Is the Fundamental Rights Test Bullshit?

In his 1986 essay "On Bullshit," philosopher Harry Frankfurt argued that the term applies first and foremost to expression that is insufficiently concerned with the truth (and is thereby different from lying which often requires the speaker to know the truth in order to be deceptive about it). My prior post on judicial bullshit sparked a rather lively comments section. Here are some follow-up thoughts: 

• Frankfurt speaks about bullshit as something that a single speaker utters. In the context of courts, however, especially at the Supreme Court, pertinent communication will typically concern language written, edited, or endorsed by multiple people, including fellow judges and judicial clerks. Frankfurt gives us little guidance about how to think about the topic of multi-author bullshit. Presumably, the same words can be both bullshit and non-bullshit depending on the concern for truth evinced by a particular author.
• Frankfurt's approach appears to be at least partly subjective. Merely demonstrating insufficient concern for the truth doesn't seem to be enough. For example, we would not likely deem it bullshit if a judge writing about some precedent is objectively insufficiently concerned with the truth provided the judge earnestly sought to comment accurately on the precedent but was simply too tired to give it the attention it required. For bullshit, one must also have some sort of attitude of insufficient respect for the truth that I don't think Frankfurt clearly describes.
• For many reasons, including the two points above, we will rarely know for sure that some judicial use of language constitutes bullshit. This does make the topic somewhat speculative. But if the phenomenon we're interested in is speculative, there's not much we can do about it. For example, if a scholar were examining alleged instances of judicial lies in opinions, especially when such lies refer to characterizations of the law, it would likely also require quite a bit of speculation. But it may still be a phenomenon of interest.
• From the perspective of practicing lawyers, identifying lies/bullshit may not be especially helpful because they will still have to make arguments with the cases "as presented." Topics such as lying/bullshit might be more relevant when we talk about things like what it means to be a good judge or how judges are supposed to balance rule of law interests with policy or personal preferences. Also, scholars and journalists sometimes cite or quote what seems like judicial bullshit without recognizing it as such. Better identifying bullshit and its uses might put scholars, lawyers, and journalists a little more on guard.

After the jump, I offer an adapted excerpt from my recent paper Supreme Judicial Bullshit (50 Arizona State Law Journal 141) that asks whether the famous test of fundamental rights (as stated in Glucksberg) could be characterized as bullshit.

One reason courts bullshit is to maintain flexibility. Clear, firm statements of the law limit courts’ discretion. The motivation to maximize flexibility seems particularly apparent when the Supreme Court considers what qualifies as a fundamental right protected by substantive due process under the Constitution. It’s very difficult to determine, perhaps partly by design, exactly which rights will be deemed fundamental and which will not. 

Example: Washington v. Glucksberg

In Washington v. Glucksberg, respondents claimed that we have a fundamental right to physician aid-in-dying.[1] The Supreme Court offered the following test of whether a right to physician aid-in-dying—and any other right—is protected by Fifth and Fourteenth Amendment substantive due process:

Bullshit Candidate: [T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”[2]

The passage speaks of “rights and liberties.” In many contexts, and as seems to be the case here, these words are used synonymously.[3] Certainly nothing in the opinion suggests otherwise. So, skipping some intervening words, we learn one requirement for a liberty to be protected by substantive due process is that the liberty must be “implicit in the concept of ordered liberty.”

At this point, our bullshit detectors are firing warning signals. On a quick read, at least, this requirement seems circular, using the word “liberty” to define itself. But the term “ordered” is used to qualify “liberty.” One dictionary defines “ordered liberty” as “freedom limited by the need for order in society.”[4] The notion of “ordered liberty” seems to imply that not all liberty is good or in need of promotion. Some liberty limitations are necessary for the general good. So perhaps the Court narrowly avoids circularity by distinguishing liberty from ordered liberty.

