This article first appeared in the St. Louis Beacon, June 29, 2010 - Justice John Paul Stevens delivered a valedictory dissent Monday extolling the "dynamic" character of liberty and the evolving meaning of the Constitution -- a dissent that provoked an acid, sarcastic response from Justice Antonin Scalia who accused the retiring justice of "putting democracy in peril."
The extraordinary, wide-ranging debate about a "living constitution" and the proper role of the judiciary played out at length on the pages of McDonald vs. City of Chicago in which the court announced 5-4 that states are bound by the Second Amendment's right to "bear arms." But the deeper discussion of constitutional meaning was lost in the sound and fury of the reaction to the decision, which effectively knocked out Chicago's handgun ban.
The exchange comes at a time when the court's role in making or interpreting law is front-and-center at Elena Kagan's confirmation hearings. The disagreement about whether the Constitution is a living document, its meaning changing with the times, has been at the vortex of the debate about the Supreme Court for the past 40 years and continues to be a major theme in confirmation hearings today. A justice expressing Stevens' views would have difficulty winning confirmation today.
As if guns were not controversial enough, the Stevens-Scalia debate in the case extended to whether the Constitution protects abortion, the intimate relations of gays and the right to teach a foreign language in public schools. Stevens said yes, Scalia no.
Justice Clarence Thomas added race to the constitutional tableau, advancing his own rationale for extending gun rights. He based his argument largely on the history of the Old Confederacy keeping guns out of the hands of slaves and freed blacks. Thomas traced violence against unarmed and disarmed blacks from slave days until Emmett Till, the African-American youth from Chicago who was tortured and killed in 1955 for supposedly whistling at a white woman.
All-in-all, it was a 200-plus page constitutional primer that touched on the Federalist Papers, the Nat Turner rebellion, Dred Scott, the Civil War, questionable 19th- and 20th-century court decisions on economic liberty and the court's more recent recognition of greater civil rights and personal liberties.
Here's how the debate played out.
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The 14th amendment and the Bill of rights
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The court had decided two years ago that the District of Columbia's handgun ban violated the Second Amendment. Left undecided until this week was whether the Second Amendment applies to the states as well as the federal government.
The Bill of Rights did not apply to the states when it was written. The 14th Amendment, adopted as a result of the Civil War, eventually became the vehicle for applying the Bill of Rights to the states.
The amendment, which was intended to give rights of citizenship to free slaves, provides, in part, that no state law "shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."
The first of those two provisions -- the so-called "privileges and immunities" clause -- might seem like the most likely way to apply the Bill of Rights to the states. But the Supreme Court ruled in the Slaughterhouse cases in 1873 that the clause gave only limited rights that attached to federal citizenship, rights that did not include those protected in the Bill of Rights.
When, in the 20th century, the Supreme Court began regularly throwing out state laws for violating the Bill of Rights, it used the second clause of the 14th Amendment, the due process clause, to apply the Bill of Rights to the states.
For the past century, the Supreme Court has been struggling with a coherent way to explain why it is using a clause that promises fair procedures to protect substantive freedoms. In the legal jargon, this is called substantive due process.
At first, in an early 20th century period known as the Lochner era, the court used substantive due process to knock down wage and hour laws protecting workers. The theory was that worker protections interfered with the liberty to contract.
The Lochner approach is now discredited. In more recent times, liberal justices have generally used substantive due process to protect individual freedoms from state intrusion, while conservative justices have been wary of inventing new constitutional rights.
This was the crux of the Stevens-Scalia debate in the gun decision.
Stevens' view of liberty
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Stevens pointed out that some of the court's "most enduring precedents" fleshed out the contours of liberty protected by due process. These include the right of whites and blacks to marry, the right of parents to send their children to parochial schools, the right to teach a foreign language in schools and the court's decision desegregating the D.C. public schools.
"Substantive due process is fundamentally a matter of personal liberty," he wrote. "For it is the liberty clause of the 14th Amendment that ... enacts the Constitution's 'promise' that a measure of dignity and self-rule will be afforded to all persons."
Stevens wrote that Justice Benjamin N. Cardozo got it right in a 1937 decision in which he wrote that the 14th Amendment should protect the values "implicit in the concept of ordered liberty," whether those values were the precise provisions of the Bill of Rights or were other equally important values.
