“All Roads Lead to the Glucksberg Test”

. . . and other surreal things right-wing judges say they think.

[TEMPORARILY UNLOCKED]

The other day, I was trying to dig up what lies beneath Alito’s egregious draft opinion for overturning Roe v. Wade, when I fell, like Alice, into a rabbit-hole and found myself in a very strange and baffling universe filled with weird characters and strange lines of thought.

”Curioser and curioser,” I murmured.

I was reading parts of some quite old Supreme Court decisions—one of the opinions was by a judge born before the Civil War—which contain the chain of precedents, every link supposedly hammered into unbreakable iron, and supposedly leading inescapably to Alito’s assertion that certain rights are constitutionally protected only if they are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” as well as his claim that this supposed standard rules out protection for controlling one’s reproduction via abortion.

Then I saw where I was. I’d bumbled my way into what, from today’s perspective, is a bizarre spectacle: federal judges’ trying like hell, in the early twentieth century, to come to terms with how the Fourteenth Amendment should and should not be applied when citizens appeal to “due process” and “equal protection” provisions in efforts to defeat certain laws and prosecutorial practices of their states.

I’d known about this phenomenon. When I was growing up, many landmark, liberalizing court decisions were based on it, not just Roe v. Wade but also Brown v. Board of Education, Gideon v. Wainwright, Griswold v. Connecticut, and others. In the second half of the twentieth century, the federal judiciary prohibited state governments from infringing certain individual rights that—this is one way to look at it—the original framers prohibited only Congress from infringing. Those new federal protections arose from altered relations among citizens, states, and the federal government brought about by the operation of the Fourteenth Amendment. I’d also been aware, as a student of U.S. history, that some famous early cases applying the Fourteenth weren’t progressive at all.

But I’d never been smack dab in the middle of the process, watching it unfold, in a series of less famous Supreme Court decisions. The past, as they say, is a foreign country. Things hadn’t been sorted out yet.

In the public post linked above, I did report on the epic-mythopoeic origins of Alito’s “deeply rooted in this Nation’s history and tradition” stuff. That concept is drawn from some of the precedent decisions cited by the big decision that Alito cites early in his draft opinion, and that Justice Kavanaugh too swears by: Washington v. Glucksberg. “All roads lead to the Glucksberg test,” Kavanaugh assured the Senate during his confirmation process, but what I think I learned the other day is that all roads leading back from Glucksberg into the past are bumpy and unimproved and run out pretty quickly in the lush forests of oratory.

Today, though, I take the risk of testing the collective patience of my paying subscribers—the few, the proud—by offering a slim glimpse of the welter of sheer weirdness I landed in, prevailing at the upper reaches of constitutional law in the first half of the last century, when a chaotically revolutionary reversal of founding intent—a reversal for the better, in the amendments that emerged from the Civil War—could be presented only as a controlled, developmental process, eminently rational, carried out under laboratory conditions with immense gravitas by the soberest and brainiest of our society’s beneficent elders, themselves deeply rooted in the most elite institutions and hierarchies of our nation’s history and tradition. Had the process of reckoning with the Fourteenth been presented the way some of these cases make the process really seem, constitutional law—the whole idea of constitutionality—might have started to look as if it doesn’t always make a ton of logical sense.

It’s also worth noting—always—that the original intent of those post-Civil War amendments, to foster political equality for black men, wasn’t carried out at all, and it has nothing to do with these cases. Which is a story in itself.

Return with me, then, to a time when a certain class and creed of white men really did rule everything here. They did so via modes of thought—"rootedness” in tightly proscribed ideas of “national history and tradition”—that would rule out not just restraining states from outlawing abortion but also the presence on the court of at least four of the five justices now so ardent about reviving those modes (Gorsuch is the possible exception because while raised Catholic, he’s Episcopalian now), even while it welcomed racial segregationists to the bench without reservation. Those were the days.

I found reading some of these decisions on which Alito’s garbled draft ultimately relies so compelling in part because unlike the cases that kind of announce themselves as landmark, the issues here aren’t landmark in themselves. Snyder v. Massachusetts (1934) begins, “On April 9, 1931, James M. Kiley was shot to death at a gasoline station at Somerville, Massachusetts.” From Palko v. Connecticut (1937): “Appellant was indicted in Fairfield County, Connecticut, for the crime of murder in the first degree. A jury found him guilty of murder in the second degree, and he was sentenced to confinement in the state prison for life.”

