The Proper Role of Equality in Constitutional Adjudication: The Cathedral’s Missing Buttress
abstract. The most difficult and divisive issue in American constitutional law is how to deal with fundamental rights that are not specifically protected in the Constitution. At times, courts have afforded such rights near-absolute protection against infringement. At other times, courts have declined to provide such rights any constitutional protection. Both approaches are misguided. Instead, as argued by Justices Antonin Scalia and Robert H. Jackson, and Professor John Hart Ely, laws infringing these rights should be invalidated if they burden only some in society while leaving the rights of the enacting majority unimpeded.
This Feature begins by describing the two sorts of protections the Constitution affords to enumerated fundamental rights. Some rights are given full “libertarian” protection, with any infringement subject to close scrutiny. But others, such as the right to property, receive only “egalitarian” protection. Private property may be taken for public use so long as all of society is burdened by the requirement that compensation be provided.
This Feature argues that the Constitution should be read to extend similar egalitarian protections to any number of unenumerated fundamental rights. Encumbrances on these rights run afoul of the Constitution’s egalitarian guarantees if the burdens they impose are unequal. Protection of such rights is not available under the current reading of the Equal Protection Clause because violations of these rights are often not the result of discriminatory intent but rather the enacting majority’s desire to achieve results it deems good without bearing their costs.
This Feature seeks to return the Constitution’s egalitarian guarantees to the purpose contemplated by the Framers. It argues that a law violates these egalitarian protections if a law infringes unequally and substantially the fundamental rights of individuals not positively affiliated with the majority. It outlines factors in evaluating proper judicial remedies for impermissibly unequal laws. And it provides the doctrinal constitutional bases for such judicial action.
author. Senior Judge, United States Court of Appeals for the Second Circuit; Sterling Professor Emeritus, Professorial Lecturer, and former Dean, Yale Law School. An earlier version of the Feature was delivered in April 2023 as the Thomas F. Ryan Lecture at Georgetown University Law Center. The support and suggestions given to me by Georgetown’s dean, William M. Treanor, and its faculty were wonderful and more than one could hope for. I am immensely grateful to my former student and law clerk, Nathaniel Urban, without whose help this Feature could not have been written. His work was so great and so all-encompassing that he could easily qualify as a coauthor. Any errors in the Feature, however, remain mine alone. My judicial assistant, Natalie Stock, was, in this as in all that I do, essential. She was always ready to help in correcting and rewriting, and in enabling me to find the time to write, this Feature.
Introduction
The most difficult, divisive, and persistent issue in American constitutional law is the proper role of courts in the protection of rights that are viewed by many as fundamental but nonetheless are not specifically enumerated in the Constitution.1 At times, courts have afforded such rights full constitutional protection, either directly or by putting them in the penumbra of protected rights. At other times, courts have decried such protections as undemocratic, declining to offer protection or retracting protection from the right in question. I write to discuss the proper role of courts in the protection of such rights.
In one of Justice Scalia’s most interesting opinions—his concurrence in Cruzan v. Director, Missouri Department of Health—he wrote that due process (and like constitutional mandates) should not protect fundamental rights that are not expressly specified in the Constitution.2 He then stated that fundamental but unenumerated rights are protected by “the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.”3 As to such rights, he said, whether a violation is permissible should turn on whether the violation in question applied to only some people in society or to all.4
Justice Scalia’s dramatic claim echoes John Hart Ely’s broader point in Democracy and Distrust that “the choosing of values is a prerogative appropriately left to the majority (so long as it doesn’t by law or administration provide different rules for others than it does for itself).”5 Likewise, Justice Jackson, writing in concurrence in Railway Express Agency, Inc. v. New York, contended that “[c]ourts can take no better measure to assure that laws will be just than to require that laws be equal in operation.”6 Scalia, Ely, and Jackson each believed that judges would have too much power if courts were permitted to protect unenumerated rights from infringement when the laws restricting those rights did not violate equal protection.7
On this view, our society is fundamentally libertarian as to only very few rights: it permits infringements of many fundamental rights when the whole polity requires such infringements for social-democratic, communitarian reasons.8 Just a limited set of rights—most notably, speech and religion—are held to be fully inalienable and thus deserving of explicit constitutional protection.9 But our society is also fundamentally egalitarian: infringements of most fundamental rights are acceptable only if all of society shares the burden of such infringements.
