is that DOMA’s injury to Windsor, a deprivation of rights guaranteed by the federal Constitution, is a deprivation of state rights.298 The problem: the Fifth and Fourteenth Amendments’ protections depend only on whether federal law confers a right.299 This is where Windsor’s mystery thickens. If the Court struck down DOMA with that logic, that is, if the Fifth and Fourteenth Amendments’ protection accounted for state law, then any state marriage law that discriminates against same-sex couples would fall. On the other hand, if the Court struck down DOMA on grounds of structure, that is, that states’ sovereignty over defining marriage is absolute, the Supremacy Clause as applied to marriage would be dead-letter, and any state marriage law that discriminates would stand. The intermixture of Liberty, Equality, and Federalism illumine the “hidden logic that helps make sense of [Windsor’s] many mysteries.”300 Windsor defies our impulse to segregate ideas into a comprehensible taxonomy; it entangles Liberty and Equality with Federalism because rights and structure can no more rightly be segregated than can races—in truth, they are one and the same. Structure, Federalism’s diffusion of lawmaking and enforcement power up and down, and across governmental entities, enables individuals asserting yet-unrecognized rights to register dissent, to “dissent by deciding.”301 In a federal system, power is diffuse among states and the national government but interconnected; neither any state, nor the federal government, can move without “tugging the other along.”302
Windsor did not resolve the question of marriage equality. Windsor chose alacrity over hesitation, but not heresy over orthodoxy. Instead, Windsor changed the conditions under which public discourse would occur.303 Justice Kennedy decided in Windsor that the national government—Congress and the Court—should move out of the states’ way as they “rethought the old consensus.”304 DOMA’s unwillingness to recognize same-sex marriage branded Windsor, the litigant, as inferior, undignified, and therefore undeserving of inclusion or participation in the national political community.305 Read in light of Windsor, Romer reads as much about allocation of decision-making authority as it does about preventing local political pressure from percolating upward to the state legislature, and from there to Congress.306
Dissenting in both Lawrence and Windsor, Justice Scalia prophesied that the Court would end up mandating a right to same-sex marriage to vindicate same-sex couples’ Liberty.307 Windsor teaches that equal dignity demands inclusion and it demands participation in the broader political community. Justice Scalia’s instinct was right because of the “interlocking gears” of rights and structure that together propel us forward.308
First, Obergefell relegated tradition to a subordinate role in analysis of substantive Due Process. Impressing the fallacy of Glucksberg’s defining tradition only looking backwards in time, Obergefell reprised Lawrence’s tonic key, the Framers’ clairvoyant, heretical humility.316 Next, the Court cites Justice Harlan’s Poe dissent to signal which of the two approaches to recognizing rights it would deploy.317 Rather than to Glucksberg, the Court points to four “principles and traditions” that explain the “reasons marriage is fundamental under the Constitution [and] appl[ies] with equal force to same-sex couples.”318
Second, Obergefell collapses the categories of negative and positive Liberty. A few months before the Court decided Obergefell, the Supreme Court of Alabama rejected a same-sex couple’s plea for Equality. Alabama’s high court reasoned that Lawrence struck down anti-sodomy laws because “government had no legitimate interest in interfering with consenting adults’ sexual conduct in the privacy of their bedrooms.”319 Dissenting in Obergefell, Justice Thomas argued the same, that ‘“liberty” had long meant “freedom from governmental action,” rather than any public entitlement.”’320 Lawrence did as the Alabama Court said it did—and more: “[I]t does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”321 Obergefell is the canonic marriage Equality case; and yet the Court’s concern is about the full promise of Liberty. Casey’s joint authors performed a similar maneuver with privacy.322 So, too, did the author of Lawrence with Equality, as did Windsor with Liberty. Marriage is well-suited to this logic: Marriage is a negative right in that it involves a “sacred precinct of the marital bedroom,” but also a positive right in that it requires the state to recognize and certify the union.323 In Casey, Lawrence, and Windsor, the Court elides negative and positive meanings. In Obergefell, the Court altogether collapses categories into a unified notion of an individual’s right to marry another individual of his or her same sex.
Third, Obergefell rebelled against Glucksberg’s specificity restraint, its requirement that the Court articulate a “careful description” of a right it recognizes as fundamental.324 The Court concedes that Glucksberg did so require, but reasons that Glucksberg’s specificity restraint was itself specific to physician-assisted suicide; that it was “inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. In each of the major cases where the Court took up a question to do with marriage, the question was not whether there is a right specific to the individual litigant or fact pattern, but rather whether there was “sufficient justification for excluding the relevant class from the right.”325 Obergefell loosened Glucksberg’s specificity restraint.
Obergefell’s doctrine of Equal Dignity returns the Court from Chief Justice Rehnquist’s Glucksberg approach, to the recognition of rights urged by Justice Harlan in his Poe dissent. The thrust of the Obergefell dissenters’ argument is that behind Obergefell’s madness, there is no method, only the whims of the majority. Abandon fixed rules of interpretation and the Court risks ceding control to individual Justices’ “theoretical opinions.”326 The Chief Justice compares Obergefell to Lochner v. New York, a case which applied substantive Due Process to construct an unenumerated right, freedom of contract, and struck down a federal law that limited the number of hours bakers could work.327 Lochner is the great bugaboo of constitutional jurisprudence; it is a metonymy for a vagarious, misadventurous, heretical Justice.
Obergefell was less heresy than it was reformation of orthodoxy. Obergefell may have unmoored the Court’s recognition of rights from tradition, but Obergefell did not leave the Court adrift. Instead, Obergefell provided a sextant and polestar: a principle of anti-subordination.328 Obergefell dovetailed Lawrence’s condemnation of laws that aggravate or perpetuate specially disadvantaged groups’ inferior status.329 Justice O’Connor’s concurrence in Lawrence left open the possibility that a state might solve the legal problem presented in Lawrence by doing more, by banning all sodomy, or by doing less, by abandoning all bans on sodomy; the resulting moral problem would be solved at the ballot, by voting out from office any opprobrious actor.330 Obergefell rejected hesitation for alacrity. A state’s or a judge’s hesitation is no justification for inflicting “dignitary wounds [which] cannot always be healed with the stroke of a pen.”331 It is the “dynamic of our constitutional system” that individuals whose Dignity falls under threat need not wait for their plight to dawn on society.332 That dynamic “withdraw[s] certain subjects from the vicissitudes of political controversy,” entrusting them to steadier institutions, guided less by frenzied passion, more by legal principle.333 The Due Process and Equal Protection clauses each propose independent principles, each illumines the definition and scope of the other, each pushes the other forward.334 Lawrence avowed humility about its knowledge of what freedom is. Obergefell honored protections derived from the “dignity and autonomy of the individual standing against the forces of coerced conformity,”335 it declared what freedom had to become.
Out of the ashes of war a hopeful notion of Human Dignity arose. If not for the Court’s aquiescence towards Reconstruction’s ignominious end, if not for Glucksberg’s undue constraints on Due Process, Dignity would have remained dormant. Dignity came to serve the Fourteenth Amendment’s deeper purpose; it does what its Framers must have intended for the Privileges or Immunities Clause to do. Obergefell’s doctrine of Equal Dignity made good on the Constitution’s promise to LGBTQIA+ people seeking to participate in the institution of marriage, humbling a sovereign.336
Obergefell thus vindicated an otherwise unrecognized right. That meant forcing a state to change its definition of marriage. In dissent, Chief Justice Roberts wrote that “[t]he fundamental right to marry does not include” such power, the power of a sovereign.337 In other words, even a right the Court had already recognized as fundamental, marriage to someone of the opposite sex, cannot empower an individual to commandeer a state toward heresy. The criticism mirrors Glucksberg’s argument, and its circularity is no less fatal in dissent.338 Invoking the sting of supposed backlash against Roe, Chief Justice Roberts wrote that the Obergefell majority was “[s]tealing this issue from the people…, making a dramatic social change that much more difficult to accept.”339 For the wrong reason, the Chief Justice was right. Difficult or easy, the Constitution commands that we accept that change. It was not from the people as an enfranchised collective that Obergefell took the issue. Obergefell returned the issue to where it had forever belonged—to the individual.
Although his Obergefell dissent might suggest otherwise, Chief Justice Roberts has elsewhere argued the same from another angle. In Shelby County, Chief Justice Roberts wrote about states as if they were persons, that the Voting Rights Act “subject[s] a disfavored subset of States,” “requir[ing] [them] to beseech the Federal Government for permission to implement laws.”342 He unambiguously hearkens to language the Court has used to scrutinize laws under the Equal Protection Clause that might relegate “disfavored class[es]” of individuals to “disfavored legal status.”343 The Chief Justice cites to the Tenth Amendment in Shelby County only once, as a prelude to situate his argument, and there lays the groundwork to establish states’ Equal Sovereignty.344 It could have been mere argument by analogy and nothing more.
Consider Sovereign Immunity. Seminole Tribe and Alden together instruct that because states are sovereign and so are immune from suit, Congress cannot strip states of that immunity—their Dignity prevents it.345 Alden retold history as if ratification of our Constitution depended upon that consensus, unspoken and unwritten at the Founding.346 Alden’s main argument was that states “are not relegated to the role of mere provinces or political corporations, but retain the Dignity, though not the full authority, of Sovereignty.”347 For the Framers, Justice Kennedy insisted, “immunity from private suits [was] central to sovereign dignity.”348
In support of his historical proposition, Justice Kennedy invoked a parade of Framers, Hamilton, Madison, and Marshall, whose identification with the Federalist Party made for a compelling series of endorsements.349 From these curated quotes, Justice Kennedy divines the Framers’ supposed original intent, and distills it into a “fundamental postulate[] implicit in the constitutional design,”350 that states are sovereign and so are above the fray of legal rights and remedies. Justice Kennedy’s historical methods are at best problematic and, at worst, deceptive. Justice Kennedy quotes debates over ratification, which were equal parts legal explication and political theater, intended to mollify anti-Federalist opposition.351 It seems farfetched that the likes of Hamilton, the quintessential advocate of a powerful national government, would have endorsed Alden’s theory of states’ Sovereignty, Dignity, or Immunity.352
Consider the anti-commandeering doctrine. In Printz, Justice Scalia begins with the premise that the Constitution established a system of “[D]ual [S]overeignty.”353 Justice Scalia’s conclusion is that the Constitution protects state Sovereignty against federal compulsion. To arrive at this conclusion, Justice Scalia invokes The Federalist No. 15, written by the original Federalist himself, Hamilton. Referencing Hamilton and others who wrote that the People are “the only proper object” of government, Justice Scalia deduced that states could not be a proper object of federal authority.354 Chief Justice Marshall relied on the Tenth Amendment’s distinction between the People and the states to curtail a state’s power relative to that of the federal government;355 Justice Scalia relied on the Tenth Amendment to curtail federal power relative to that of the states.
In Justice Scalia’s vision of the Constitution’s architecture, the People benefit from a “double security,” that “different governments will control each other, at the same time that each will be controlled by itself.”356 Is incontestable that Justice Scalia was a maestro of rhetoric. Of all the quotes in American jurisprudence that would have supported his reasoning, Justice Scalia chose one that cast the People in a passive, singular role: as the only object, and an object, only. Justice Scalia’s usage of “object” marked a striking departure from Hamilton’s contemporaries’ use of that same phrase. For example, Chief Justice Jay used the phrase in Chisholm, referring to “ensur[ing] justice” as an “object[],” and to the People as “fellow citizens and joint sovereigns.”357 Given Justice Scalia’s command of language, this grammatical sleight of pen suggests not only that the people are the only proper object of government, but that they are an object only—never subjects, never syntactic protagonists in control of the government of their own destinies. More casuistry than solecism, the double meaning would not have been lost on Justice Scalia.
