Coming from a country without a bill of rights, I was eager to experience its benefits and come to understand its operation, especially the ways judges place limits on rights and on their own powers. Countries like Canada and South Africa, which have only recently constitutionalized a bill of rights, have set down a catalogue of rights but then expressly conceded the power of the elected legislators to limit the exercise of those rights in a manner that is reasonable and justifiable in an open and democratic society based on freedom and equality. To lawyers in the United States, these words of qualification seem to take away with one hand what was given with the other. The courts of these other countries, of course, have always looked to U.S. jurisprudence for guidance in the interpretation of key rights and their limits. American judges rarely look elsewhere.
Though the U.S. Constitution does not contain any similar words of permissive limitation on the rights and liberties set down, the Supreme Court has long accepted that the ban on deprivation of life, liberty or property without due process requires the judges to strike a balance between individual liberty and the demands of organized society. They say the balance is struck by honoring the traditions from which the country developed as well as the traditions from which it broke. This has meant that elected legislators have not had the last say in striking the balance. It has instead been the prerogative of unelected judges, who are free to determine the relative weight of entrenched and broken traditions in defining the national ethos, once they have been chosen by a President and run the gauntlet of Senate confirmation hearings. But what is weighed on the other side of the balance to individual liberty? Political liberalism in contemporary America dictates that there can be no thick notion of the good. There can be no agreement on the common good. The public interest, it often seems, is a figment of the collectivist imagination.
Weighing a Thin Public Good – in Practice.
What then are the demands of organized society? How does the Supreme Court determine the values of a society that has both maintained and broken traditions throughout its history? There is never any evidence of these historic traditions that can be put before the court, but only bold assertions. For example, when the Court was reconsidering Roe v. Wade four years ago, the attorney for Planned Parenthood said the judges had to “look very generally at whether the nation’s history and tradition has respected interests of bodily integrity and autonomy and whether there has been a tradition of respect of equality of women.” The attorney insisted that guidance in determining the scope of liberty was not to be obtained by looking at whether or not abortion was lawful at the time of the adoption of the 14th Amendment.
In trying to weigh the balance without articulating what is on the other scale of the balance, judges have tried to convert questions of substantive content into questions of judicial procedure using content-neutral categories or, worse, indeterminate value judgments. It all depends on whether the right in question is “fundamental” or whether the petitioner is from a “suspect class” (for example, a classification based on race). In redistricting cases, the courts are now required to scrutinize computer-drawn, octopus-shaped electoral boundaries to see whether in constructing minority-majority electorates the state has drawn the boundaries with their “customary districting principles.” In one recent case the bench, puzzling over how the boundaries became so contorted, was reminded by counsel: “You must remember that politics is a contact sport.” So it has always customarily been.
In scrutinising the abortion codes of the various states, the Court now attempts to determine if the law places an “undue burden” on the woman making her decision. There is no agreement among the Justices as to what constitutes an undue burden. When Justice Blackmun, the author of Roe v. Wade, said, “Roe’s requirement of strict scrutiny as implemented through a trimester framework should not be disturbed,” he lost out. The plurality of Justices O’Connor, Kennedy and Souter – whose thinking determines the outcome of any split decision on the present court – insisted: “The trimester framework no doubt was erected to ensure that the woman’s right to choose not become so subordinate to the State’s interest in promoting fetal life that her choice exists in theory but not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective.” No wonder the conservatives on the court, led by Chief Justice Rehnquist, responded, “Roe continues to exist, but only in the way a store front on a western movie set exists: a mere facade to give the illusion of reality.”
The deeper illusion is that the U.S. Supreme Court can strike a balance between the woman’s right to choose and the state’s interest in promoting fetal life. The criterion of “undue burden” masks one of two things: either a political decision or the personal preference of the individual judge. In Planned Parenthood v. Casey (1992), the middle votes of the present Court sought to consolidate the Court’s task by inviting “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” And this in a country that remains the most politically polarized over abortion of any country in the world! As a foreigner privileged to sit and watch the Court in action over some months, I have no doubt this was not judicial conceit; it was a humble, failed attempt to discharge a mandate that can never be performed by unelected persons in a pluralistic, democratic society. Whatever the rights and wrongs of abortion may be, its legally permissible limits have been further politicized and rendered unresolvable in the United States precisely because the issue has been made a constitutional one.