The Ely-Jackson-Scalia position thus suggests that our constitutional structure adopts two of the three principles of the French Revolution: liberté and égalité.10 As to the third—fraternité, or “communitarianism,” as I choose to refer to it—our constitutional structure permits the legislature to promote this principle, but only so long as its legislative acts (1) do not infringe a few fundamental rights, namely those rights provided explicit libertarian constitutional protection; and (2) do not unequally burden other fundamental rights by infringing these rights only as to some—put otherwise, such legislative acts must not violate the Constitution’s egalitarian requirements.
Thus, Ely, Justice Jackson, and Justice Scalia seem to have believed that the Constitution should empower judges to protect unenumerated fundamental rights when the majority enacts a policy that infringes such rights only as to some and does not burden the majority.11 On the other hand, in their view, even fundamental rights can be limited so long as the violative policy infringes the rights of all, including the enacting majority. By “majority,” I believe these three meant (and I shall use the term to mean throughout this piece) the enacting governmental actors—powerful parties, as their ability to enact policy demonstrates—in contrast to a “minority,” that is those outside of power with whom the majority does not identify.
So far I am in strong agreement with Ely, Justice Jackson, and Justice Scalia. Majorities are better deciders than judges of what policies are worth their costs. Our Constitution has been read to give courts the power to protect very few specific rights.12 As to most rights, even crucial ones, our Constitution trusts democracy more than a judicial priesthood. But as Scalia and Ely say, the democratic majority can be trusted only when that majority is itself willing to bear the burden that limiting fundamental rights imposes. With no cost imposed on us or those close to us, nearly all of us would be willing to place even heavy burdens on an unseen minority in order to benefit ourselves. By contrast, a majority that is willing to burden itself is better positioned to identify the limits of rights than unaccountable judges are. This is the combination of liberty and equality that I, like Ely, Jackson, and Scalia, believe our Constitution establishes.
But to date, there has been no constitutional doctrine—grounded in the Equal Protection Clause or in any other constitutional provision—that protects unenumerated fundamental rights as Ely, Justice Jackson, and Justice Scalia say is needed. This absence is the source of many of our present constitutional conflicts. This Feature seeks to fill that void, to provide what I call the missing buttress, and explain the role of courts in doing so.13 And it seeks to be democracy-enhancing by ensuring that every policy’s costs are truly understood by the enacting majority.
Ely and Justice Scalia assert that unenumerated fundamental rights should be protected by the Equal Protection Clause.14 In Part I, I will explain why that Clause, as currently understood, cannot do the job that I agree must be done.15 In Part II, I will argue that the Framers gave egalitarian, rather than libertarian, protection to one right that they thought needed explicit constitutional protection: the right to property. I will suggest that the protection given to property is a model for the protection of other fundamental rights that, unlike property, are not specifically enumerated in the Constitution.
Recognizing that most laws acceptably burden some people more than others, I will detail in Part III when the protection of the Constitution’s egalitarian values requires judicial intervention and when no such intervention is needed. Specifically, I will argue that courts should intervene only if (1) a law infringes rights that, though not specified in the Constitution, are nonetheless fundamental; (2) such an infringing law substantially harms only a portion of the population; and (3) those harmed are not positively affiliated with the majority. I will then discuss how courts should respond if this inquiry concludes that a policy is impermissibly inegalitarian. Placing the same cost on the majority as on those whom the law harms is rarely possible (but may be available in some few cases, such as mandatory DNA collection or military service). Indeed, even compensating landowners financially is not the same as leaving them on their land. Where placing exactly the same burden on all is difficult or impossible, different types of burdens may be sufficiently similar in category and degree to ensure that the majority has not violated the Constitution’s egalitarian commands. Such a finding ensures that the majority bears an appropriate burden and that the burdened do not feel unequally treated. In such cases, which I will discuss through various examples, the majority will have adequately made a “show of earnest” by imposing a burden on itself.