From Justice Scalia to Kennedy, all profess fealty to a common orthodoxy: Dual Sovereignty. All assume that from states’ Sovereignty flows their Dignity. That cannot be right.
In 1992, orthodoxy’s edifice cracked.
In 1992, voters in Arkansas amended their state constitution to impose term limits on their representative to the federal government, unwittingly setting the stage for a confrontation over “first principle[s].”359 In U.S. Term Limits, Inc. v. Thornton, the Court struck down the amendment, concluding that neither Congress nor the states can add to the Constitution’s requirements for congressional office. The dissenters360 agreed that the Constitution set “a ceiling” for Congress’s additions, but argued those same limits set “a floor” for the states.361 Like McCulloch had held a state cannot literally tax the federal government, Term Limits held that no state can figuratively tax the collective intelligence of Congress by limiting its members’ tenure.362 Yet neither the majority,363 nor the dissenters, had much to say about actual term limits. The Justices hardly debated the wisdom of the Arkansas voters’ amendment. Instead, the Justices’ debate centered on first principles, to whom the Constitution grants the power to decide whether there ought to be term limits.364
The majority argued that after entering into the Union, states retained two kinds of powers only: first, power that belonged to the states before entry into the Union, reserved to states by the Tenth Amendment; and second, powers the Constitution delegated to them.365 Since Congress did not exist before the Union, and the Constitution does not delegate to states the power to set qualifications for congressional office, the Arkansas voters’ amendment was invalid. Writing in dissent, Justice Thomas argued the “ultimate source of the Constitution’s authority” resides in the “peoples of each individual state . . . not an undifferentiated people of the Nation as a whole.”366 The act of Constitution was less an act of popular Sovereignty, and more one of state Sovereignty. Ratification meant the peoples of each state surrendered powers the Constitution expressly withdrew from them, or others withdrawn by necessary implication. All other power, like setting term limits, Justice Thomas concluded, is reserved to the states.367 Justice Thomas’ formulation is striking; the breadth of power he proposes that the Tenth Amendment assigns to the states evokes John C. Calhoun’s proto-Confederate vision of nullification.368
Term Limits is both banal and exceptional. Banal because the composition of majority and dissent reflects partisan ideology, except for Justice Kennedy, who broke rank from conservatives and so the partisan stalemate. Exceptional because the Court does not ordinarily broach first principles. For himself, Justice Kennedy wrote of the act of Constitution that the Framers “split the atom of sovereignty.”369 Although splitting atoms connotes halves and so conforms to Dual Sovereignty’s orthodoxy, the idea is ambiguous. Atoms might be manipulated to release energy either by fusion (unification) or fission (separation).370 Term Limits provided early insight into Justice Kennedy’s heretical thinking that matured into Obergefell. Term Limits also provided a foundation for conservative jurists to embattle Dual Sovereignty and its doctrines into the Court’s orthodoxy.
The crack in the orthodoxy’s edifice is slight but runs through its foundation, marrow-deep. Justices debated over contemporary consequences of the metaphysics of the act of Constitution. That debate fits with Dual Sovereignty’s orthodoxy in every way but one. Both Terms Limits’ majority and dissenters take for granted that the Tenth Amendment establishes three sovereigns.371
Chisholm held that Article III of the Constitution extended federal courts’ power to hear suits brought by individuals against states for violations of state law. The issue in Chisholm, as Justice Wilson put it, was: If a dishonest merchant made a promise and broke it, the merchant would be sued; if a state made a promise and broke it, why should the state be immune from suit?372 For Justice Wilson, there was an existential danger in establishing “haughty notions of state independence, state sovereignty and state supremacy.”373 “In despotic governments, the government has usurped, in a similar manner, both upon the state and the people . . . In each, man is degraded from the prime rank, which he ought to hold in human affairs: In the latter, the state as well as the man is degraded.”374 Given American notions of Popular Sovereignty, federal courts’ power to hear individuals’ claims brought under state law was the only and obvious conclusion.
Justice Wilson’s conclusion proved intolerable to the states, and so they ratified the Eleventh Amendment.375 The states’ reactions to Chisholm were swift and severe. Georgia’s House of Representatives passed legislation rendering any judgment upon itself on behalf of Alexander Chisholm a felony punishable by “death, without the benefit of clergy.”376 The chronology of states’ reactions is fact, and signals that Chisholm violated the states’ and Framers’ “original understanding of states’ immunity from suit in federal courts.”377 This is the story that the Court set out in Hans378 in 1890, and that the Court retold in Seminole Tribe of Florida,379 and Alden.380 Chief Justice Rehnquist, in Seminole Tribe, called Chisholm a “now-discredited decision,” and reaffirmed Hans’ endorsement of Chisholm’s dissent: “I can readily assume that Justice Iredell’s dissent . . . correctly states the law that should govern our decision today.”381
This rendition of events tells only part of the story.
The Eleventh Amendment was not passed overnight—it was sent to the states for ratification after two sessions of Congress.382 Massachusetts Congressman Theodore Sedgewick proposed an Eleventh Amendment far broader than the one states ratified.383 Even Congressman Sedgwick’s expansive proposal addressed only the scope of judicial power to hear cases. To the extent that they register in the historical record, public debates about Chisholm spoke of narrow “suability,” not Sovereignty.384 Perhaps Chisholm’s conclusion of states’ legal exposure and so their financial vulnerability threatened states’ solvency. Perhaps it was material motivations rather than political beliefs that impelled states’reactions.385
Chisholm was decided in 1793, Hans in 1890. Closer in time to Chisholm in 1810, writing for the Court in Fletcher v. Peck, Chief Justice Marshall, a contemporary of the Framers, rejected the narrative that Chisholm was wrongly decided: “The constitution, as passed, gave the courts of the United States jurisdiction in suits brought against individual States.”386 Chief Justice Marshall concedes that the Eleventh Amendment changed certain things: “This feature is no longer found in the constitution”387; the “feature,” meaning states’ suability. Chief Justice Marshall’s account of Chisholm teaches two lessons: first, that in the Constitution’s original form, natural individuals were sovereign superiors to their contrived inferiors, the states; and second, that while Chisholm expounded both Popular Sovereignty and suability, the Eleventh Amendment addressed suability, only.
Of the past, we can be certain of little more than that we cannot be certain of much. This much is certain: Federalists sought to avoid another convention following Chisholm and so conceded to the states the Eleventh Amendment to the Constitution.388 That Amendment repudiated part, but not all of, Chisholm. Chisholm’s conception of Popular Sovereignty survives.
C. The Third Sovereign
Consider the Virginia Ratification Convention. The Virginia Convention’s reservations were typical among Anti-Federalists: leeriness about losing independence won in Revolution to a new overbearing, national government. Federalists contended the Constitution’s enumeration of the national government’s powers was limit enough: the new government could exercise only as much power as the Constitution granted it.393 A favorite target of Anti-Federalist ire was Article I, Section 8, which grants to Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers…”394 To us, the notion of Congress’ implied powers is prosaic. For Anti-Federalists, the “Sweeping Clause” was a dramatic reversal, monarchy reincarnate.395 To Federalists, these arguments missed the point: the offending clause’s sweep was limited by such language as “necessary” and “proper,” and so offensive laws regulating speech, religion, allowing general warrants, abolishing jury trials, and the like were already unlawful.396 Federalists nevertheless recognized the political exigency of compromise, and so the Bill of Rights came into being.
The Virginians’ proposed Tenth Amendment omitted “the people.”397 Although the Virginia Convention ultimately ratified our Tenth Amendment, it rejected it initially because of the final clause, “or to the people.” The addition, they believed, was calculated to undermine states’ power.398 The Virginians’ fear was that by assigning the residuum of sovereignty to the People of the United States, rather than to the peoples of each state, the Constitution would leave the measure of power reserved to states’ legislatures, if any, in doubt.399
The historical record is unclear about the precise origin of the Tenth Amendment’s final clause. Orthodoxy insists that on August 22, 1789, Maryland Representative Daniel Carroll objected to the addition of the phrase, “or to the people,” because it “tended to create a distinction between the people and their legislatures.”400 The historical record is not so certain. The Annals of Congress reports that Daniel Carroll moved to add the language; New York’s Gazette of the United States reports that Elbridge Gerry, James Madisons’ Vice President, made the motion, and that Carroll objected.401 Daniel Carroll was a Roman Catholic who was denied any representation or participation in government in colonial America on account of his faith.402 Although after 1776 Carroll could participate, even in the process of drafting our Constitution, he remained a minority; all but three of the Framers belonged to some denomination of Protestantism.403
Given the conflicting historical accounts, there is no way to know which of Elbridge Gerry and Daniel Carroll proposed or opposed the phrase. Gerry, an Anti-Federalist standard-bearerer of Jefferson’s Democratic Republican party, is familiar enough a character to infer what he meant by his use of the phrase: that the central government’s actions should be dictated by, or conform to the actions of the states.404 Of Carroll, we can be certain that he would have been familiar with Coode’s Rebellion, a violent Protestant uprising in 1689 in Maryland against a colonial government chartered to, and operated by, Roman Catholics.405 We might fairly infer, then, that by his use of this phrase, Carroll meant that government could secure individual freedoms, at least to religious practice and political participation, on two conditions: first, that a state legislature’s composition is representative of those individuals it purports to represent; and second, that the People are a distinct entity, both from legislatures, and from the states.
If this interpretation is correct, the orthodoxy of Dual Sovereignty, its central dogma of elision of “the people” and “the states” and their legislatures,406 must fall. The Constitution’s text confirms, at least, Carroll’s distinction of “the people” from both “the states” and their legislatures. Apart from the Bill of Rights and Constitution’s Preamble, the only mention of “the people” in the Constitution, as it was originally drafted, is in Article I, Section 2, which lays out the House of Representatives’ composition and electoral intervals: “The House of Representatives shall be composed of Members chosen every second Year by the People . . .”407 The Constitution uses the term “legislature” to refer to the states’ elected representatives; Article I, Section 3 provides that “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . . .”408 The People are distinct not only from the states, but also from any legislature. There is no direct or definitive evidence, to be sure, but there is evidence enough to surmise that Gerry opposed, and Carroll proposed the phrase, and that Carroll’s meaning signals a third sovereign: the People.
Reality’s messiness aside, a problem remains: if the Tenth Amendment’s addition to the Constitution was to furnish a space for a third, individual sovereign, it would appear to conflict with the Ninth Amendment, the other Popular Sovereignty amendment.415 The Ninth Amendment reads: “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”416 If the Tenth Amendment’s third sovereign is the individual, it would render the Ninth Amendment illogical or superfluous.417 Were it the same “pot of sovereign powers,” that criticism would be fatal. The Ninth Amendment’s use of the phrase “rights” versus the Tenth Amendment’s “powers” belies the criticism. If there were no difference in the Amendments’ meaning, there would be no difference in their text. There is, however, a difference in the Amendments’ text, and so there must be difference in meaning.
