The Rash to Repeal our Rights


The news recently reminded me about rights in this country. I was reading the BBC News on September 3, 2018 and came across "Malaysia Women Caned for Attempting to have Lesbian Sex." The article notes that "homosexual activity is illegal under both secular and religious laws." And, Malaysia "operates a dual-track legal system," where "Muslims are bound by Sharia" on certain issues, "while members of other faiths follow civil law." This entire paragraph may tend to make us thankful for our Constitution, our protection of equal rights, and the concept of equal protection under the law. 

We are blessed that our Constitution recognizes rights. It does not grant them, it guarantees them. Many a student has struggled to recognize this distinction and its critical importance. Before the Constitution was drafted, our founders began their divorce from Britain with an itemization of complaints "submitted to a candid world." In it, the founders declared our independence and described the actions of the crown that had led to their decision. 

The Declaration of Independence says: 

"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" 

It is critical to us all that these are not beliefs, but "truths." They are not arguable, but are "self-evident." And, we posses these because we "are endowed by (our) Creator" with them. In this powerful language is recognition of a simple truth, we have rights because we exist. We do not gain them through governmental grace or grant, but we are born with them. While that Declaration language is clear, it is not part of the Constitution; it signals intent certainly, but it is not the Constitution itself. 

After that 1776 Declaration, there followed the Articles of Confederation adopted in 1777, ratified in 1781. A decade later in 1787, Congress approved a convention to "revise the Articles." That convention instead adopted the United States Constitution on September 17, 1787. It was ratified in 1788, but contained no bill of rights. This omission, according to the ACLU, rendered it "deeply flawed." Initially, twelve amendments were later proposed, and ten were soon ratified, those first ten amendments have since referred to as the "Bill of Rights."  

According to the ACLU, "the Bill of Rights established soaring principles that guaranteed the most fundamental rights in very general terms." One might well take issue with this characterization of "established," and instead argue that those principles had long existed and were merely "recognized" by these amendments. But, the immediately subsequent use of "guaranteed" aptly reinforces that those rights existed and were recognized, not granted, by the very people whose grant of power created the government itself. 

There was a significant period of history in which those guarantees were interpreted as barring infringement by the federal government, but not the states. Then, in 1868, the Fourteenth Amendment was ratified; there are notable similarities between the Fourteenth and Fifth Amendments. A major distinction of the Fourteenth however is its language "no state shall." This protects "privileges and immunities," precludes deprivation of "life, liberty or property without due process," and guarantees "equal protection of the laws," all in reference to state power. This marked the beginning of a new relationship of federalism in the United States. 

As an aside, two points. First, note that the Fifth and Fourteenth each  departs slightly from the "Life, Liberty and the pursuit of Happiness" in the Declaration. Happiness, it seems was revered in the inception, but less protected in the execution? Or, does it signal a greater appreciation of property in the execution? Second, I note the absence of the Oxford Comma that recently was deemed legally significant. Are "liberty or property," separate thoughts or inextricably co-joined? But, that digression I save for another day.

Following ratification of the Fourteenth Amendment, the U.S. Supreme Court rendered various decisions through which the guarantees of the Bill of Rights were expanded from only precluding infringement by the federal government to precluding state infringement as well. These Court analyses were referred to as "incorporating" those protections through a combination of their individual respective language and the broader language of the Fourteenth Amendment. 

Though that analysis could perhaps have been broad, simple, and rapid, it was instead conducted through various individual cases in a process the Court labelled "selective incorporation." The sequential process is said to be required by an overarching premise of our legal system that legal interpretations will occur in actual "case and controversy" in which parties with a personal interest in the outcome ("standing") confront each other and express their perspectives. 

Constitutional law can be difficult to understand, and sometimes hard to predict. It perhaps began with the U.S. Supreme Court itself decided to be the arbiter of all things constitutional, see Marbury v. Madison, 5 U.S. 137; 1 Cranch 137; 2 L. Ed. 60 (1803). That is a truth that many Americans do not contemplate often. The Supreme Court's role regarding decisions of constitutionality is not expressed in the Constitution. The power undertaken by the Court in this regard is antithetical to the overriding spirit of American government, that the power rests with the people, and therefore the power of government is limited to that which the people grant. Instead, this power was assumed by the Court based upon its interpretations of implied power, and has been retained since. 