Judicial intervention, even where justified, should vary based on the circumstances. I will argue that courts will rarely be able to impose a specific show of earnest. Instead, they usually should play the crucial role of determining whether the show of earnest chosen by the legislature is sufficient. Additionally, courts will have to decide the often-difficult question of whether an egalitarian law must be struck down immediately or left in place with a requirement that the legislature impose an adequate show of earnest in short order.
In Part IV, I will discuss a number of examples of infringements of rights—abortion restrictions, rent control, DNA gathering, pretextual traffic stops, and integrational busing—that I believe might require judicial interventions to ensure that their burdens are not placed only on those who are not affiliated with or linked to the majority.16 These examples may be appealing at times to the left and at times to the right. In other words, my approach is not an ideological or political one. Instead, it goes to the proper structure of democracy.17 I will argue that though the issues involved are difficult to resolve, courts already frequently grapple with them.
Finally, and most importantly, in Part V, I will discuss the constitutional and doctrinal bases for my argument and the limited judicial power it entails. In this respect, I will address two bases. The first is a broadened reading of the Equal Protection Clause. The second relies on the egalitarian principles found in any number of constitutional provisions and throughout our Bill of Rights. I will conclude by explaining again why this approach is more desirable and effective than the status quo, both in restraining how courts treat fundamental unenumerated rights and in allowing them to protect such rights when they are deserving of protection.
My belief that such rights exist is consistent with the way that Founding Era Americans viewed the process of specifying rights in a constitution: “Carrying forward longstanding constitutional habits, [Founding Era Americans] readily presupposed that constitutions were comprised of a seamless field of written and unwritten content.” Jonathan Gienapp, The Foreign Founding: Rights, Fixity, and the Original Constitution, 97 Tex. L. Rev. Online 115, 120 (2019). “In some instances, text was understood to have enacted certain institutions or legal standards, but in others it was assumed that this text easily blended with other . . . fundamental authorit[ies] such as natural law, Magna Carta, ‘right reason,’ general law, the law of nations, or just the ‘Laws of the Land.’” Id.; see also Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 293-305 (1998) (noting that “with all of [Founding Era Americans’] emphasis on written documents,” they did not entirely “concede[] that their charters and codifications by themselves were the source of their rights and liberties”); Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1127 (1987) (“[T]he founding generation did not intend their new Constitution to be the sole source of paramount or higher law . . . .”).
In addition to Founding Era arguments, others have argued that the Fourteenth Amendment’s ratification incorporated rights enumerated in state constitutions that remained unenumerated in the Federal Constitution. See Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 Tex. L. Rev. 7, 115-16 (2008) (“[F]or those wondering about incorporation or judicial protection against the states of unenumerated rights in federal constitutional law, the question is controlled not by the original meaning of the first ten Amendments in 1791 but instead by the meaning those texts and the Fourteenth Amendment had in 1868.”).
Id. at 300 (“Are there, then, no reasonable and humane limits that ought not to be exceeded in requiring an individual to preserve his own life? There obviously are, but they are not set forth in the Due Process Clause. What assures us that those limits will not be exceeded is the same constitutional guarantee that is the source of most of our protection . . . . [That] is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” (emphasis added)).
336 U.S. 106, 112-13 (1949) (Jackson, J., concurring) (“The framers of the Constitution knew . . . that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.”).
Invocation of the Due Process Clause or other constitutional provisions providing for near-absolute protection of a right is undesirable, Justice Jackson argued, because judicial “[i]nvalidation of a statute or an ordinance on due process grounds leaves ungoverned and ungovernable conduct which many people find objectionable.” Id. at 112. He went on to say that
[i]nvocation of the equal protection clause, on the other hand, does not disable any governmental body from dealing with the subject at hand. It merely means that the prohibition or regulation must have a broader impact. I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation.