Consider the right to vote. Is it a right, or a power? The act of voting is individual. Yet, the act is meaningful only when exercised alongside others as part of an election. In ordinary times, in elections for public office and the like, collective and individual conceptions of Popular Sovereignty overlap. In ordinary times, voting presents as a right. In extraordinary times, when a vote is cast as part of a Convention, we can see that voting is also a power. That power is both individual and collective; a vote cast only counts if cast as part of a Convention. Our vote cast in a Convention to alter or abolish a form of government emulates in our time the Framers’ generation’s constitutive decision to form a Union. In extraordinary moments, voting is neither a political nor civil right; voting is a sovereign power.
Popular sovereignty is neither wholly, nor necessarily collective or individual. The error in logic is not collapsing individual with collective rights; instead, the error is collapsing ordinary, positive rights, with extraordinary, ultimate powers.418 Justice Wilson wrote in Chisholm that Georgia retained legislative authority, yet was less than a full sovereign, and so Georgia was inferior to natural individuals.419 Ordinary power of positive law belongs to governmental sovereigns; extraordinary power of ultimate law belongs to each individual. Chief Justice Jay wrote in Chisholm that our Constitution’s “great and glorious principle” is that “the people are the sovereign of this country” and that the People are “fellow citizens and joint sovereigns.”420 We are fellow citizens when we exercise our privileges or immunities. We are persons when a government deprives us of life, liberty, or property without Due Process of law, or denies us Equal Protection of the law. We are sovereign when we exercise those powers the Tenth Amendment reserves to us. Dual Sovereignty’s orthodoxy made a “truism” out of the Tenth Amendment. Lift the veil of orthodoxy and observe the Amendment’s truth. The Tenth Amendment’s final four words delineate powers possessed by neither the federal government, nor the states; it reserves power to the third sovereign, to you and to me.421 Choosing government representatives or deciding to alter or abolish a government, might be history’s archetypal examples of Popular Sovereignty. Choosing government representatives is one, but not the sole expression, of Popular Sovereignty’s beating core: choice.
Where are those boundaries? If there are three sovereigns, what decisions fit within the compass of the third sovereign’s powers? The Constitution could not withdraw all choice from this third sovereign and allocate power solely to governmental sovereigns, this would be intolerable. Nor could the Constitution remand all choice to it, this would be unworkable. The Framers provided us an exemplar of compromise in the form of voting. The Tenth Amendment’s final clause signals that voting is not alone: “The powers not delegated . . .” The Tenth Amendment’s ambiguity is doubtless deliberate. The generations that wrote and ratified the Bill of Rights and the Reconstruction Amendments could not know, and did not presume to know, the whole of freedom; they entrusted us to discover its scope and meaning.424 Dominion belonging to the third sovereign, like her governmental companions’, expands or contracts with time. Perpetual reassessment of that compass is how the Constitution sustains the heavy burdens of democracy, withstands the strains of the Framers’ grand experiment.
Where the text of the Constitution is silent, the jurisprudence speaks.
Due Process embodies this same idea. The Court’s recognition of a right as fundamental withdraws from some individual or group, and assigns to another, the power to decide.427 On the surface, Chief Justice Rehnquist’s Glucksberg opinion, and Justice Harlan’s Poe dissent are two distinct approaches to recognizing unenumerated rights. In truth, each is a distinct approach to the allocation and assignment of decisionmaking power. Glucksberg’s emphasis on history and tradition favors orthodoxy over heresy, hesitation over alacrity. Glucksberg recognizes fundamental rights only if they are “‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty.’”428 Justice Harlan’s Poe dissent looked to history and tradition, but looked beyond them, too. In Obergefell, Justice Kennedy embraced Justice Harlan’s approach, and dismantled much of Glucksberg—but not all of it: “[W]hile [Glucksberg] may have been appropriate for the asserted right there involved [physician-assisted suicide], it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.”429 Some piece of Glucksberg endures.
Justice Kennedy was vague as to which piece that might be. Perhaps it is that not all rights, not even all fundamental rights, are the same; that the Court ought to draw distinctions among rights,430 and between rights and powers. Perhaps it is that the difference between the rights to marriage and intimacy and a right to physician-assisted suicide is that one is fundamental, and the other constitutive and thus ill-suited to Due Process’s protection. Ill-suited not because the Constitution cannot protect it, but because the Constitution should protect it as integral to Human Dignity. If this is the strand of Glucksberg’s logic that Justice Kennedy sought to sever from the rest and to preserve, together with Obergefell’s notion of Equal Dignity, they teach that the substance of the decision the Court is assigning power over ought to dictate the Court’s analysis, and not the other way around. Where the decision is constitutive, the Court should assign the power to decide, as the Tenth Amendment’s final clause instructs it must, to the People.431
Consider the decision whether to bear or beget a child. A legislature cannot by fiat coerce a child-bearing individual into conforming to its decision, because the long and lasting labors of birth impose a “suffering [] too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture.”432 The Court has assigned the decision to the individual woman because the decision is “personal and intimate,” “properly private,” and “basic to individual dignity and autonomy.”433 Affirming that assignment, the Court described the decision as “defin[ing] one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”434 Were the choice assigned to a government rather than the individual, “[b]eliefs about these matters could not define the attributes of personhood.”435 The questions remanded to the third sovereign are the most solemn questions, “traumatic [] and [] empower[ing]…” and whose assignment to the individual is a mandate of “basic [H]uman [D]ignity.”436 It is for the individual to answer these questions not because of citizenship, not because of race or creed, but because of her humanity.437
Glucksberg rejected an argument about physician-assisted suicide like this one about abortion. The Court has since rejected much of Glucksberg. Consider, then, the Ninth Circuit’s reasoning affirming the individual’s right to a physician-assisted suicide:
Some argue strongly that decisions regarding matters affecting life or death should not be made by the courts. Essentially, we agree with that proposition. In this case, by permitting the individual to exercise the right to choose we are following the constitutional mandate to take such decisions out of the hands of the government, both state and federal, and to put them where they rightly belong, in the hands of the people. We are allowing individuals to make the decisions that so profoundly affect their very existence – and precluding the state from intruding excessively into that critical realm. The Constitution and the courts stand as a bulwark between individual freedom and arbitrary and intrusive governmental power. Under our constitutional system, neither the state nor the majority of the people in a state can impose its will upon the individual in a matter so highly "central to personal dignity and autonomy." Those who believe strongly that death must come without physician assistance are free to follow that creed, be they doctors or patients. They are not free, however, to force their views, their religious convictions, or their philosophies on all the other members of a democratic society, and to compel those whose values differ with theirs to die painful, protracted, and agonizing deaths.438
These are not the decisions of everyday life. These are deterministic questions of discovery, construction and even destruction.439 These are choices whose consequences reverberate through time, define the essence of, and determine the course of, one’s existence. Any law threatening to place a substantive or procedural obstacle in the way of rendering such choices would be “extraordinary.”440 The Personal Question Doctrine would strike down laws that survive scrutiny under ordinary Due Process analysis or Casey’s undue burden test, because both condone states’ “disparate treatment”441 of natural, sovereign indivduals in a “fundamental way.”442 The crux of such laws’ injury is their failure to distinguish between rights and powers, between buying health insurance443 and choosing to meet death on one’s own terms.444 In the name of protecting potential life—a boundless notion that threatens to enlarge states’ police power to no principled end—such laws ascribe presumptive moral culpability to women on the basis of bygone notions of a woman’s role in society as domestic procreator, or worse, an overriding distrust of women so thorough as to bond her, to degrade her, and to condemn her. These decisions are moments of tragedy that might tarnish, or triumph that might burnish, human experience; moments we face as mortals, alone in communion with eternity. The text of the Constitution contemplates one decision, whether to alter or abolish a form of government. The jurisprudence suggests another: the decision whether to bear a child.
On the surface, Due Process and the Personal Question Doctrine do something similar: each assigns a decision. Due Process assigns decisions as rights owed to citizens or persons whose protections flow from either Liberty or Equality. The Personal Question Doctrine assigns decisions as power owed to a natural sovereign whose protections flow from Dignity. Where the origin of a decision’s assignment is Human Dignity, it draws from an ancient mainstem,445 universal and unassuming, flowing a greater distance and with greater force than could its tributary streams, Liberty and Equality, even as they entwine.
Observe the cascades downstream.
Powers are different. The terms of the Constitution’s delegation can be, and have been, changed by proper amendment. Powers the Constitution has already committed to one sovereign entity or another, absent amendment, cannot be waived. Even if an individual’s past conduct causes her inability to exercise her power later in time, that past conduct cannot amount to a waiver.452 “The Constitution’s division of power among the three Branches,” three organs of a single larger, sovereign entity, “is violated where one Branch invades the territory of another, whether or not the encroached-upon Branch approves the encroachment.”453 The reason for waiver’s impotence to fiddle with the Framers’ design, the reason one governmental sovereign cannot consign its duty to decide away, is the nature of the decision.454 At stake is individual Liberty.455 Our Declaration of Independence reads: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”456 The Declaration continues: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it…”457 The Declaration mentions two, distinct kinds of rights: “rights” secured by a limited set of powers we distribute to Governments, and “Rights” we keep for ourselves; the latter are the powers reserved by the Tenth Amendment. Capital-R “Rights,” our sovereign powers, are “unalienable.”
Perhaps the sentiments contained in the following pages, are not yet sufficiently fashionable to procure them general favor; a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason.459
The founding generation chose heresy over an orthodoxy which was the product of lassitude and sloppy thought. At the moment of Independence, that generation declared:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.460
The founding generation chose alacrity. At the moment of Constitution, the Framers wrote, “[w]e the People of the United States, in Order to form a more perfect Union…[to] secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”461
The Framers of our Constitution chose to harness boundless discord to create a harmonious equipoise. The Framers of our Constitution chose pluralism.462 At moments of triumph and tragedy in our lives, at constitutive moments, each of us stands alone. This article has presented landscapes of history to justify remanding these moments’ decisions to the individual to decide as the Tenth Amendment commands. These sketches, isolated from jurisprudence’s flow through time, are parsimonious compared to the richness and complexity of the larger scheme of things,463 a scheme that can and will only grow richer in complexity. Beneath the surface of that tumultuous flow are quiet depths. There, the weight of history arrests any oppressive impulse, crushes the cruel artifice of orthodoxy. Discovery takes curiosity, construction dexterity, and destruction empathy. The Personal Question Doctrine empowers us to peer into that tranquil abyss, to find the good in bad things,464 and to navigate through the fierce storms of life, to carry toward fruition the idea of the Constitution.
* UCLA School of Law, J.D. 2021; Washington University in St. Louis, B.A. 2016. I am grateful to Professor Jennifer Chacon. Her insights and encouragement were invaluable to this project and to me. I am especially grateful to my father and mother, both of whose love and guidance carried me to today. I am also grateful to my student editors, whose herculean efforts improved this article immensely. Each error I made in writing this was a portal of discovery. Those, and those errors yet undiscovered, are my own. I hope you enjoy reading as much as I enjoyed writing.
1 Elizabeth Cady Stanton, Solitude of Self, Address Before the Committee of the Judiciary of the United States Congress (Jan. 18, 1892), reprinted in Series V: Printed Materials, 1850–1972, at 1–8.