That is not the limit of the Court's interpretations based upon implication and perceived context. The Court has recognized the rights stated in our Constitution. But it has protected other rights, not mentioned in the Constitution, but "implied." For example the U.S. Constitution guarantee of a right to privacy is not explicitly stated in the Bill of Rights, nor elsewhere. That is not to say that we do not have such a right. In fact, beginning in the twentieth century, the U.S. Supreme Court concluded that such a right does exist, despite not being mentioned in the document. The Court concluded that this right is founded upon the guarantees of "liberty" in both the Fifth and Fourteenth Amendments. 

The Court concluded that privacy rights were broad, including: 

"the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390 (1923). 

This implied Constitutional protection for rights not enumerated in the document itself refers to these as "penumbral" rights. An excellent example of the judicial process engaged is Griswold v. Connecticut, 85 S.Ct. 1678 (1965). This decision has been described as "creating" a right to privacy, in relation to contraceptive decisions and state laws. But that language is deceptive, upon the premise discussed above that rights are neither created or granted, but exist in us because we exist. Again, the more apt term might instead be "recognized." 

The Griswold Court noted that "The association of people is not mentioned in the Constitution nor in the Bill of Rights." This surprises many, who mis-remember from secondary school that the First Amendment specifically addresses "freedom of association." The Griswold Court did so conclude, not because the amendment says so, but because it concluded that the "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees." The rights recognized in the Bill of Rights, according to Griswold, are not exclusive. The penumbras that surround them, the implications they evoke, are "necessary in making the express guarantees fully meaningful." 

Though it figured significantly therein, the First Amendment did not stand alone in the analysis of the Griswold Court. The Court  additionally included in this "privacy" analysis the penumbras of the ThirdFourthFifth, and Ninth Amendments. There were various explanations as to the manner in which the Third, Fourth, and Fifth protected privacy and liberty. From those protections, the Court concluded, came the penumbral right of privacy. 

There was not unanimity in Griswold; two justices dissented, an expression of disagreement. Three others joined in a concurring opinion, in which they agreed with the outcome (recognition of privacy) but expressed somewhat different analysis. Written by Justice Goldberg, this concurring explanation emphasizes the guarantees of "liberty" in both the Fifth and Fourteenth Amendments. Justice Goldberg (and the justices that joined this concurrence) conclude that "the concept of liberty" protects privacy. The analysis bolsters that conclusion citing previous court decisions holding the "Due Process Clause protects those liberties." 

Justice Goldberg provides more illumination, however, regarding the Ninth Amendment. He concluded that the wording of the Ninth established that "the Framers of the Constitution believed that there are additional fundamental rights." Though not enumerated in the Constitution, he contended that those "additional" rights nonetheless "exist alongside those fundamental rights specifically mentioned" and that they are equally "protected from governmental infringement." 

Griswold is explanatory of the concept of penumbral rights generally and the rights to association and to privacy specifically. However, a more detailed explanation is perhaps provided by another decision eight years later. While Griswold is familiar to scholars, the American public is generally more familiar with Roe v. Wade, 410 U.S. 113 (1973), at least by name. Roe cited Griswold, and reviewed the "right to privacy" in depth. This again included discussion of "privacy" implications of the First, Fourth, Fifth, and Ninth Amendments. The Roe Court held "this right of privacy" regardless of whether its foundation is the Ninth or Fourteenth, "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."  

From these examples and many more come the accepted recognition of critical points: our rights are inherent; and the Constitution protects them whether they are stated outright therein or implied. The existence of those rights are protective of us in a way that the Malaysians discussed in that recent news story might only imagine. But, are we appreciative of, protective of, those rights?

In 2015, Fox News reported on a "filmmaker and satirist" visiting Yale University. The premise was to ask students to sign a petition supporting the repeal of the First Amendment (which protects the rights of expression, of religion, and from religion). The story reports that "a solid majority" of those approached were willing to sign the petition. Several were reportedly enthusiastic in their approval for the proposition of removing this reference to expression and implied association. 

In June of 2016, A blog by Mark Bennett contended that "It's Time to Repeal the First Amendment." At the conclusion, he added that "as well as the First, obviously the Second (Amendment)." He asserts that the founders of this country were fallible and that they may periodically have been wrong. He argues that the First Amendment is "one of those times." Mr. Bennett cites various perceived failures of the founders in support of his argument against their infallibility.