Id. It is significant that Jackson made this argument in a case that did not involve discrimination against racial, gender, or other minorities. Jackson, however, appeared willing to allow “reasonable differentiation” in how different members of society were treated. Whether such differentiation ought to be permissible—and if so, to what extent and on what grounds—I discuss throughout this piece, but especially in Part V, infra.
Notably, Justice Jackson’s opinion expressly points to one of the principal virtues of an approach that focuses on egalitarian treatment: it allows for a second look at the constitutionality of a legislative action. That is, it permits courts to make a preliminary finding of unconstitutionality, while not ruling out that a statute could be rewritten to be made constitutional. Conversely, when a statute is held to violate an express constitutional guarantee, the asserted government interest in the object of the statute has been held insufficient to justify an infringement on a right. That ruling, then, prohibits the infringement of that right to further that interest without regard to whether society as a whole deems the burden on the right necessary to achieve some end. The approach advocated by John Hart Ely, Jackson, and Justice Scalia instead would allow the political branches to reenact the same burden on the same rights to further the same interest, so long as the acting majority, in Scalia’s words, “accept[s] for themselves and their loved ones what they impose on you and me.” Cruzan, 497 U.S. at 300 (Scalia, J., concurring). For a general discussion of the advantages of giving legislatures a “second look,” see Quill v. Vacco, 80 F.3d 716, 742 (2d Cir. 1996) (Calabresi, J., concurring in the result).
In using the term “libertarian,” I do not mean to reference the term’s modern political meaning. I mean to refer to the position that there are rights that are so fundamental that they may not be violated absent a truly compelling government interest. See generally Lawrence Solum, Legal Theory Lexicon: Libertarian Theories of Law, Legal Theory Blog (Jan. 2, 2022, 10:51 AM), https://lsolum.typepad.com/legaltheory/2022/01/legal-theory-lexicon-libertarian-theories-of-law.html [https://perma.cc/T7PA-T7X7] (“[T]he Lockean social contract would not authorize government to restrict fundamental liberties . . . .”).
Of course, probably no rights are in fact entirely inalienable. In rare situations, even explicit constitutional guarantees may be abridged. See, e.g., United States v. Rahimi, 602 U.S. 680, 690-91 (2024) (“Like most rights . . . the right secured by the Second Amendment is not unlimited.” (quoting District of Columbia v. Heller, 554 U.S. 570, 626 (2008))). But it remains true that our Constitution affords relatively few rights the sort of explicit protection provided in the First Amendment. And there are any number of other rights that, while not explicitly protected, have nonetheless been understood by the polity and the courts to be fundamental. Among those such rights are parental rights, the right to a degree of economic freedom, and the right to control one’s body. See infra note 78.
For a further discussion of those with whom the majority does not identify, see infra Section II.B.3. In this vein, our nation has a long tradition of public resentment towards governmental actors who enact policies that affect the public without impacting the enactors themselves. See, e.g., Ron DeSantis (@RonDeSantis), X (formerly Twitter) (Dec. 18, 2024, 9:51 AM), https://x.com/RonDeSantis/status/1869395006437654941 [https://perma.cc/942Z-QXQ6] (“Proposed 28th amendment: ‘Congress shall make no law respecting the citizens of the United States that does not also apply to members of Congress themselves.’”).