2 Abraham Lincoln, Speech on the Kansas Nebraska Act at Peoria, Illinois (Oct. 16, 1854) (transcript available at Political Speeches and Debates of Abraham Lincoln & Stephen A. Douglas 1854–1861, at 1 (Scott, Foresman, & Company 1896)).
3 I write this article to propose the Personal Question Doctrine. In the course of articulating that proposition, I rely on history—certain figures, narratives and ideas. Throughout, I present history honestly and, insofar as I can, objectively. I do so with few illusions. No bias is acceptable, but some is inevitable. The Framers, Cady Stanton, Lincoln, and every Supreme Court Jurist to whom I cite are human, prejudiced, and therefore cannot be wholly innocent in this regard. The same goes for the principles. “Individual freedom” for decades meant, indeed still means, freedom for some, not all. The Framers’ “timeless principles” relied, in part, on a pervasive system of peculiar subjugation of segments of society, Black people and women especially. My purpose here is not to scrutinize and deconstruct all of the history I bring to bear to my argument, or even most of it. My purpose here is to sketch landscapes of history and to propose a concept within the confines of a single article. To that end, I invite you to traverse with me arduous, divisive terrain in hopes of further extending Sovereignty and tilting history toward liberation. At moments, moral judgment is necessary. Elsewhere, I made the editorial choice—right or wrong—to withhold it. Where I fall short, I consider it part of my own intellectual journey and moral education.
4 John L. Gaddis, On Grand Strategy 173 (2018).
5 Id.
6 See The Federalist No. 10 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Equipoise also depended, in practice, upon subordination of whole swaths of society, though a comprehensive account is beyond the parameters of this article.
7 See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (2000).
8 U.S. Const. amend. X.
9 Josh Gerstein & Alexander Ward, Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows, Politico (May 3, 2022), https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473.
10 See Ruth B. Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375 (1985). Throughout this article, I refer to individuals capable of bearing children as women. That is not to suggest that individuals who identify as women are the only ones among us who are capable of bearing children. The phrase is meant not to exclude, and to the extent possible, should be read to include.
11 Theories of old that have sought to do the same falter for want of workable criteria for discerning ordinary from extraordinary decisions. Some propose we follow the general pattern of the Framers’ mandates, or their penumbras and emanations. See Griswold v. Connecticut, 381 U.S. 479 (1965). Others propose we follow the First Amendment’s injunction that church and state remain separate, that religion and conscience so thoroughly pervade these decisions that the First Amendment must be invoked to keep a civil government from entangling itself with ecclesiastical questions. Laurence H. Tribe, Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 11 (1973). Each fails to withstand criticism, for example, that were a given right to trump all limits, then lawless force would prevail over the force of law, Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" that Dare Not Speak Its Name, 117 Harv. L. Rev. 1893, 1938 n.174 (2004) [hereinafter Lawrence v. Texas]; Jamal Greene, Rights as Trumps?, 132 Harv. L. Rev. 28, 1 (2018), or even if a government affords individuals a choice it might yet withhold the means to decide. See, e.g., Laurence H. Tribe, The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence, 99 Harv. L. Rev. 1, 333 (1985). When the well thought out formulae of the past fail to provide the answer to a case which raises problems of such fundamental importance, a woman’s individual right to choose whether to terminate a pregnancy, it is time to pause and search for fresh concepts. Norman Redlich, Are There "Certain Rights . . . Retained by the People"?, 37 N.Y.U. L. Rev. 787, 795 (1962).
12 Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 324–25 (1816) (reaffirming the Constitution’s Preamble’s fiction: that the “people of the United States” ably delegated sovereign authority as they deemed necessary and proper, and suggesting that there were specific “sovereign authorities” the People reserved to themselves).
13 Hugh Evander Willis, The Doctrine of Sovereignty Under the United States Constitution, 15 Va. L. Rev. 437, 437 (1929).
14 Wilson R. Huhn, Constantly Approximating Popular Sovereignty: Seven Fundamental Principles of Constitutional Law, 19 Wm. & Mary Bill Rts. J. 291, 297 (2010).
15 In his speech in Peoria, Illinois, President Lincoln alluded to this principle, calling it the “sheet anchor of American republicanism.” Lincoln, supra note 2.
16 Sanford Levinson, Popular Sovereignty and the United States Constitution, 123 Yale L.J. 2644, 2653 (2014) (discussing the declaration of independence and the constitution).
17 See Edmund S. Morgan, Inventing The People: The Rise of Popular Sovereignty in England and America 306 (1988).
18 James Wilson, Lectures on Law Delivered in the College of Philadelphia in the Years One Thousand Seven Hundred and Ninety, and One Thousand Seven Hundred and Ninety One, reprinted in The Works of James Wilson 67, 80–81 (Robert Green McCloskey ed., 1967); see also Jeremy M. Sher, Note, A Question of Dignity: The Renewed Significance of James Wilson's Writings on Popular Sovereignty in the Wake of Alden v. Maine, 61 N.Y.U. Ann. Surv. Am. L. 591, 599–600 (2005).
19 James Wilson, Speech Delivered at the Convention of Pennsylvania (Nov. 26, 1787), in The Works of James Wilson Volume II, 772 (Robert Green McCloskey ed., 1967).
20 Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1432–60 (1987).
21 Id.
22 Id. at 1459–60.
23 Id. at 1441, 1459 n.148 (Whereas Amar interprets the right to “alter or abolish” as a sort of legalized and channeled version of a more lawless-sounding right to revolution, I suggest it can be interpreted more broadly as a power to decide over questions of an ultimate nature. Whether a convention alters or abolishes a government belongs to this category of constitutive question, whether to meet one’s imminent demise on one’s own terms may be another.).
24 Sher, supra note 18, at 593, 596 (As Wilson explained to the Constitutional Convention of Pennsylvania in 1787: “the people may change the constitutions, whenever and however they please. This is a right, of which no positive institution can ever deprive them.”).
25 See Chisholm v. Georgia, 2 U.S. 419 (1793).
26 Calvin R. Massey, State Sovereignty and the Tenth and Eleventh Amendments, 56 U. Chi. L. Rev. 61, 62 (1989).
27 Id. at 98.
28 Id.
29 Id.
30 Massey, supra note 26, at 98–101.
31 See Chisholm v. Georgia, 2 U.S. 419 (1793).
32 Chisholm, 2 U.S. 419 at 472. Chief Justice Jay expounded on the differences between American and European permutations of Popular Sovereignty with distinct authority. Not only had served as ambassador to France and Spain, he had also presided over the Continental Congress. See John Jay, Britannica, https://www.britannica.com/biography/John-Jay (updated Dec. 8, 2021).
33 Chisholm, 2 U.S. at 477.
34 Id. at 479.
35 Each Justice came close to invoking it, though none did. Sharon E. Rush, Oh, What a Truism the Tenth Amendment Is: State Sovereignty, Sovereign Immunity, and Individual Liberties, 71 Fla. L. Rev. 1095, 1105 n.38 (2019).
36 The disagreement over Chisholm’s outcomes may explain why most first year Constitutional Law courses omit it entirely. See Randy Barnett, The People or the State?: Chisholm v. Georgia and Popular Sovereignty, 93 Va. L. Rev. 1729, 1729-58(2007).
37 Massey, supra note 26, at 111 (quoting Augusta Chron., Nov. 23, 1793) (reporting legislative action of Nov. 19, 1793).
38 See Hans v. Louisiana, 134 U.S. 1 (1890).
39 See M'Culloch v. Maryland, 17 U.S. 316 (1819).
40 Id. at 317.
41 Id. at 317–19.
42 Id. at 429 (“The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not. Those powers are not given by the people of a single State. They are given by the people of the United States . . . . [T]he people people of a single State cannot confer a sovereignty which will extend over them.”).
43 Amar, supra note 20, at 1425, 1427, 1460–61.
44 Luther v. Borden, 48 U.S. (7 How.) 1, 42 (1849).
45 Id. at 52.
46 Id. at 52–53.
47 Gordon v. United States, 117 U.S. 697 (1864); Elizabeth Anne Reese, Or to the People: Popular Sovereignty and the Power to Choose a Government, 39 Cardozo L. Rev. 2051, 2069 (2018).
48 Reese, supra note 47, at 2069.
49 Scott v. Sanford (Dred Scott Decision), 60 U.S. (19 How.) 393, 450–52 (1857).
50 Chisholm v. Georgia, 2 U.S. 419, 471–72 (1793) (emphasis added).
51 Dred Scott Decision, 60 U.S. at 411–12.
52 Id.
53 See, e.g., Heather K. Gerken, Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4, 44 (2010).
54
See United States ex rel. Turner v. Williams, 194 U.S. 279 (1904).
55 Id. at 296 (Brewer, J., concurring) (In not so many words, Justice Brewer reasoned, first, that the Constitution grants the federal government certain powers by enumeration or by implication; second, that the Constitution reserves any additional powers to the people; and third, that those can be exercised only by, or upon further grant from “them.”).
56 Id.
57 282 U.S. 716, 730 (1931) (holding Congress may choose the proper procedure for constitutional amendment).
58 Missouri v. Holland, 252 U.S. 416, 433–34 (1920); United States v. Butler, 97 U.S. 1 (1936) (holding that agricultural subsidy coupled with mandated reduction in crop yields exceeded federal power, impinging on powers reserved to states by Tenth Amendment).
59 Holland, 252 U.S. at 433–34.
60 See Lochner v. New York, 198 U.S. 45, 73–74 (1905) (holding New York state law violated “liberty of contract” protected by the Due Process Clause of the Fourteenth Amendment).
61 See Nat’l Lab. Rels. Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding Congress’ exercise of Commerce Power following a period of stiff judicial resistance).
62 See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918) (concluding The Keating-Owen Child Labor Act was outside the Commerce Power and the regulation of production was a power reserved to the states via the Tenth Amendment); see also Steward Mach. Co. v. Davis, 301 U.S. 548, 616 (1937) (Butler, J., dissenting) (asserting that the Social Security Act violated the Tenth Amendment).
63 See United States v. Darby, 312 U.S. 100, 123–24 (1941) (calling Tenth Amendment a mere “truism” which places no substantive limit on Congress’ power); Wickard v. Filburn, 317 U.S. 111, 120 (1942) (holding that restraint on federal power was less a matter of textual interpretation, and more one of politics).
64 Rush, supra note 35, at 1113.
65 Drew Desilver, The Polarized Congress of Today Has Its Roots in the 1970s, Pew Rsch. Ctr. (Mar. 10, 2014), https://www.pewresearch.org/fact-tank/2014/06/12/polarized-politics-in-congress-began-in-the-1970s-and-has-been-getting-worse-ever-since/.
66 Id.
67 Daniel K. Williams, The GOP’s Abortion Strategy: Why Pro-Choice Republicans Became Pro-Life in the 1970s, 23 J. Pol’y Hist. 513, 517 (2011).
68 James Reston, Nixon and Muskie on Abortion, N.Y. Times, Apr. 7, 1971.
69 Williams, supra note 67, at 536 n.13 (citing Richard Nixon, Statement on Abortion (Apr. 3 1971) (on file at Nixon Presidential Library)).
70 See generally Kathleen M. Sullivan, From States' Rights Blues to Blue States' Rights: Federalism After the Rehnquist Court, 75 Fordham L. Rev. 799, 799–800 (2006).
