The newly released movie “Selma” chronicles Martin Luther King, Jr’s civil rights work and accomplishments in Alabama, including the voting rights march he organized from Selma to Montgomery, Alabama in 1965. But many of King’s efforts hinged on the rights within the 14th Amendment being fundamental. His efforts might not have been as successful if those rights were not enumerated.
In one on King’s most notable efforts was leading the Montgomery Bus Boycott — the activist arm of protest against segregation in Alabama. During the boycott, the legal arm made its way to the Supreme Court. In district court, Browder v. Gayle challenged Alabama laws requiring segregation of buses. The case was filed on behalf of African American women “who had been mistreated on city buses.” In the end, the Supreme Court upheld the district court ruling holding the laws unconstitutional, in violation of the 14th Amendment.
In reaching its decision, the court drew upon prior Supreme Court decisions holding that the 14th Amendment guarantees “a fundamental right of equality of treatment.” But what if Browder had not involved a fundamental right? The analysis would have been completely different. Simply put, the challengers wouldn’t have had a chance.
When evaluating laws involving fundamental rights, courts apply “heightened scrutiny” and seek out the truth. They examine the facts of the case, and determine if government sought to achieve a constitutional end through a constitutional means. In these cases, the burden of proof is on the government — government must prove its actions are a necessary means of exercising a proper power.
But fundamental rights are the exception, not the rule. They include those expressly listed in the Bill of Rights and a few others that the Court has decided deserve actual protection. Unless you are voting, speaking, going to church, or exercising one of a handful of other rights that have been dubbed fundamental by the Supreme Court, restrictions on your liberty will be evaluated under “rational basis test.” Under this test, courts regularly abdicate their responsibility to uphold the Constitution.
All of our rights, including unenumerated rights, deserve meaningful protection. The 9th Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
As Professor Randy Barnett notes in his Restoring the Lost Constitution: The Presumption of Liberty, “The Ninth Amendment was added to the Constitution precisely because it was impossible to enumerate all the liberties we have and undesirable even to try. Any effort to do so using originalist methods would give rise to the very danger the Ninth Amendment is there to prevent.” Barnett outlines innumerable quotes from James Iredell to James Madison that make clear that, contra Robert Bork, the Ninth Amendment is no “inkblot.”
What if the Bill of Rights was never added to the Constitution? Would it mean that the rights it outlines would not merit protection? Before the Bill of Rights was added to the Constitution, did people have no enforceable rights? The answer is obvious: Of course not. Our rights don’t exist nor deserve protection just because they’re outlined in the Constitution. Rather, the Constitution exists to prevent government from infringing on rights that pre-exist government. The Declaration of Independence states that every individual is born with a right to life, liberty, and the pursuit of happiness; the Constitution is designed to make the enjoyment of those natural rights possible.
Proponents of an approach to judging called “judicial engagement” believe that judges should take all of our rights seriously, all of the time, and do in every case what they already do in heightened scrutiny cases. Judicial engagement holds that there is no case in which judges can abdicate their constitutional obligation to seek truth.
At present, judges abdicate their responsibility to seek truth in the overwhelming majority of constitutional cases involving “non-fundamental” rights, like the right to earn an honest living. Under the rational basis test, courts presume that a challenged law is constitutional, and require the challengers to overcome an insurmountable burden of proof. As Clark Neily, Senior Attorney at Institute for Justice, notes, the test “permits — perhaps encourages — government lawyers and witnesses to misrepresent facts and distort reality” and “conscript[s] judges to act as advocates for the government.”
This presumption has no basis in the Constitution or in the reality of how the legislative process actually works. Barnett notes, “The original justification of the presumption of constitutionality rested, in part, on a belief that legislatures would consider carefully, accurately, and in good faith the constitutional protections of liberty before infringing it.” But the instances in which legislators have paused in the midst of the legislative process and said, “wait a minute, guys — is this constitutional?” are sparse.
Had Browder not implicated a fundamental right, the case might not have been decided as it was. The burden to prove that the law violated rights would have been on the laws’ challengers, and overcoming it would be virtually impossible. Their rights would have still existed, but because judges routinely decide not to provide real protection for non-fundamental rights, the court may well have upheld the segregation laws.
This is why courts should adopt a presumption of liberty and put the burden of proof on the government in all constitutional cases. While it is fortunate the 14th Amendment exists and King’s civil rights work was so successful, his work should have been just as successful if the 14th Amendment did not exist. If all legislators were angels, no judicial review would be necessary. But they’re not, so courts ought to examine laws and seek out the truth in all cases. When they don’t, our rights are disparaged when they are not outright denied.