And from my fave, Twining v. New Jersey (1908): “The indictment charged that the defendants, being directors of the Monmouth Trust and Safe Deposit Company, knowingly exhibited a false paper to Larue Vreedenberg, an examiner of the State Banking Department, with intent to deceive him as to the condition of the company.”

All kind of workaday and hardboiled and shot in black-and-white. Nobody here seems to be working toward opening avenues to new degrees of freedom and liberty for whole classes of people. It’s more procedural. Those convicted of crimes, from the violent to the sleazebag, are trying to overturn their convictions or modify their sentences on various grounds of appeal to the Fourteenth Amendment’s prohibition on states’ denying due process of law.

So in Twining, the issue was whether the right to avoid self-incrimination, protected at the federal level by the Fifth Amendment, is also secured via the Fourteenth for a citizen against a state. In Palko, the question was whether the Fifth’s prohibition of double jeopardy at the federal level also applies against the state, and in Snyder, the issue was whether a defendant’s being barred from a viewing of evidence by the jury—they took a field trip to see that Somerville gas station—had been denied the right to be present at trial, and thus denied due process under the Fourteenth.

All of that means—just by the way—that Alito’s draft errs wildly, right up front. It says:

The Due Process clause of the Fourteenth Amendment  . . . has been held to guarantee some rights that are not mentioned in the Constitution, but any such rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” . . .

In those embedded quotations, Alito is invoking Snyder, Palko, and Twining (by way of Glucksberg Almighty), and as we’ve just seen, none of them has anything to do with the issue of “rights that are not mentioned in the Constitution.” Every one of them has to do with the question of which rights that are mentioned in the Constitution may be applied against a state, which was the big issue at the time.

The issue of rights not expressly mentioned is real, and separate, and it can’t be addressed with reference to those particular quotes. Alito is trying to blur a bunch of stuff together because there’s no real logic to the underlying opinion.

Another thing worth noting about the language Alito has quoted to back up his deep-rootedness idea. In the three cases we’ve just glanced at, from which his language is drawn, the answer to the question of whether the due-process protections of the Fourteenth could be applied against a state was a firm No, and that might seem to give at least a vague kind of stumblebum thumbs-up toward at least a part of Alito’s impossibly blurry case against the due-process provisions as protectors of abortion.

But it doesn’t, because two of those cases, Palko and Twining, were later overturned—for denying due process. Happily, that is, no, your state now can’t compel you to self-incriminate or suffer double jeopardy. (If you shoot someone in a gas station, though, and the judge won’t take you on the field trip, I guess you’re still out of luck.) So it’s not clear—to me anyway—whether the so-called Glucksberg Test requires those cases where its airy language was first enshrined to be un-overturned.

But I can’t really comment meaningfully on the legal logic. It’s as a student of the history of the U.S. and as a reader of literature that I sniff the justices flailing pretty hard to make fundamental historical and political contradictions that go back to the origin of the nation seem non-contradictory. Justice Moody, in the 1908 Twining opinion:

. . . This view is based upon the contention which must now be examined, that the safeguards of personal rights which are enumerated in the first eight Articles of amendment to the Federal Constitution, sometimes called the Federal Bill of Rights, though they were by those Amendments originally secured only against National action, are among the privileges and immunities of citizens of the United States, which this clause of the Fourteenth Amendment protects against state action. This view has been, at different times, expressed by justices of this court . . . and was undoubtedly that entertained by some of those who framed the Amendment. It is, however, not profitable to examine the weighty arguments in its favor, for the question is no longer open in this court. The right of trial by jury in civil cases, guaranteed by the Seventh Amendment . . . and the right to bear arms guaranteed by the Second Amendment . . . have been distinctly held not to be privileges and immunities of citizens of the United States guaranteed by the Fourteenth Amendment against abridgment by the State. . . .

Give the dead rich white Protestant dudes credit. They were trying to sort out strange new stuff and cope with massive change, not roll things back to a time that never existed, like Alito and his crew. There’s much more to be said about those strange days, when judges were trying to reconcile the Fourteenth to the first eight, and vice versa, in the context of the first ten’s having become known as the Bill of Rights, contrary to their actual origin—but that stuff has to be said, and has been said, by legal scholars, not me.

I’m more struck by how these cases, which begin in noir-ish milieu like gas-station shootings and bank fraud, inspire the judges, when challenged by the Fourteenth, to flights of prose on national history, which end up a kind of nationalist history, which ends up revealing the limitations of using nationalist history, always essentially poetic, in deciding such matters. The tactic starts out by making sense. If you have to look at widely held understandings of common law when certain laws were written, then you have to go back in time. Regarding both history and precedent, this seems solid (Moody again):

It does not follow, however, that a procedure settled in English law at the time of the emigration, and brought to this country and practiced by our ancestors, is an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be fastened upon the American jurisprudence like a straightjacket, only to be unloosed by constitutional amendment. That, said Mr. Justice Matthews. . . "would be to deny every quality of the law but its age, and to render it incapable of progress or improvement."