71 Nat’l League of Cities v. Usery, 426 U.S. 833, 835 (1976).
72 Id. at 852.
73 Id. at 868 n.9 (Brennan, J., dissenting).
74 Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 551–52 (1985) (overruling Nat’l League of Cities, 426 U.S. 833).
75 Id. at 559–60 (Powell, J., dissenting).
76 Id. at 574.
77 Id. at 574–76.
78 “Dual sovereignty,” Justice Rehnquist wrote, “is a defining feature of our Nation’s constitutional blueprint. States, upon ratification of the Constitution, did not consent to become mere appendages of the Federal Government. Rather, they entered the Union ‘with their sovereignty intact.’” Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 751 (2002) (quoting Blatchford v. Native Vill. of Nootak, 501 U.S. 775, 779 (1991) (internal citations omitted)).
79 H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 Va. L. Rev. 633–89 (1993).
80 Not to be confused with the doctrine of dual sovereignty, articulated in Heath v. Alabama, 474 U.S. 82, 88 (1985) (holding the Fifth Amendment’s Double Jeopardy Clause does not prevent two separate states’ prosecutors from trying an individual for the same crime, as opposed to state and federal prosecutors trying an individual for the same crime).
81 Fed. Mar. Comm'n, 535 U.S. at 751.
82 Robert Pear, Jury Indicts Hinckley on 13 Counts Based on Shooting of President, N.Y. Times, Aug. 25, 1981, at A17.
83 See Brady Handgun Violence Prevention Act, Pub. L. No. 103–159, 107 Stat. 1536 (codified as amended in scattered sections of 18, 34, and 42 U.S.C.).
84 521 U.S. 898, 933–35 (1997).
85 Id. at 920 (citing The Federalist No. 15, at 109 (Alexander Hamilton) (Clinton Rossiter ed., 1961)); see also New York v. United States, 505 U.S. 144 (1992) (In 1985, Congress amended the Low-Level Radioactive Waste Management Act to offer states financial carrots to encourage disposal of radioactive waste and to force states to take ownership of, and liability for, waste they could not dispose of at dump sites. The state of New York sued the federal government, arguing that regulation of waste management was a power belonging only to states. In New York v. United States, the Court struck down the second provision. Writing for the Court’s majority, Justice O’Connor reasoned that the law would commandeer state governments, and would be inconsistent with the Constitution’s division of authority between federal and state governments.).
86 Murphy v. Nat'l Collegiate Athletic Ass'n, 138 S. Ct. 1461, 1471 (2018).
87 Id. at 1475.
88 Id. at 1484.
89 Sullivan, supra note 70, at 804 (“These sovereign immunity decisions, like the commandeering decisions, derive principally from the tacit structural postulates of the Constitution, not from the literal text of the Eleventh Amendment.”).
90 Hans v. Louisiana, 134 U.S. 1, 13 (1890).
91 Chisolm v. Georgia, 2 U.S. 419, 477 (1793) (opinion of Jay, C.J.).
92 Ex Parte Young, 209 U.S. 123 (1908); Rush, supra note 35, at 1122.
93 James E. Pfander & Jacob P. Wentzel, The Common Law Origins of Ex Parte Young, 72 Stan. L. Rev. 1269, 1287 (2020).
94 Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).
95 Laura M. Herpers, Note, State Sovereign Immunity: Myth or Reality After Seminole Tribe of Florida v. Florida?, 46 Cath. U. L. Rev. 1005, 1016 (1997).
96 Seminole Tribe, 517 U.S. at 51–52.
97 Id. at 54.
98 Id.
99 Rush, supra note 35, at 1123.
100 Alden v. Maine, 527 U.S. 706 (1999).
101 Id.
102 Id. at 713.
103 Id.; Rush, supra note 35, at 1124.
104 Alden, 527 U.S. at 743.
105 Id. at 749.
106 Id. at 714–15, 748–49.
107 See Great N. Life Ins. Co. v. Read, 322 U.S. 47, 51 (1944).
108 Alden, 527 U.S. at 755.
109 Erin Daly, Human Dignity in the Roberts Court: A Story of Inchoate Institutions, Autonomous Individuals, and the Reluctant Recognition of a Right, 37 Ohio N.U. L. Rev. 381, 381 (2011).
110 See Leah M. Litman, Inventing Equal Sovereignty, 114 Mich. L. Rev. 1207, 1256 (2016).
111 Christopher Klein, How Selma’s ‘Bloody Sunday’ Became a Turning Point in the Civil Rights Movement, History (Mar. 6, 2015), https://www.history.com/news/selma-bloody-sunday-attack-civil-rights-movement.
112 The preclearance provision is actually two provisions: (1) one that prohibits eligible districts from enacting changes to their election laws and procedures without obtaining proper prior approval; and (2) another that defines the districts subject to the preclearance provision. For simplicity, the two are collapsed.
113 Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 52 U.S.C. §§ 10302-03 (2008)).
114 Id. at § 4(b).
115 Id. at §§ 4(a), 4(b).
116 Shelby Cnty. v. Holder, 570 U.S. 529, 535, 540, 549 (2013).
117 Litman, supra note 110, at 1261.
118 Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 52 U.S.C. § 10301 (2008) (“To enforce the fifteenth amendment to the Constitution of the United States, and for other purposes.”)).
119
Milestone Documents, Nat’l Archives, https://www.archives.gov/milestone-documents/list (last visited June 4, 2022).
120 Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (2019).
121 Id.
122 Litman, supra note 110, at 1255 (citing Citizen of Iowa, Reconstruction of the Union: Suggestions to the People of the North on a Reconstruction of the Union 11 (1863)).
123 Litman, supra note 110, at 1254 (citing Eric Foner, Reconstruction: America’s Unfinished Revolution 1863–1877, at 194 (1988)) (quoting Journal of the Proceedings and Debates in the Constitutional Convention of the State of Mississippi, August 1865, at 165 (1865)).
124 Shelby Cnty. v. Holder, 570 U.S. 529, 556–57 (2013).
125 Litman, supra note 110, at 1264; see, e.g., City of Boerne v. Flores, 521 U.S. 507 (1997).
126 Litman, supra note 110, at 1264.
127 See United States v. Lousiana, 363 U.S. 1, 16 (1960).
128 Shelby Cnty., 570 U.S. at 586 (Ginsburg, J., dissenting); Litman, supra note 110, at 1217.
129 Litman, supra note 110, at 1214.
130 Shelby Cnty., 570 U.S. at 529, 544–47, 551, 554; Litman, supra note 110, at 1214 n.40.
131 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803).
132 Erin Daly, The New Liberty, 11 Widener L. Rev. 221 (2005).
133 See Peter L. Berger, Heretical Imperative: Contemporary Possibilities of Religious Affirmation (1980).
134 Daly, supra note 132, at 223.
135 Laurence H. Tribe, Equal Dignity: Speaking Its Name, 129 Harv. L. Rev. F. 16, 21 (2015). Political Reconstruction concluded with the presidential election of 1876, when Republican and Southern Democrat party bosses struck a corrupt bargain to hand victory to the Republican Hayes in exchange for the removal of federal troops from the South. So ended military and political Reconstruction. Legal Reconstruction followed when the Court decided the Slaughter-House Cases, a series of cases whose combined consequence was to circumscribe the Privileges or Immunities Clause into hapless oblivion. Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1870); Tribe, supra.
136
Foner, supra note 120, at 56.
137 See, e.g., Lochner v. New York, 198 U.S. 45, 53, 56, 64 (1905) (holding New York state law violated “liberty of contract” protected by the Due Process Clause of the Fourteenth Amendment).
138 See, e.g., Buchanan v. Warley, 245 U.S. 60, 81–82 (1917) (striking down statute barring property owner from conveying property to individual of another race).
139 Among his achievements on the bench, Justice Taney not only was the first to link explicitly Popular Sovereignty with the Tenth Amendment, he was also among the first to describe a substantive Due Process. Recall Justice Taney’s conclusion in Dred Scott: that the Missouri Compromise, which granted freedom to enslaved persons in federal territory, deprived their former enslavers of property and so of Due Process. Dred Scott Decision, 60 U.S. 393, 452 (1857). In Justice Taney’s view, the heart of the matter was neither that the enslavers were deprived of notice or an opportunity to be heard, that is, of process, nor that these enslavers owned enslaved Black people in the first place. Id. at 450; Daly, supra note 132, at 224 n.18. In Justice Taney’s view, the problem was substance, that the Missouri Compromise took property away from its owners (i.e., enslavers). Dred Scott Decision, 60 U.S. at 452. As another Court explained in Hurtado v. California: written constitutions and Due Process Clauses are not bound by “ancient customary English law, [but instead] they must be held to guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty, and property.” 110 U.S. 516, 532 (1884). Perhaps mindful of the stigma that history’s judgment would rightly attach to Justice Taney for his vicious logic, neither Hurtado, nor subsequent substantive Due Process cases so much as mention Dred Scott. Daly, supra note 132, at 224 n.18.
140 Daly, supra note 132, at 226.
141 Id.; Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
142 See Adam Cohen, Imbiciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck (2016).
143 Buck v. Bell, 274 U.S. 200, 205 (1927).
144 Griswold v. Connecticut, 381 U.S. 479, 480 (1965).
145 Erwin Chemerinsky & Michele Goodwin, Abortion: A Woman’s Private Choice, 95 Tex. L. Rev. 1189, 1201 (2017).
146 Griswold, 381 U.S. at 495–96 (Goldberg, J., concurring).
147 See id. at 500 (Harlan, J., concurring); id. at 485 (majority opinion).
148 Id. at 483-84 (majority opinion)..
149 Id. at 479 (”We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”).
150 Id. at 485–86.
151 Chemerinsky & Goodwin, supra note 145, at 1203.
152 Eisenstadt v. Baird 405 U.S. 438 (1972).
153 Id. at 453.
154 Lawrence v. Texas, supra note 11, at 1939.
155 Roe v. Wade, 401 U.S. 113, 119 (1973).
156 Id. at 113.
157 Id. at 164.
158 Id. at 152–53.
159 Id. at 153. Although the Fourteenth Amendment’s Equal Protection rationale was not invoked, Justice Blackmun expressed concern that a prohibition of abortions would exalt the blessings, but overlook the burdens birth bestows on women: “Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also distress, for all concerned, associated with the unwanted child . . . . ” Id.
160 Id. at 158.
161 Chemerinsky & Goodwin, supra note 145, at 1204–05 nn.98–100.
162 Roe, 401 U.S. at 155, 162.
163 Id. at 163–64.
164 Id.
165 Id.
166 Id. at 164–65.
167 Williams, supra note 67, at 534.
168 Ruth Bader Ginsburg, Madison Lecture, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185, 1198–1209 (1992). This critique of Roe cites as evidence the reaction that it sparked: how it gave shape to, and galvanized the Religious Right, how President Reagan rode on those coattails to the White House, and how a nominee’s position on Roe could make or break a nominee’s prospects for Senate confirmation to the Supreme Court. Williams, supra note 67, at 513, 533; Jack Balkin, What Roe v. Wade Should Have Said 7 (2005). Yet there was no discernible trend towards state governments’ protecting abortion rights before Roe. Chemerinsky & Goodwin, supra note 145, at 1210 (citing Linda Greenhouse & Reva B. Siegel, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling 259–62 (2010)). It is equally plausible that the supposed reactions to Roe originated instead with Ronald Reagan’s 1980 presidential campaign strategy: uniting and mobilizing evangelical Christians together with opponents of an Equal Rights Amendment. Balkin, supra, at 12; Chemerinsky & Goodwin, supra note 145, at 1210 n.153.