As a result, jurists seeking to protect fundamental rights that are unspecified often seek to squeeze them into one of the enumerated rights. See, for example, Griswold v. Connecticut, 381 U.S. 479, 483-86 (1965), in which the Court found a right to privacy in the penumbras of the First, Fourth, Fifth, and Fourteenth Amendments, among others. And litigants frequently play the same game. Another example of this phenomenon is City of Grants Pass v. Johnson, 603 U.S. 520, 543-47 (2024), where the respondents argued that governmental action criminalizing the status of homelessness violated their Eighth Amendment rights to be free from cruel and unusual punishment. This argument stretched that Amendment, and the Court rejected it. Id. at 556. Rather than an argument that their treatment was cruel and unusual, which is rarely applied, see John D. Bessler, The Concept of “Unusual Punishments” in Anglo-American Law: The Death Penalty as Arbitrary, Discriminatory, and Cruel and Unusual, 13 Nw. J.L. & Soc. Pol’y 307, 372 (2018), respondents’ position sounds closer to an argument that homeless individuals were being subject to an unequal burden. Respondents, however, argued neither equal protection nor due process. See Brief for Respondents at 18-43, City of Grants Pass v. Johnson, 603 U.S. 520 (No. 23-175) (advancing an argument under the Eighth Amendment without arguing equal protection or due process); see also Brown v. MGM Grand Casino, No. 22-cv-12978, 2024 WL 4819575, at *2 (E.D. Mich. Nov. 18, 2024) (describing the plaintiff’s contentions that getting vaccinated conflicted with his religious beliefs). Such penumbral arguments are, moreover, readily attacked. See, e.g., Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 268 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973)).
For those who may not know my article with A. Douglas Melamed, there I argued that entitlements to property and bodies are, in our law, protected and transferred in three ways; they may be transferred by agreement of the parties (contract law), by collective decisions (criminal and regulatory law), and through individual decisions, but with such decisions charged with a price/assessment determined by the state (tort law and eminent-domain law). For this argument, see generally Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972).
In that article, I referred to Monet’s many paintings of the Cathedral at Rouen. Id. at 1090 n.2. Monet’s paintings demonstrated that to appreciate the cathedral fully, one needed to look at any number of depictions. Id. He did the same in a series of paintings of Haystacks. My reference was meant to suggest that the law-and-economics approach, taken by my article, was not the only way to depict law and that to understand law other approaches were needed. I did not mean to say that law was a cathedral. The point could have been made, though less elegantly, by using haystacks. That article has been cited innumerable times. And in many of those citations, the law is described as a cathedral. I now give up. Treating the law as a cathedral in this Feature, I argue that a crucial part of that cathedral, a part that is necessary to its strength, has not been adequately appreciated by scholars and judges. That part which I call the missing buttress, has, I believe, a function in both law-and-economics depictions of the cathedral and in more traditional rights-based ones.
It is not clear whether Justice Jackson, like Ely and Justice Scalia, looked to the Equal Protection Clause as the constitutional basis for such a holding. His language—that laws must be “equal in operation”—spoke to equality more generally. See Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 113 (1949) (Jackson, J., concurring). However, to the best of my knowledge, Jackson did not develop his thought further.
The gravamen of our modern equal-protection jurisprudence is Justice Stone’s famous footnote four in United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). Footnote four limits the coverage of equal protection to “discrete and insular minorities,” which the Court identified as perhaps “a special condition[] which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities [that] may call for a correspondingly more searching judicial inquiry.” Id. Later, under the influence of Robert A. Dahl, the scope of whom the Clause protected was expanded. See generally Robert A. Dahl, Pluralist Democracy in the United States: Conflict and Consent 34-62, 124-32 (1967) (arguing that disorganized majority coalitions may, at times, be less powerful than highly organized minority coalitions). But footnote four remains the foundation of our Equal Protection Clause jurisprudence, and, as a result, the Clause continues to be read to protect defined categories of people from discrimination.
Bruce A. Ackerman has persuasively argued that Carolene Products was mistaken as to which categories of minority groups ought to be afforded the highest level of protection under the Fourteenth Amendment. See Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713, 737 (1985) (“It is the members of anonymous or diffuse groups who . . . will have the greatest cause to complain that pluralist bargaining exposes them to systematic—and undemocratic—disadvantage.”); see also id. at 742 (“After a generation of renewed struggle for civil rights . . . it no longer follows that the discreteness or insularity of a group will continue to serve as a decisive disadvantage in . . . pluralist bargaining.”).