Unfortunately, the Court’s meaning is still muddled. The Court instructs us that it is not enough for some liberty in dispute to be an “ordered liberty.” Rather, it has to be a liberty implicit in the concept of ordered liberty. Hence the Court’s test requires us to know which liberties are implicit in the concept of liberties-consistent-with-a-free-but-responsible society.

I doubt that any particular liberty is implicit in the concept of ordered liberty. Suppose I told you to bring any bread for lunch that is implicit in the concept of healthy bread. Would whole wheat bread satisfy the request? I don’t think so. While whole wheat bread might be a kind of healthy bread, nothing about whole wheat is implicit in the concept of healthy bread. If, for example, the medical community univocally determined that whole wheat is unhealthy, we’d still have a concept of what healthy bread is; it simply wouldn’t include whole wheat bread in the category. If whole wheat bread is a healthy bread, it is a contingent nutritional fact, not something implicit in the concept of healthy bread.[5] And just as no particular bread is implicit in the concept of healthy bread, there is quite possibly no particular liberty implicit in the concept of ordered liberty. We can understand the concept of ordered liberty without referring to any particular liberty.[6]

So far, it seems, the candidate passage is arguably insufficiently concerned with truth: the authors offered a possibly empty description of liberty by failing to explain how an “ordered” liberty differs from any other and then added a confusing, seemingly unnecessary implicit-in-a-concept requirement.

More troubling, though, than the discussion of ordered liberty is the further requirement that rights protected by substantive due process be so fundamental that “neither liberty nor justice would exist if they were sacrificed.” This non-existence requirement is absurdly overdemanding. It’s one thing to say that there are no fundamental rights and no such thing as substantive due process. That would shift current law dramatically, but its meaning would be straightforward. The Court opts instead for the bullshit approach, laying out a path to declaring a fundamental right that is so implausible that it’s hard to believe the authors of the passage cared about its truth.

As important as our fundamental right to use contraceptives is, for example, one cannot believe that liberty and justice would not exist without it. Surely liberty and justice existed in this country prior to the Court’s decision in Griswold v. Connecticut,[7] even if our liberty was more constrained than it ought to have been. Requiring that liberty and justice be incapable of existing to anoint something a fundamental right sets the bar preposterously high. And the bullshit can have consequences. For example, the high bar in Glucksberg was noted in dissent from the view that same-sex marriage is constitutionally protected.[8]

When the Court grants the next fundamental right, it will likely do so in a case where a person was deemed by a lower court to lack the right at issue. That future Supreme Court will implicitly say that liberty and justice did not exist before the Court deemed the litigant’s right fundamental. Hence, we will apparently taste no liberty nor justice until the Court has identified the last fundamental right that someone has been deprived of. One wonders why we’re fighting so quixotically for liberty and justice when the Court implies that they have been and may always be unattainable.

The fundamental rights test in Glucksberg is derived from Justice Benjamin Cardozo’s decision in Palko v. Connecticut.[9] In the relevant portion of Palko, Cardozo explained how to determine whether a right against the federal government under Fifth Amendment due process is also a right against state governments under the Fourteenth Amendment.[10] Cardozo argued that “freedom of thought and speech”[11] certainly qualifies; rights to think and to express ourselves are so fundamental that “neither liberty nor justice would exist if they were sacrificed.”[12] While Cardozo did indeed pick out an important right, it seems doubtful that the absence of the right obliterates all liberty and justice. We can identify instances of liberty and justice even in, say, countries that sharply limit freedom of thought and expression.

Cardozo seemed to recognize the hyperbolic nature of his test for, just a bit later, he describes freedom of thought and expression as “the matrix, the indispensable condition, of nearly every other form of freedom.”[13] In other words, he has already toned down the test from the candidate passage by saying not that liberty would not exist without freedom of thought and expression, but only that nearly every form of liberty would not exist. If liberty and justice really would not exist without freedom of thought and expression, Cardozo wouldn’t need the “nearly” qualification.