Stevens said these values include "the ability independently to define one's identity," a right the court recognized in deciding that women should be allowed to join the Jaycees.
It also includes an "individual's right to make certain unusually important decisions that will affect his own, or his family's destiny." He cited his own 1975 decision tossing out a hospital policy that barred men from participating in the birth of their babies in the delivery room.
Beyond that, Stevens wrote, ordered liberty includes "self-determination, bodily integrity, freedom of conscience, intimate relationships, political equality, dignity and respect."
These latter values served as the basis of the decisions recognizing abortion rights and the intimate relations of gays -- two areas where Scalia thinks judges have used substantive due process to enact their own views.
"The subjective nature of Justice Stevens' standard," wrote Scalia, is "apparent from his claim that it is the courts' prerogative -- indeed their duty -- to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine, which basically means picking the rights we want to protect and discarding those we do not."
Scalia ridiculed Stevens' statement that judges should show "sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society."
Wrote Scalia: "I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend to the bench? Or does it mean judges are more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful consequences?"
Scalia had tongue firmly implanted in check when he remarked sarcastically, "No determination of what rights the Constitution of the United States covers would be complete, of course, without a survey of what other countries do." Stevens had suggested that judges look at the values of other advanced democracies in determining what values to recognize. Scalia mocked this "follow-the-foreign-crowd requirement."
To Scalia, the most objective and reliable way to determine what values to protect is a historical study of the rights rooted in American tradition.
He wrote: "In the most controversial matters brought before this Court -- for example, the constitutionality of prohibiting abortion, assisted suicide, or homosexual sodomy, or the constitutionality of the death penalty -- any historical methodology, under any plausible standard of proof, would lead to the same conclusion." That conclusion, for Scalia, is that none is protected, even though the court has recognized constitutional protection for abortion and gay relations.
Stevens called Scalia's "fixation" with his dissent "simply bizarre" and responded with his own zinger. "The judge who would outsource the interpretation of 'liberty' to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality."
Stevens added that a rigid historical approach "promises an objectivity it cannot deliver and .. . countenances the most revolting injustices in the name of continuity, for we must never forget that not only slavery but also the subjugation of women and other rank forms of discrimination are part of our history. ... It is a judicial abdication in the guise of judicial modesty. No, the liberty safeguarded by the 14th Amendment is not merely preservative in nature but rather is a 'dynamic concept.'"
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What the Framers thought
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Justice Samuel Alito, who wrote the majority opinion, called Stevens' dissent "eloquent" but still disagreed. He stated simply that "a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the federal government and the states." Gun ownership and the right of self-defense have been fundamental American rights throughout the nation's history, he wrote.
But Alito could not obtain a fifth vote for this view because Thomas took a different direction entirely. He concluded that the Supreme Court had been wrong in the Slaughter-House cases, as many legal scholars also have concluded. It is the privileges and immunities clause, not substantive due process, that applies provisions of the Bill of Rights to the states, he wrote.
"The right to keep and bear arms is guaranteed by the 14th Amendment as a privilege of American citizenship," he concluded.
Thomas said that a precedent from 1876 was especially unworthy of respect. In that case the Supreme Court threw out the convictions of a white militia who had murdered 165 blacks in Louisiana at the Colfax Massacre. The court reasoned that the rights granted blacks by the 14th Amendment did not include the right to bear arms or to assemble peaceably so the white militia did not violate their rights.
Dave Roland, a lawyer at the Show-Me Institute, agreed with Thomas. "Justice Thomas hits the nail on the head," he wrote in an email. "The plurality, Scalia's concurrence, and the dissent trade elaborate arguments about how the idea of 'due process' should be applied ... while overlooking the obvious fact that the concept itself is far removed from the text of the Constitution they are supposed to be interpreting.
"If our Constitution (or, more precisely, our government) is to maintain any legitimate force in our society, the justices of the Supreme Court must endeavor to apply its words in accordance with the understanding of the people who ratified them."
The bottom line was that five justices decided that the Second Amendment applied to the states, the four who agreed with Alito's use of substantive due process and Thomas, who eschews substantive due process and relies instead on privileges and immunities.
So, more than a century after the Supreme Court began applying the Bill of Rights to the states, it still is searching for an entirely satisfactory explanation for how to identify those important and intimate liberties that deserve constitutional protection.
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.