Commencing his epic decision in Roe v. Wade, Justice Blackmun said, “Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and predilection.” The spectacular failure of this effort is found in Justice Blackmun’s last judicial utterance on the matter two decades later: “A woman’s right to reproductive choice is one of those fundamental liberties. Accordingly that liberty need not seek refuge at the ballot box…. I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process of my successor well may focus on the issue before us today.” There is more than a dose of emotion and predilection in all that. The limits of the fundamental liberty depend not on the ballot box directly but on the view of the judge chosen and confirmed by those who do face the ballot box.
The Fallacy of Constitutionalizing an Issue.
It is a bold step to assume that by constitutionalizing an issue, everyone gains: the judges by becoming more important to the national life, the legislators by being able to sidestep the hard decisions, the unpopular and powerless by making gains across the board nationally that could not be achieved locally, and the citizenry generally by being assured that there is a sphere of personal conduct immune to invasion by the state. But there are other ways that can be less costly for all parties. And when the issue affects all, it may be an overly one-dimensional view of the human person to portray the issue as a conflict between the individual David and the Goliath state.
The most prominent case this last term has been the gay rights case from Colorado, Romer v. Evans. After three cities in Colorado enacted policies outlawing discrimination against gays, a statewide referendum was carried in the name of putting an end to special rights for special groups. The legal problem was that the citizen-initiated referendum inserted a very broad provision into the state constitution banning any branch of government from adopting a policy whereby sexual orientation could be the basis for a claim of discrimination. If gays were a “suspect class” or if “fundanmental rights” were in question, the Court would apply “strict scrutiny” to the state law, which inevitably has fatal consequences for such law. Colorado argued that gays are not a suspect class and therefore the state need only show that there is a rational basis for the law, such as maintaining uniform statewide laws for the protection of marriage or for discouraging homosexual activity. The gay rights groups argued that the issue was not one of special rights or special protection, but the right of every person to be free of arbitrary discrimination. Justice Scalia, in argument, put it as a case of reversing special laws that gave favored treatment to those engaging in homosexual activity.
Given that the Supreme Court in the 1986 case Bowers v. Hardwick decided that the state could criminalize homosexual activity conducted in private by consenting adults, Justice Scalia asked, “Why can a State not take a step short of that and say, We’re not going to make it criminal, but on the other hand, we certainly don’t want to encourage it, and therefore we will neither have a State law giving special protection, nor will we allow any municipalities to give it special protection’?” Counsel was asked specifically, “Are you asking us to overrule Bowers v. Hardwick?” She replied, “No, I am not.” This shows just how fickle is the present law of privacy in the United States: A woman exercising her right to privacy can abort a fetus in which the state has an interest, but homosexuals engaged consensually in private sexual behavior have no similar right to privacy. And in the first gay rights case before the Supreme Court in 10 years, the Court, even when it asks, is not being invited to extend the right to privacy to gays by overruling Bowers v. Hardwick.
The majority in that case once again constitutionalized the issue with breathtaking particularity: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” They found there is “in constitutional terms, no such thing as a fundamental right to commit homosexual sodomy.” There is a constitutional right to abortion but not to consensual sodomy. In his strong dissent Justice Blackmun said the Court had refused to recognize “the fundamental interest all individuals have in controlling the nature of their intimate associations with others.” For him, the Constitution has sheltered certain rights associated with family “not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life.”
The Supreme Court doesn’t know which way to turn in these controverted matters. Consider another case: In 1992 Senator Jesse Helms introduced at the last minute an amendment to the Cable Television Consumer Protection and Competition Act aimed at restricting the amount of indecent material carried on leased access channels and public access channels. The cable operators were required to ban or block indecent material, which could then be unscrambled only on written request from the consumer. In February the Supreme Court heard argument against the law. The free speech petitioners argued that the Government’s calculus ignored the crucial right of adult cable viewers to have access to a variety of ideas and experiences.
As for the protection of children, the petitioners claimed that the decision should lie with parents and not with government. They claimed strong, uncontroverted evidence that lock boxes offer the cable subscriber an easy method of avoiding unwanted programming. The choice being between the state and parents barring child access, the argument was that free speech could be protected by leaving the decision to the parents. The Justices questioned whether they could presume there was some parental inertia in this regard or whether they would require evidence of a lack of parental supervision. The next day the Montgomery County District Court heard evidence of an 11-year-old boy raping a 5-year-old girl. He had learned about having sex from watching the porno cable channel in his parents’ home. But in the United States the parents of both children will be guaranteed the right to watch what they want.