But it only sends him smack into this problem:

But, consistently with the requirements of due process, no change in ancient procedure can be made which disregards those fundamental principles. [quoting precedent here:] . . . "This court has never attempted to define with precision the words 'due process of law.' . . . It is sufficient to say that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard."

And then we’re off to the history races, in search of what’s immutable and what’s mutable:

For nothing is more certain, in point of historical fact, than that the practice of compulsory self-incrimination in the courts and elsewhere existed for four hundred years after the granting of Magna Carta, continued throughout the reign of Charles I (though then beginning to be seriously questioned), gained at least some foothold among the early colonists of this country, and was not entirely omitted at trials in England until the eighteenth century. . . .

But I’ll spare you the ensuing thousands of words citing both legal cases and history books. They lead to this conclusion:

This [endless!] survey [of legal and cultural history] does not tend to show that it was then in this country the universal or even general belief that the privilege ranked among the fundamental and inalienable rights of mankind, and, what is more important here, it affirmatively shows that the privilege was not conceived to be inherent in due process of law, but, on the other hand, a right separate, independent and outside of due process. . . . Even if the historical meaning of due process of law and the decisions of this court did not exclude the privilege from it, it would be going far to rate it as an immutable principle of justice which is the inalienable possession of every citizen of a free government. Salutary as the principle may seem to the great majority, that it cannot be [this may be where Glucksberg gets the idea that there’s a self-evident ranking system:] ranked with the right to hearing before condemnation, the immunity from arbitrary power not acting by general laws, and the inviolability of private property. The wisdom of the exemption has never been universally assented to since the days of Bentham; many doubt it today, and it is best defended not as an unchangeable principle of universal justice, but as a law proved by experience to be expedient.

Whew! Boatloads of historical erudition, which you’ve been spared, lead to a conclusion that in the end has to posit a ranking system for determining the relative importance of a right, against a standard called “an unchangeable principle of universal justice”—and after all that, and just when I was on the verge of pretty much buying it, the whole mighty intellectual effort gets overturned, in 1964, when it becomes clear to the court, 5-4, that the right is protected by the Fourteenth against the state after all.

So much for unchangeable principles of universal justice.

What doesn’t get overturned is this tendency in Supreme Court judges to discourse on U.S. and mother-country history, in their effort to make phenomena that are in fundamental conflict with one another seem to make underlying sense. Those discourses often go beyond legal precedent and into cultural history and founding-era political philosophy, with conclusions regarding what supposedly is and isn’t in keeping with supposedly sacrosanct traditions, as per Alito, and the judges can get the American past pretty embarrassingly wrong. Justice Scalia’s Heller opinion regarding the Second Amendment is an example.

Historians are now pointing out errors in Alito’s draft too. I’ll link to some of that in “Further Reading,” below.

To me, though, all of these judicial assertions and corrections of complex historical facts and contexts—I mean when they go beyond necessary references to past cases—point to a fundamental problem—now a full-on disaster?—in how the constitutional federalist system conceives of the very idea of individual rights as a force in history, and history as a force in rights. I’m not saying I know how to fix it. But if everything has to be rationalized via storytelling about the past—via heritage, that is—then the relative accuracy of the storytelling may be a red herring. Blackmun’s boatload of history in Roe may be largely correct, contra Alito, but it does no more to preserve Roe from being overturned than Moody’s boatload did to preserve Twining.

I mean, even if abortion was not usually indictable in common law before the states started outlawing it, as Blackmun sought to show in Roe, what I always thought I got out of Roe is the idea that women will never enjoy political equality unless they can’t be prevented by law from availing themselves of an early-term abortion. In that sense, Alito is right. For thousands of years, and regardless of the history of abortion, political equality for women was anything but a fundamental principle. What was rooted in tradition was women’s inequality, and abortion on demand went to those roots and cut them.

In the United States in 1973, that is, came a critical moment in an epochal shift. So there’s some national history.

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Further Reading

Jennifer Schuessler’s Times piece on the history wars over abortion.

A reader linked to this in the comments section of my previous post: “Ben Franklin Put an Abortion Recipe in His Math Book.”

A Twitter thread by the historian Holly Brewer on Alito’s history errors.