In support of his contention that repeal of the First Amendment would be positive for America, he describes the amendment process somewhat obliquely, noting the adoption of the Twenty-First Amendment and its repeal of the Eighteenth. Such amendment to repeal the First, he argues, would enhance American liberty and protect privacy in an age of technology that was simply never imagined by the founders of this country. He cites the potential for someone with "a communication device that can easily offend or embarrass you and countless others," a potentiality I have written of, Assume Everyone is Watching, and Evolving Issues of Body Cameras.

In 2017, the Daily Wire reported on perceptions of "a flawed judgement" in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010). A political candidate was quoted concluding that this decision "perverted our electoral system" and presented "a gateway to corruption." The Wire reporting was critical of the candidate and of perceived distinctions regarding sources of money. Citizens presented a challenge to financial limitations on campaign contribution alleging that violated the First Amendment protections on "freedom of speech." That candidate advocated amendment of the Constitution regarding constriction of the freedom of speech recognized in Citizens.  

In Citizens, the Court explained that laws precluding speech must be "subject to strict scrutiny," meaning that the government starts from a position of disadvantage. This is one of the "standards of review," commonly employed by the Court in analyzing constitutional challenges. Under "strict scrutiny" review, the government action or legislation is presumed to be unconstitutional. The government therefore bears the burden of demonstrating that the action or law both "furthers a compelling interest and is narrowly tailored to achieve that interest." There have been those who characterize the second of these, narrowly tailored, as requiring proof that there is essentially no other way to achieve that compelling interest. 

In March 2018, Justice Stevens (ret.) of the U.S. Supreme Court editorialized in the New York Times regarding guns: "Repeal the Second Amendment." He reveled at the "civic engagement schoolchildren . . . demonstrated" in their spring 2018 gatherings. He conceded a perception of progress in the occurrence of debate regarding changes in gun laws, but advocated instead repeal of the Second Amendment, referring to it as "a relic of the 18th century." 

Justice Stevens briefly recounted perceptions of historical Second Amendment cases, and quotes former Chief Justice Berger's derogation of Second Amendment proponents. Justice Stevens' seeming agreement or reverence with precedent ends, however, with his critique of District of Columbia v. Heller, 554 US 570 (2008). That decision, "that there was an individual right to bear arms," he takes issue with, asserting that it "was wrong and certainly was debatable." Justice Stephens sees "the people" in that Amendment as a collective, not individual, right. 

In March 2018, Esquire reported on the editorial by former Supreme Court Justice Stevens. It noted that calls for repeal of the Second Amendment are not necessarily new. It cited efforts by Representative Owens to that end in 1992 and 1993. Rep. Owens explained that repeal would "eliminate the rationale that people should own guns because the Constitution says so." Rep. Owens, apparently conceded the individual right, and did so prior to Heller. He conceded that repeal "would not in itself outlaw guns - but would set the stage for the legislatures to start getting rid of guns."

However, that contention regarding the effect of repeal is seemingly not as clear as Justice Stevens, Rep. Owens, or the others discussed above might like. Chaos theory (which essentially "teaches us to expect the unexpected") suggests that our existence at this moment results from the confluence of millions of coincidences that both surround and preceded us. 

This was popularized early this century in the movie The Butterfly Effect. Promotion for the movie noted "It has been said something as small as the flutter of a butterfly's wing can ultimately cause a typhoon halfway around the world." The implication is that changes can have cascading or exacerbated effects. One line from the movie perhaps summarizes this "You can't change who people are without destroying who they were." Along this thought process, one might inquire whether you can destroy who we were, when we were endowed by our creator with inalienable rights?

Therefore, one who advocates the repeal of the First Amendment, due to their present feelings about privacy, might well consider that the protection or guarantee of their right to privacy is founded, at least in part, on that very amendment. Those who advocate repeal of the First because of their view of Citizens, might also consider the unintended implications that could arise from repeal or amendment directed at that particular analysis of speech. Might such alteration or repeal cascade into unintended consequences for either speech or association? Might the right to privacy itself be impacted? 

It is also worth considering whether repeal affects any change. The presence of a recognition or guarantee of a right in the Constitution certainly supports that it is a fundamental right worthy of guarantees of protection. However, the inverse is not true. The absence of a recognition in specific constitutional text has not prevented the Court from either recognizing that as fundamental or from enforcing protection of it.  

The Legal Dictionary contends "no comprehensive list of unenumerated rights has ever been compiled nor could such a list be readily produced." This logic is founded on the broad interpretation of our rights as a consequence of our existence and that what government powers do exist only exist because we conveyed to it. The Tenth Amendment makes clear that what the people did not give, the people retain. However, "a partial list" of such recognized penumbral or unenumerated rights "might include": "the right to travel, the right to privacy, the right to autonomy, the right to dignity, and the right to an Abortion." 