169 Justice Blackmun marked a fetus’ viability as the moment life began, and so when states could prohibit abortions, except when necessary to protect a woman’s life or health. Chemerinsky & Goodwin, supra note 145, at 1211. The choice was deeply problematic, as it cut against the right Roe purported to protect by pitting advances in medicine against a woman’s right to choose.
170 Roe, 410 U.S. at 159.
171 Roe failed to identify the ways in which laws restricting abortions are discriminatory in a number of ways. For example, the Court took for granted that restrictive abortion laws affect men and women the same, and that such laws affect women of all cultural or ethnic affiliation, and social and economic strata the same. Chemerinsky & Goodwin, supra note 145, at 1211–12. There is a distinct air of unreality to these assumptions. In setting his decision in Roe apart from Justice Douglas’ in Griswold, Justice Blackmun chose to found Roe’s right on the Fourteenth Amendment’s Due Process Clause, omitting discussion of that same Amendment’s Equal Protection Clause. Criticism of Justice Blackmun’s omission of any meaningful argument under Equal Protection Clause should not be dismissed as unfairly holding history’s characters to contemporary standards, or improperly projecting present values onto the past. Briefs submitted to the Court ahead of Roe argued that restrictive abortion laws imposed stereotypical understandings of a woman’s role in society as procreator on women, that such laws coerce motherhood. Balkin, supra note 168, at 19 (citing Greenhouse & Siegel, supra note 168, at 63).
172 Greene, supra note 11, at 30, 70–71, 86.
173 Jeremy Waldron, Pildes on Dworkin’s Theory of Rights, 29 J. Legal Stud. 301, 301, 305 (2000).
174 Justice Harry A. Blackmun, Draft Opinion of Roe v. Wade 48 (Nov. 21, 1972) (Blackmun Papers, Box 151, Folder 6), https://hdl.loc.gov/loc.mss/eadmss.ms003030; Balkin, supra note 168, at 10.
175 Balkin, supra note 168, at 10.
176 Roe v. Wade, 401 U.S. 113, 157-68 (1973).
177 Greene, supra note 11, at 50.
178 Justice Blackmun studied math as an undergraduate. Justice Blackmun considered medical school but instead chose to go to law school, and he was the Mayo Clinic’s in-house counsel from 1950–1959. To the extent that his experience before ascending to the Court may have justified Justice Blackmun’s faith in the sturdy institutions of arithmetic or medicine to resolve the abortion question, that faith proved misplaced.
179 Thornberg v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 747–49 (1986).
180 Id. at 772.
181 Webster v. Reprod. Health Servs., 492 U.S. 490, 504 (1989).
182 Webster, 492 U.S. at 532 (Scalia, J., concurring in part and concurring in the judgment).
183 Id. at 532; see also Printz v. United States, 521 U.S. 898, 920 (1997) (citing The Federalist No. 15, at 109 (Alexander Hamilton) (Clinton Rossiter ed., 1961)).
184
Webster, 492 U.S. at 519 (White, J., dissenting) (citing Thornburgh, 476 U.S. at 795).
185 Id. at 532–31 (O’Connor, J., concurring in part and concurring in the judgment).
186 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992).
187 Id. at 867 (joint opinion of O’Connor, Kennedy, and Souter, JJ.).
188 Id. at 874, 878. The Court abandoned Justice Blackmun’s trimester framework, and instead split the pregnancy in two at the point of viability. Before viability, the government may not prohibit abortion; after viability, government may prohibit abortion, except when necessary to protect the woman’s life or health. In lieu of a trimester framework, the Casey Court sketched a new “undue burden” test for abortion regulations: a regulation of abortion is invalid only if it places an “undue burden” upon a woman’s access to abortion. The Casey Court upheld the Pennsylvania law’s waiting period provision and prepared speech requirement, but struck down the spousal consent requirement, which the Court concluded imposed an undue burden. Id. at 878.
189 Id. at 878; see Chemerinsky & Goodwin, supra note 145, at 1220.
190 Casey, 505 U.S. at 844.
191 Id. at 851.
192 The origin of Casey’s undue burden test is Justice Kennedy’s earlier decision in Ohio v. Akron Center. See Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502 (1990). There, Kennedy wrote that the “dignity of the family” justified a parental consent requirement because it was reasonable to ensure young women receive guidance and understanding from a parent, and that it did not impose an undue burden. Id.
193 Casey, 505 U.S. at 896; see Thornburgh v. Am. Coll. of Obstreticians and Gynecologists, 476 U.S. 747 (1986). Lawrence v. Texas, supra note 11, at 1927.
194 Casey, 505 U.S. at 951–52 (Rehnquist, J., concurring).
195 Daly, supra note 109, at 410.
196 Chemerinsky & Goodwin, supra note 145, at 1215.
197 Greenhouse & Siegel, supra note 168, at 1740.
198 Casey, 505 U.S. at 916.
199 Daly, supra note 132, at 234.
200 Casey, 505 U.S. at 852; Lawrence v. Texas, supra note 11, at 1927.
201 Poe v. Ullman, 367 U.S. 497 (1961).
202 Id. at 542 (Harlan, J., dissenting).
203 Casey, 505 U.S. at 848–49.
204 Washington v. Glucksberg, 521 U.S. 702 (1997).
205 Id. at 730–31.
206 Id. at 720–21 (internal citations omitted).
207 Kenji Yoshino, A New Birth of Freedon?: Obergefell v. Hodges, 129 Harv. L. Rev. 147, 154 (2015).
208 Glucksberg, 521 U.S. at 721 n.17.
209 Id.
210 Consider his decisions re-defining Popular Sovereignty and re-balancing federalism in states’ favor, and like his declaration in Webster that states’ interest in protecting potential life is as compelling before viability as it is afterward. Webster v. Reprod. Health Servs., 492 U.S. 490, 519 (1989).
211 Glucksberg, 521 U.S. at 728 (emphasis added)(quoting Cruzan v. Mo. Dept. of Health, 497 U.S. 261, 282 (1990)).
212 Id. at 719–20.
213 “True, the Court relied on Justice Harlan’s dissent in Casey, but, as Flores demonstrates, we did not in so doing jettison our established approach.” Id. at 721 n.17.
214 Id.
215 Justice Harlan occupied the bench alongside the likes of Chief Justice Earl Warren, whose Court was responsible for more than its fair share of landmark decisions. One such decision, albeit lesser known, was Bolling v. Sharpe, a companion to the better known Brown v. Board of Education, which held states’ segregation of schools violated the Equal Protection Clause of the Fourteenth Amendment. Bolling v. Sharpe, 347 U.S. 497, 499 (1954); see Brown v. Bd. of Educ., 347 U.S. 483 (1955). For students in Washington D.C., a federal district rather than a state, and so subject to the Fifth Amendment rather than the Fourteenth, Brown offered little—the Fifth Amendment contains no Equal Protection Clause. Enter Bolling. Writing for the majority, Chief Justice Warren wrote: “The Fifth Amendment . . . does not contain an equal protection clause. . . . But the concepts of Equal Protection and Due Process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the laws’ [is narrower than] ‘due process of law’. . . . But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.” Bolling, 347 U.S. at 499.
216 Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 783 (2011) (citing Roe v. Wade, 410 U.S. 113, 173 (1973) (Rehnquist, J., dissenting)).
217 Lawrence v. Texas, supra note 11, at 1927.
218 Michael H. v. Gerald D., 491 U.S. 110, 124 (1989). The Chief Justice wrote: “Our Nation’s history, legal, traditions, and practices thus provide the crucial ‘guideposts for responsible decision-making’…that direct and restrain our exposition of the Due Process Clause.” Glucksberg, 521 U.S. at 721 (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)).
219 Yoshino, supra note 207, at 152; Cass R. Sunstein, Homosexuality and the Constitution, 70 Ind. L.J. 1, 3 (1994); Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. Chi. L. Rev. 1161, 1163 (1988).
220 Yoshino, supra note 207, at 152; Homosexuality and the Constitution, supra note 219, at 3; Sexual Orientation and the Constitution, supra note 219, at 1163.
221 Glasser v. United States, 315 U.S. 60, 89 (1942) (Frankfurter, J., dissenting); Judith Resnik & Julie Chi-hye Suk, Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty, 55 Stan. L. Rev. 1921, 1934 (2003).
222 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); Resnik & Suk, supra note 221, at 1934.
223 Anderson, 19 U.S. at 228. In Anderson v. Dunn, the Court concluded the House of Representatives was so empowered; the Court reasoned that a contrary conclusion would expose the institution to “every indignity.” Id.
224 Resnik & Suk, supra note 221, at 1941 n.113; see also United States v. Fischer, 6 U.S. (2 Cranch) 358, 397 (1805). For example, in Fischer, the Court raised the concern that "[t]his claim of priority on the part of the United States will, it has been said, interfere with the right of the state sovereignties respecting the dignity of debts." Fischer, 6 U.S. at 396–97. As The Federalist No. 30 put it: “How is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institutions—can provide for the security of—advance the prosperity—or support the reputation of the commonwealth?” The Federalist No. 30 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (addressing in general the need for sources of revenue for the federal government).
225 Resnik & Suk, supra note 221, at 1943.
226 Id.
227 Skinner v. Oklahoma, 316 U.S. 535 (1942).
228 Id.
229 Botanical term meaning “following” or “later.” Serotinous species are characterized typically by seeds encased in thick resin that release for germination only upon exposure to extreme heat generated by fire. Many such varieties are patient; they require burning to reproduce and are among the natural worlds’ most wily adapters and hardiest organisms. Fire Ecology, Va. Tech Dendrology, http://dendro.cnre.vt.edu/forsite/valentine/fire_ecology.htm (last visited Apr. 12, 2022).
230 Daly, supra note 109, at 391.
231 McNabb v. United States, 318 U.S. 332, 342–43 (1943); cf. Richard A. Primus, The American Language of Rights 182 (1999) (focusing on the influence of Hannah Arendt on the turn in American political and legal theory to "human dignity"); Resnik & Suk, supra note 221, at 1934 n.73.
232 Korematsu v. United States, 323 U.S. 214 (1944).
233 Id. at 240 (Murphy, J., dissenting).
234 Id.; Daly, supra note 109, at 392–93.
235 Daly, supra note 109, at 395.
236 In re Yamashita, 327 U.S. 1, 26–27 (1946) (Murphy, J., dissenting); Daly, supra note 109, at 394.
237 See In re Yamashita, 327 U.S. at 29 (Murphy, J., dissenting); Daly, supra note 109, at 394.
238 In re Homma, 327 U.S. 759, 759–60 (1946); Daly, supra note 109, at 394.
239 In re Homma, 327 U.S. at 760 (1946); Daly, supra note 109, at 395.
240 “A nation must not perish because, in the natural frenzy of the aftermath of war, it abandoned its central theme of the dignity of the human personality and due process of law.” See In re Homma, 327 U.S. at 761.