Judicial Gridlock vs. Legislative Responsibility.
Throughout the Court’s jurisprudence, as it has developed within this straitjacket of individual rights, is the notion that the person belongs only to himself and not to others or to society as a whole. By constitutionalizing individual rights and declining to qualify such rights in the interests of others, the United States has left the balancing of rights and interests increasingly to judges – while the judges have developed techniques to avoid balancing anything. It is a sustained gridlock. If a right is fundamental or if the law affects a suspect class, the individual’s claim is trump. But how does a judge determine if a right is fundamental or if the person is a member of a suspect class? There is no definitive test. It is a matter of judicial preference.
Women have the fundamental right to make the ultimate pregnancy before viability. Homosexuals do not have the fundamental right to conduct intimate relationships in the privacy of their own homes. If it ever comes to balancing competing rights or interests, the best the Supreme Court has been able to do is to ask whether an undue burden or substantial obstacle has been placed in the way of the individual. Having constitutionalized the questions, the Court has failed to provide a judicial method for balancing the incommensurable interests of the citizen as an independent individual and the citizen as a member of a society, each contributing well or adversely to the life of the other and to the common good.
There can be no getting away from a balancing of interests. Who best to do the weighing, the legislators elected by all or the judges nominated by Abe few? If I felt the United States was the freest possible place to live in, I would hold my peace. But here, freedom and security depend very much on individual initiative and personal wealth. I fear the Bill of Rights ethos not only quashes any sustained public discussion of the common good. It also inculcates the notion that rights are protected not because they contribute to the general public welfare but only “because they form so central a part of an individual’s life,” as Justice Blackmun put it.
One Australian state has also retained anti-sodomy laws. Though it has no bill of rights, Australia is a signatory to the First Optional Protocol of the International Covenant on Civil and Political Rights, which permits citizens who have exhausted all domestic remedies to communicate with the Human Rights Committee of the United Nations in Geneva. In 1994 the committee found that the prohibition by law of consensual homosexual acts in private was a violation of the right to privacy in the international covenant. The covenant says, “No one shall be subjected to arbitrary or unlawful interference with his privacy” and “Everyone has a right to the protection of law against such interference.” Responding to the committee’s finding, the Australian Federal Parliament passed a law that sexual conduct involving only consenting adults in private is not to be subject to any arbitrary interference with privacy. So homosexuals in Australia are guaranteed their privacy without judges having to constitutionalize the question. Politicians can weigh notions of individual liberties and public welfare and strike a balance. Judges are on thin ice when they try. In the United States, they are required to try very often.
Over time the American Bill of Rights has probably given politicians greater license to pass the buck to the Justices. It has allowed the legislative process to be more loose and inconsistent. Politicians can pass laws for the public display of the Ten Commandments knowing they will be struck down. They can wildly promise to ban abortion even in cases of rape, knowing that the courts will not permit it. Meanwhile they have satisfied their more fundamentalist constituents.
I return to Australia without any passionate desire to see the complex issues of die day constitutionalized, taken out of the hands of politicians and reserved to judges who will go to great lengths in judicial reasoning to avoid simply having to apply their own values in weighing the conflicting claims. I am delighted that the United States has a robust tradition for debating the issues from an individual rights perspective. In Australia, we do not have capital punishment. We do not interfere with the privacy of gays. We accord much the same level of protection to the fetus and the woman’s choice. We do not have judges as the final arbiters of abortion codes and redistricting maps. We allow government to restrict indecent material on television, and I do not lose too much sleep over that.
When under greatest pressure, the U.S. system, as Justice Blackmun admits, depends on just one vote. So too in Australia – only there the person with the one vote is elected and voting is compulsory. As ever, I will continue to look to the U.S. Supreme Court for a jurisprudence of individual rights. Your system can correct those of us with a parliamentary system that places more trust and accountability in the elected lawmakers who have to face all the people who come to the polling booth not just to exercise their right, but to perform their lawful duty. Vive la difference. Thank you, America, for the chance to learn from a different tradition in which the results are so often the same, reached by different routes. Your robust ideas on rights and freedom are an antidote to our populist notions of equality and the common good, all of which are needed for the healthy enjoyment of liberty in an organized society.