Thus, a valid question might be considered. Would removing freedom of expression or the "right of the people to keep and bear Arms" from the text of the Constitution necessarily change that these rights are nonetheless fundamental, inherent, and inalienable? Could mere repeal (an act indicating or suggesting a negation or rejection of protection), in itself, repeal protection? Some would suggest not. 

Some would argue that such a repeal would have to also include or be accompanied by some express conveyance of power from the people to the federal government. That is, they would suggest that such a repeal of specific right protections would not negate the accepted existence of the right nonetheless. The right, they would argue, exists and is fundamental whether stated in the Constitution or not. They would argue that to eliminate that right, the people would have to relinquish it specifically, through some grant of specific power to the federal government enumerating power, to the derogation of the people themselves. 

Seemingly, in the absence of such a grant of power, it is seen as possible that the Court could persist following a mere repeal in guaranteeing these rights, recognizing these rights, even if they were not specifically mentioned in the Constitution any longer. There is significant precedent to support the protection of rights despite their absence from textually specific protection. 

In this regard, the Bennett example of the Twenty-First and Eighteenth Amendments is intriguing. By adoption of the Eighteenth, the process eliminated the "manufacture, sale, or transportation of intoxicating liquors" in the United States "for beverage purposes." That amendment granted a power to the government, though not necessarily in explicit terms. That amendment could be seen as an affirmative and purposeful relinquishment of the right to make, sell, and transport liquor. But, note, the amendment did nothing to eliminate a person's ability to consume intoxicating liquor as a beverage. One might argue that the right to consume it, though penumbral before the Eighteenth, remained undisturbed even after ratification.  

The argument might thus be made that the Eighteenth relinquished commercial rights, more so than individual rights. That might be difficult to reconcile with the existing interpretations of the personal nature of both First and Second Amendment guarantees, and the overarching clarity of people's retention of rights found in the Tenth. In that regard, the Twenty-First restored protection of commercial rights, and eliminated a governmental power delegated by the people in the Eighteenth.  

Thus, clearly, the delegation of power to the government is not immutable. Having given power to the government, the people remain able to take that power back. That is the lesson of the Eighteenth and Twenty-First. The example of these two Amendments does not, however, suggest or support that repeal of a recognition or protection of fundamental rights would thereby necessarily empower the government to ignore such rights. Those rights would, following an amendment's repeal, nonetheless remain as fundamental and sacrosanct, in the absence of some specific grant of power.  

Certainly, there are those who would suggest that the nature of the Amendments themselves could be relevant to such discussion. They may see distinction in the manner of prohibition of the First Amendment: "Congress shall make no law" as compared with the Second Amendment: "shall not be infringed." But, each is clearly a prohibition on government action to impair rights. And, even if those amendments were repealed, the inherent rights that they protect would arguably remain in the absence of some grant of power to the government.  

Thus, the arguments of repeal are seemingly more complex than first noted. The rush to repeal might instead be a rash to repeal, neither considered nor studied. A rash and emotional reaction to perceptions and beliefs. In the National Review, Jay Cost responded to Justice Stephens' repeal gauntlet. He notes that the Constitution is hard to amend, and argues that it was so intended. He extols the checks and balances of this document, and warns of "an excess of majoritarianism."  Notably, majoritarianism might be blamed for the ban on Malaysian lesbian sex that led this discussion. There are certainly examples of majority-accepted laws in this country  that have been stricken by the precepts of our Constitution. It is constitutionalism that tempers the expediency of immediacy. 

The upshot is that we find ourselves in a constitutional republic in which the swings of majority whim are constrained and tempered by an overriding (by its own terms, Article VI., the "Supremacy Clause") structure and consistency. That structure is persistently challenged and interpreted. It is is not immutable, but delivers consistencies nonetheless. That structure or its specifics can be changed, but the fact is that it cannot be changed easily. Change does not come rashly, but ponderously. The advocates of the Equal Rights Amendment have recognized that for almost 50 years. Therefore, it seems likely our lifetimes will see advocacy of addition or repeal, perhaps in rash and rapid proposals, but amendment is simply not probable, for better or worse. 


David Langham is the Florida Deputy Chief Judge of Compensation Claims. He blogs weekly regarding system issues, regulations and decisions. He has published many articles and delivered more than 1,000 professional speeches.


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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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