241 Daly, supra note 109, at 397.
242 In re Homma, 327 U.S. at 760–61 (1946) (“A nation must not perish because, in the natural frenzy of the aftermath of war, it abandoned its central theme of the dignity of the human personality and due process of law.”); Daly, supra note 109, at 395.
243 Daly, supra note 109, at 397–98; see, e.g., Brinegar v. United States, 338 U.S. 160, 180–81 (1949) (Jackson, J., dissenting).
244 356 U.S. 86, 100 (1958) (“The basic concept underlying the Eighth Amendment,” the Court wrote, is the “dignity of man.”).
245 Lois Shepherd, Dignity and Autonomy After Washington v. Glucksberg: An Essay About Abortion, Death, and Crime, 7 Cornell J.L. & Pub. Pol’y 431, 457 (1998).
246 Poe v. Ullman, 367 U.S. 497, 555 (1961) (Harlan, J., dissenting).
247 543 U.S. 551, 551, 560, 572 (2005).
248 Id. at 551, 578 (quoting Trop, 356 U.S. at 100–01).
249 Shepherd, supra note 245, at 431.
250 See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (finding the right to marry interracially).
251 Erwin Chemerinsky, Washington v. Glucksberg Was Tragically Wrong, 106 Mich. L. Rev. 1501, 1505 (2008); Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897).
252 Lawrence v. Texas, 539 U.S. 558, 562 (2003); Krystyna Blokhina Gilkis, Lawrence v. Texas, Cornell L. Sch., https://www.law.cornell.edu/wex/lawrence_v._texas (Sept. 2018).
253 See Bowers v. Hardwick, 478 U.S. 186 (1986).
254 Id. at 191–92 (internal citations omitted).
255 Yoshino, supra note 207, at 153; see Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).
256 Lawrence, 539 U.S. at 562, 579.
257 Yoshino, supra note 207, at 153; Lawrence, 539 U.S. at 778–79.
258 Lawrence, 539 U.S. at 567.
259 Daly, supra note 132, at 409–10; Lawrence, 539 U.S. at 564.
260 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844–49 (1992).
261 Lawrence, 539 U.S. at 578–79.
262 Id. at 579.
263 Id. at 571.
264 See, e.g., id.
265 Yoshino, supra note 216, at 776.
266 Id., at 777.
267 Straight peoples’ lives were made little better by Lawrence. Id., at 779.
268 More likely than not, the reason is that the Court would have become mired in a doctrinal thicket. Constitutional cases often turn on the level of scrutiny a factual predicate demands. The Court’s precedent to do with Equal Protection and same-sex relations was Romer v. Evans, 517 U.S. 620 (1996). Romer, however, was less than specific about what level of scrutiny it applied—it applied Rational Basis but “with bite”—and therefore left open the question of what level of scrutiny successive Courts ought to apply to the category of sexual orientation. Id. at 640. If the Court applied Romer, i.e., decided Lawrence on Equal Protection grounds, the Court would have been forced to detail the meaning of Rational Basis “with bite.” Yoshino, supra note 207, at 172. From the perspective of an institution for whom discretion means credibility to spar in a pinch, providing excessive detail concedes power–a length to which a majority of Justices were unwilling to go.
269 Romer, 517 U.S. at 620.
270 Lawrence v. Texas, 539 U.S. 558, 574 (2003).
271 Daly, supra note 132, at 236; Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972)) ( “[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate 'the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . . .'").
272 See, e.g., Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 11 (2003) (highlighting the Equal Protection Clause’s anticlassification principles in invalidating Jim Crow-era segregation practices).
273 Id. at 10.
274 Lawrence, 539 U.S. at 575 (“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects,” Justice Kennedy wrote in Lawrence, “and a decision on the latter point advances both interests.”).
275 Daly, supra note 132, at 237; Lawrence, 539 U.S. at 566–67.
276 Daly, supra note 132, at 236.
277 Id.; Lawrence, 538 U.S. at 562.
278 Yoshino, supra note 216, at 779 n.222; Lawrence, 539 U.S. at 567 (“[A]dults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.”); Id. at 574 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (joint opinion of O’Connor, Kennedy, and Souter, JJ.)) (discussing “personal dignity and autonomy”).
279 Daly, supra note 132, at 241.
280 Tribe, supra note 135, at 17.
281 See Obergefell v. Hodges, 576 U.S. 644 (2015).
282 See Brown v. Bd. of Educ., 347 U.S. 483 (1954) (overturning Plessy v. Ferguson, 163 U.S. 537 (1896)) (overturning separate but equal).
283 Heather K. Gerken, Windsor's Mad Genius: The Interlocking Gears of Rights and Structure, 95 B.U. L. Rev. 587, 603 (2015).
284 Id. at 604.
285 Id. at 604\6.
286 See 570 U.S. 744 (2013). In 2007, Edith Windsor and Thea Clara Spyer were married in Toronto, Canada; the state of New York recognized their marriage. In 2009, Spyer died and left her estate to Winsdor. Unlike New York law, federal tax law (DOMA) did not recognize their union, and so Winsdor’s inheritance of Spyer’s estate did not qualify for a federal tax exemption. Windsor challenged DOMA. Id.
287 Id..
288 Erin Daly, Constitutional Comparisons: Emerging Dignity Rights at Home and Abroad, 20 Widener L. Rev. 199, 200–01 (2014).
289 Id. at 200. This piece describes DOMA’s “purpose and effect of disapproval of [same-sex couples seeking marriage].” Windsor, 570 U.S. at 770 (“[DOMA’s] avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter in same-sex marriages . . . .”); Gerken, supra note 283, at 589.
290 Daly, supra note 288, at 201.
291 Windsor, 570 U.S. at 770. He frames the conflict as between state and federal authority, writing that New York’s recognition of same-sex marriage, is doubtless a “proper exercise of its sovereign authority within our federal system . . . .” Id.
292 Id. at 769; Gerken, supra note 283, at 590.
293 Windsor, 570 U.S. at 769; Gerken, supra note 283, at 589.
294 Windsor, 570 U.S. at 768.
295 Id. at 769–71; Gerken, supra note 283, at 590.
296 Windsor, 570 U.S. at 769–70; Gerken, supra note 283, at 609.
297 Gerken, supra note 283, at 590.
298 Windsor, 570 U.S. at 768; Gerken, supra note 283, at 590.
299 Gerken, supra note 283, at 590.
300 Id. at 594.
301 Id. at 590, 600 (emphasis omitted).
302 Id. at 598.
303 Id. at 602.
304 Id. at 610.
305 Daly, supra note 288, at 208; Windsor, 570 U.S. at 772.
306 Gerken, supra note 283, at 607–08.
307 Lawrence v. Texas, 539 U.S. 558, 604–05 (Scalia, J., dissenting); Windsor, 570 U.S. at 799–800 (Scalia, J., dissenting).
308 Gerken, supra note 283, at 594.
309 See Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014); Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014).
310 Rather presciently, see Gerken, supra note 283, at 591.
311 576 U.S. 644, 681 (2015). “Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. The petitioners, 14 same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition. Each District Court ruled in petitioners' favor, but the Sixth Circuit consolidated the cases and reversed.” Id. at 644.
312 Yoshino, supra note 207, at 162; Obergefell, 576 U.S. at 702 (Roberts, C.J., dissenting).
313 Obergefell, 576 U.S. at 681.
314 Yoshino, supra note 207, at 162 n.135 (citing Steven G. Calabresi, Substantive Due Process After Gonzales v. Carhart, 106 Mich. L. Rev. 1517, 1518 (2008)); see, e.g., Pavan v. Smith, 137 S. Ct. 2075 (2017) (reaffirming Obergefell).
315 Tribe, supra note 135, at 17.
316 Yoshino, supra note 207, at 163; Obergefell, 576 U.S. at 664 (“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom . . . and so they entrusted to future generations a charter protecting the right of all person to enjoy liberty as we learn its meaning.”).
317 Yoshino, supra note 207, at 163–64; Obergefell, 576 U.S. at 664 (quoting Poe v. Ullman, 367 U.S. at 497, 542 (1961) (Harlan, J., dissenting)).
318 The four “principles and traditions” are: (1) right to personal choice regarding marriage is inherent in individual autonomy; (2) marital union is unique in its importance to committed individuals; (3) the right to marry safeguards children and families, and so draws meaning from related fundamental rights; and (4) marriage is a keystone of our social order. Yoshino, supra note 207, at 164; Obergefell, 576 U.S. at 663–69.
319 Yoshino, supra note 207, at 167; Ex parte State ex rel. Ala. Pol'y Inst., 200 So.3d 495, 539 (Ala. 2015) (per curiam).
320 Yoshino, supra note 207, at 167; Obergefell, 576 U.S. at 725–26 (Thomas, J., dissenting).
321 Yoshino, supra note 207, at 168; Obergefell, 576 U.S. at 677.
322 Daly, supra note 109, at 410 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)).
323 Yoshino, supra note 207, at 168 (quoting Griswold v. Connecticut, 381 U.S. 479 (1965)).
324 Yoshino, supra note 207, at 164–65; Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).
325 Yoshino, supra note 207, at 165; Obergefell, 576 U.S. at 671 (“Loving did not ask about a ‘right to interracial marriage’; Turner did not ask about a ‘right of inmates to marry’; and Zablocki did not ask about a ‘right of fathers with unpaid child support duties to marry.’”).
326 Yoshino, supra note 207, at 170; Obergefell, 576 U.S. at 696 (Roberts, C.J., dissenting) (quoting Dred Scott Decision, 60 U.S. (19 How.) 393, 621 (1857) (Curtis, J., dissenting)).
327 Lochner v. New York, 198 U.S. 45, 65 (1905).
328 Yoshino, supra note 207, at 174. Yoshino refers to this principle as “antisubordination liberty.” The notion of antisubordination is not Yoshino’s invention; it has been contrasted with another companion notion of anticlassification elsewhere, e.g., Balkin & Siegel, supra note 272, at 9.
329 Balkin & Siegel, supra note 272, at 10.
330 Yoshino, supra note 207, at 173.
331 Obergefell, 576 U.S. at 678.
332 Id. at 677.
333 Tribe, supra note 135, at 25; Obergefell, 576 U.S. at 677 (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)). The theory that expounds “the idea of the Constitution” is drawn from West Virginia State Board of Education v. Barnette. Tribe, supra note 135, at 25–26. In Barnette, the Court held that a school may not force students to recite the Pledge of Allegiance. There is no clause in the Constitution to that effect. Instead, Barnette, like Obergefell, protects rights derived from “the dignity and autonomy of the individual standing against the forces of coerced conformity.” Id. at 26.
334 Yoshino, supra note 207, at 172; Obergefell, 576 U.S. at 672.
335 Tribe, supra note 135, at 26.
336
Id. at 21–22.
337 Obergefell, 576 U.S. at 686 (Roberts, C.J., dissenting).
338 Id. at 671 (majority opinion). As Justice Kennedy wrote, “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.” Id.
339 Id. at 687, 710 (Roberts, C.J., dissenting).
340 Bond v. United States, 564 U.S. 211 (2011).
341 Id. at 220 (who otherwise qualify under Article III’s Standing requirements).
342 Litman, supra note 110, at 1257–58; see Shelby Cnty. v. Holder, 570 U.S. 2612 (2013).
343 Romer v. Evans, 517 U.S. 620 (1996) (quoting U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring)); see also Lawrence v. Texas, 539 U.S. 558, 575 (2003); Litman, supra note 110, at 1257.