The main problem, of course, is that Cardozo and others are focusing on the existence of liberty and justice rather than their quantities.[14] Amounts of liberty and justice spread across a spectrum. The more we restrict liberty, the less liberty we have. But the test of whether anything is a fundamental liberty cannot be whether or not its loss would eviscerate all other liberties.

Maybe the Court in Glucksberg was saying that if we had no fundamental liberties at all, liberty and justice would not exist. I doubt this is a true statement about the nature of liberty and justice, but even if it were, it’s hard to understand the sort of test the Court would have established. Would we determine if something is a fundamental right by asking whether liberty and justice would still exist if we retained the right at issue but lost all other fundamental rights? To determine if we have a right to physician-assisted suicide, would we ask whether liberty and justice would still exist if we lost all other fundamental rights but retained the right to physician-assisted suicide? That would be a strange test indeed. The candidate statement would be bullshit for making it seem like it gave us a real test when no such thing was actually offered. More importantly, this does not appear to be the test the Court had in mind. Indeed, in Palko, the Court seemed to apply the fundamental rights test to freedom of thought and speech as a single right without considering all other fundamental rights that have or ever will be recognized.

To be sure, few issues rile people up as much as substantive due process. For this reason, the field is a bullshit magnet, as the Court is reluctant to speak precisely on such a controversial and potentially alienating topic. Thus, we are left with assertions about substantive due process that are practically incomprehensible. Even Cardozo, as I showed, didn’t take his own test seriously, qualifying it almost immediately.

 

      [1].      Washington v. Glucksberg, 521 U.S. 702, 708 (1997).

      [2].      Id. at 720–21 (citations omitted).

      [3].      See, e.g., Mark Tushnet, Three Essays on Proportionality Doctrine 3 (Harvard Pub. Law Working Paper No. 16-43, 2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2818860 (stating that “in many contexts the terms [‘right’ and ‘liberty’] are interchangeable”).

      [4].      Merriam-Webster’s Dictionary of Law 344 (1996).

      [5].      Stating what is implicit in the concept of healthy bread is no easy task. The concept of healthy bread might include notions of tasting a certain way, having certain texture or ingredients, being generally edible, having only certain effects on the body, being capable of receiving condiment spreads, and so on.

      [6].      For more on the nature of concepts, see Eric Margolis & Stephen Laurence, Concepts, Stan. Encyclopedia Phil. (May 17, 2011), https://plato.stanford.edu/entries/concepts/.

      [7].      381 U.S. 479, 484–86 (1965) (holding that a law prohibiting married couples from using contraceptives unconstitutionally violated penumbral constitutional rights to privacy). Even if Griswold did not apply the same fundamental rights test that Glucksberg did, it seems unlikely that the Glucksberg Court doubted that Griswold would satisfy the current test. See Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997); see also id. at 762–65 (Souter, J., concurring).

      [8].      Obergefell v. Hodges, 135 S. Ct. 2584, 2606, 2618 (2015) (Roberts, C.J., dissenting).

      [9].      302 U.S. 319 (1937).

      [10].    Id. at 323–25.

      [11].    Id. at 326–27.

      [12].    Id. at 326.

      [13].    Id. at 327 (emphasis added).

      [14].    Cf. Larry Alexander, Scalar Properties, Binary Judgments, 25 J. Applied Phil. 85, 95–96 (2008). See generally Adam J. Kolber, Smooth and Bumpy Laws, 102 Calif. L. Rev. 655 (2014); Adam J. Kolber, Smoothing Vague Laws, in Vagueness and Law: Philosophical and Legal Perspectives 275 (Geert Keil & Ralf Poscher eds., 2016) [hereinafter Kolber, Smoothing Vague Laws]; Adam J. Kolber, The Bumpiness of Criminal Law, 67 Ala. L. Rev. 855 (2016) (arguing that criminal law often relies on all-or-nothing determinations rather than smooth input-output relationships between culpability and amount of punishment).