344 Shelby Cnty., 570 U.S. at 543–44.
345 Sullivan, supra note 70, at 804 (“These sovereign immunity decisions, like the commandeering decisions, derive principally from the tacit structural postulates of the Constitution, not from the literal text of the Eleventh Amendment.”).
346 Sher, supra note 18, at 609.
347 Alden v. Maine, 527 U.S. 706, 715 (1999).
348 Id.
349 Sher, supra note 18, at 611.
350 Alden, 527 U.S. at 727–29; Sher, supra note 18, at 611.
351 Sher, supra note 18, at 612.
352 Id., at 613; see Ron Chernow, Alexander Hamilton 321 (2004) (summarizing Hamilton's "agenda" as "to strengthen the central government, bolster the executive branch at the expense of the legislature, and subordinate the states").
353 Printz v. United States, 521 U.S. 898, 918–19 (1997).
354 Printz, 521 U.S. at 920–21 (citing The Federalist No. 15, at 109 (Alexander Hamilton) (Clinton Rossiter ed., 1961)).
355 M'Culloch v. Maryland, 17 U.S. 316, 429 (1819) (“The sovereignty of a State extends to [everything] which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not. Those powers are not given by the people of a single State. They are given by the people of the United States . . . the people of a single State cannot confer a sovereignty which will extend over them.”).
356 Printz, 521 U.S. at 921–22 (citing The Federalist No. 51, at 323 (James Madison) (Clinton Rossiter ed., 1961)).
357 Chisholm v. Georgia, 2 U.S. 419, 477, 479 (1793) (opinion of Jay, C.J.).
358 Thomas B. McAffee et al., Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments (2006).
359 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783–84 (1995) (Kennedy, J., concurring). Arkansas’ Term Limit Amendment provided that any person who served three or more terms as a member of the United States House of Representatives or two or more terms as a member Senate from Arkansas would be ineligible for re-election to that same office. Id. at 784.
360 The dissenters were Chief Justice Rehnquist, Justices O’Connor, Thomas, and Scalia. U.S. Term Limits, 514 U.S. at 845 (Thomas, J., dissenting).
361 Kathleen M. Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 Harv. L. Rev. 78, 78–79 (1995).
362 U.S. Term Limits, 514 U.S. at 808.
363
The majority consisted of Justices Stevens, Ginsburg, Souter, Breyer, and Kennedy. Id. at 781.
364 Sullivan, supra note 361, at 79–80.
365 Id. at 89.
366 Id. at 90.
367 Id.
368 Linda Greenhouse, Focus on Federal Power, N.Y. Times, May 24, 1995, at A1;; Sullivan, supra note 361, at 98.
369 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).
370 Carol S. Weissert & Sanford F. Schram, The State of American Federalism, 26 Publius No. 3 (1996).
371 Reese, supra note 47, at 2074–76.
372 Chisholm v. Georgia, 2 U.S. 419, 456 (1793) (opinion of Wilson, J.) (“Upon general principles of right, shall [a state] when summoned to answer the fair demands of its creditor[s], be permitted, proteus-like, to assume a new appearance, and to insult him and justice, by declaring I am a SOVEREIGN State?”).
373 Id. at 461.
374 Id.
375 Massey, supra note 26, at 111.
376 Id.
377 Id.
378 Hans v. Louisiana, 134 U.S. 1 (1890).
379 Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996).
380 Alden v. Maine, 527 U.S. 706 (1999).
381 Seminole Tribe, 517 U.S. at 68–69; Hans, 134 U.S. 1.
382 Massey, supra note 26, at 111.
383 Barnett, supra note 36, 1754–55 (“That no state shall be liable to be made a party defendant, in any of the judicial courts, established, or which shall be established under the authority of the United States, at the suit of any person or persons, whether a citizen or citizens, or a foreigner or foreigners, or of any body politic or corporate, whether within or without the United States . . . .”).
384 Barnett, supra note 36, at 1755.
385 Massey, supra note 26, at 110–11, 113.
386 Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 139 (1810); Barnett, supra note 36, at 1745.
387 Fletcher, 10 U.S. at 139; Barnett, supra note 36, at 1745.
388 Massey, supra note 26, at 111, 113.
389 U.S. Const. amend. X.
390 Reese, supra note 47, at 2082–83.
391 McAffee et al., supra note 358, at 44.
392 Id. at 44 n.121 (quoting Professor Amar).
393 Gary Lawson, A Truism with Attitude: The Tenth Amendment in Constitutional Context, 83 Notre Dame L. Rev. 469, 476 (2008).
394 U.S. Const. art. I, § 8.
395 Lawson, supra note 393, at 479–80.
396 Id. at 480–81.
397 “First, That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Foederal [sic] Government . . . .” Randy E. Barnett, Kurt Lash’s Majoritarian Difficulty: A Response to a Textual-Historical Theory of the Ninth Amendment, 60 Stan. L. Rev. 937, 950–52 (2008).
398 Id. at 952–53.
399 Id. at 951 (citing Saturday, December 12, 1789, in Journal of the Senate of the Commonwealth of Virginia 63 (Richmond, Thomas W. White 1828)).
400 McAffee et al., supra note 358, at 43 (quoting Daniel Carroll, Debates in the House of Representatives (August 22, 1789)).
401 Kurt T. Lash, The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty, and "Expressly" Delegated Power, 83 Notre Dame L. Rev. 1889, 1921 n.125 (2008).
402 See Washington Journal: Friday, C-SPAN, at 2:20:46 (Oct. 25, 1996), https://www.c-span.org/video/?76130-1/washington-journal-friday (Brian Lamb’s interview with Maryland State Archivist Edward Papenfuse).
403 David L. Holmes, The Founding Fathers, Deism, and Christianity, Britannica, https://www.britannica.com/topic/The-Founding-Fathers-Deism-and-Christianity-1272214 (last visited Apr. 26, 2022).
404 Washington Journal: Friday, supra note 402.
406 Troxel v. Granville, 530 U.S. 57, 91–92 (2000) (Scalia, J., dissenting) (eliding “the people” and “the states” and their legislatures).
407 Barnett, supra note 397, at 949 (quoting U.S. Const. art. I, § 2).
408 Id. at 950 (quoting U.S. Const. art. I, § 3).
409 Id.
410 U.S. Const. The Second Amendment protects the right of “the people to keep and bear arms,” if only as part of an organized militia. The Fifth (“[n]o person shall be held to answer . . . without due process of law”) and Sixth Amendments (“the accused”) are similarly worded.
411 U.S. Const. amend. IV.
412 See generally Vikram David Amar, Jury Service as Political Participation Akin to Voting, 80 Cornell L. Rev. 203 (1995).
413 Reese, supra note 47, at 2090 n.202 (citing Kurt Lash, On Federalism, Freedom, and the Founders' View of Retained Rights: A Reply to Randy Barnett, 60 Stan. L. Rev. 969, 971 (2008)).
414 Barnett, supra note 397, at 946.
415 See generally Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 119-33 (2000) (discussing both Ninth and Tenth Amendments).
416 U.S. Const. amend. IX.
417 Reese, supra note 47, at 2089–91 (“It cannot be that the people as individuals retain powers (other than their rights and freedoms from the Ninth Amendment) that are in the same pot of sovereign powers at play in the rest of the Tenth Amendment.”).
418 See, e.g., Lash, supra note 413, at 971–72.
419 Sher, supra note 18, at 602.
420 Chisholm v. Georgia, 2 U.S. 419, 479 (1793) (opinion of Jay, C.J.).
421 Redlich, supra note 11, at 807.
422 Bond v. United States, 564 U.S. 211 (2011).
423 Lawrence v. Texas, supra note 11, at 1927.
424 Yoshino, supra note 207, at 163; see Obergefell v. Hodges, 576 U.S. 644, 664 (2015).
425 Baker v. Carr, 369 U.S. 186, 222 (1962) (defining parameters of non-justiciable questions).
426 Tribe, supra note 136, at 16; Obergefell, 576 U.S. at 676–77 (It is “the idea of the Constitution . . . ‘to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.’” (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)).
427 Lawrence v. Texas, supra note 11, at 1927.
428 Washington v. Glucksberg, 521 U.S. 702, 721 (1997).
429 Obergefell, 576 U.S. at 671.
430 E.g., Vacco v. Quill, 521 U.S. 793, 804–05 (1997) (Chief Justice Rehnquist differentiating between withdrawing treatment and administering drugs to end a person’s life).
431 “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” U.S. Const. amend. X.
432 Lawrence v. Texas, supra note 11, at 1927 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 852 (1992)).
433 Thornburgh v. Am. Coll. of Obstreticians and Gynecologists, 476 U.S. 747, 772 (1986).
434 Greenhouse & Siegel, supra note 168, at 1740 (quoting Casey, 505 U.S. at 851).
435 Id.
436 Casey, 505 U.S. at 916.
437 Screws v. United States, 325 U.S. 91, 134–35 (Murphy, J., dissenting); Daly, supra note 109, at 393.
438 Compassion in Dying v. Washington, 79 F.3d 790, 839 (9th Cir. 1996) (en banc), rev'd sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997) (citation omitted).
439 Lawrence v. Texas, supra note 11, at 1898.
440 Litman, supra note 110, at 1214 n.40 (citing Shelby Cnty. v. Holder, 570 U.S. 2612, 2618, 2624–26, 2628, 2630 (2013)).
441 Shelby Cnty., 570 U.S. at 2630.
442 Id. at 2631.
443 See Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 N.Y.U. J.L. & Liberty 581, 585, 614 (2010).
444 See Chemerinsky, supra note 251, at 1501–16.
445 Sher, supra note 18, at 594–605.
446 See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 916 (1992).
447 Great N. Life Ins. Co. v. Read, 322 U.S. 47, 51 (1944).
448 See Murphy v. Nat'l Collegiate Athletic Ass'n, 138 S. Ct. 1461, 1471 (2018).
449 Litman, supra note 110, at 1220–21.
450 Id. at 1217 (citing Shelby Cnty. v. Holder, 570 U.S. 2612, 2648 (2013) (Ginsburg, J., dissenting)).
451 For example, click-wrap agreements, digital prompts that ask whether you agree to, or accept terms and conditions, before you can do whatever it is you intend to do, ask whether we want to waive rights—and we do.
452 The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence, supra note 11, at 333.
453 New York v. United States, 505 U.S. 144, 182 (1992).
454 See, e.g., Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919 (1983); Myers v. United States, 272 U.S. 52 (1926).
455 Boumediene v. Bush, 533 U.S. 723, 742 (2008).
456 The Declaration of Independence para. 2 (U.S. 1776).
457 Id.
458 Barnett, supra note 36, at 1758.
459 Thomas Paine, Common Sense (1776), https://www.gutenberg.org/files/147/147-h/147-h.htm.
460 The Declaration of Independence para. 1 (U.S. 1776).
461 U.S. Const. pmbl.
462 Gaddis, supra note 4, at 311 n.43; Isaiah Berlin, Two Concepts of Liberty, in The Proper Study of Mankind 191–242 (Henry Hardy & Roger Hausheer eds., 1997).
463 Isaiah Berlin, The Hedgehog and the Fox 88–90 (1953).
464 Gaddis, supra note 4, at 109.