A little over a week ago, former Arkansas Governor Mike Huckabee commented on the idea of the government compelling people to limit the size of their Thanksgiving feasts. Huckabee said that such a rule would violate the Fourth Amendment right against unreasonable searches and seizures: “I mean, what kind of neighbor would call the police and say, ‘You know, there’s eleven people over there, you better go arrest them’?”
He is not an attorney, so far as I know, so his citation of the Fourth Amendment, if incorrect, is forgivable. After all, the Fourth Amendment guarantees one type of privacy, and the rights that protect family relationships protect another.
The mistake, if it is a mistake, resembles something that Judge Robert Bork said while a young Senator Joseph Biden questioned him at his confirmation hearings thirty-three years ago. Judge Bork was no novice to the law, so his statement and its resemblance to Mike Huckabee’s can tell us something about how we might go about reviving the entitlements that originalists who deny the existence of unenumerated rights have begun to dissolve.
Getting Borked
President Reagan nominated Judge Robert H. Bork to replace Justice Lewis F. Powell on the U.S. Supreme Court. Bork was an extremely conservative (or really, reactionary) scholar for his time, though he willingly submitted to probing questions about his views on various subjects, offering a stark contrast to the Senate confirmation process we most recently observed.
The Senate rejected Bork by a healthy margin, and Reagan selected another candidate who turned out to have smoked marijuana a few times and thus had to take his name out of the running (different times). Three was the charm, though, and Justice Anthony M. Kennedy served with distinction from 1987 until 2018. Justice Kennedy liked to tell the story of how Justice Blackmun had sent him a welcome note when Kennedy first arrived at the Court, “from one third choice to another, welcome aboard.” Meanwhile, Judge Bork’s last name became a verb among movement conservatives, signifying, according to William Safire, to “viciously attack a presidential nominee, blackening his name in an all-out effort to defeat his confirmation by the senate.”
One of the questions that came up when Judge Bork was testifying at his hearing had to do with the right of married couples to use contraceptives, as established in Griswold v. Connecticut in 1965. Judge Bork believed that Griswold was wrongly decided, and Senator Biden questioned him about his thinking on the issue. In response to one question about his unwillingness to protect the use of contraceptives, Bork said the following: “And Justice Douglas entered that opinion with a rather eloquent statement of how awful it would be to have the police pounding into the marital bedroom. And it would be awful, and it would never happen because there is the fourth amendment. Nobody ever tried to enforce that statute, but the police simply could not get into the bedroom without a warrant, and what magistrate is going to give the police a warrant to go in to search for signs of the use of contraceptives? I mean it is a wholly bizarre and imaginary case.” (emphasis added).
Senator Biden, the Chair of the Senate Judiciary Committee at the time, reminded Judge Bork that in Connecticut, the criminal code outlawed the use of contraceptives, and that meant that if police had probable cause to believe that a couple was using birth control, then officers could get a warrant and, consistent with the Fourth Amendment, arrest the couple for committing a crime. Bork did not think that would happen.
Like Mike Huckabee, Bork wanted to call upon the Constitution to protect people from governmental interference with their private family decisions. Huckabee thought the Fourth Amendment, associated with privacy from unwarranted governmental intrusion, could guard families spending the holidays together despite mandates for social distancing. Entering the home to search for or arrest violators would represent an unreasonable search or seizure, would it not? Huckabee was not foolish to think it might, but the Supreme Court has interpreted the Fourth Amendment as almost entirely procedural in nature: it does not grant people rights to do any particular thing in their homes; it just demands that police have reason to suspect illegal activity before entering the home or arresting its inhabitants. It has been an interpretation of the Due Process Clauses of the Fourteenth and Fifth Amendments that have told us what cannot be illegal (when a right is not enumerated against the federal government).
Justice Gorsuch a few weeks ago wrote a concurring opinion in Roman Catholic Diocese of Brooklyn v. Cuomo, effectively declaring that the right to bodily integrity is not fundamental because it does not appear in the text of the Constitution, by contrast to the free exercise of religion (which, to be precise, the text of the First Amendment protects only against “Congress” and not against a state official like Andrew Cuomo, so the Fourteenth Amendment is not that easy to avoid, Mr. Justice). Gorsuch makes his point by contrasting the right of bodily integrity and the right to religious freedom: “Mr. Jacobson claimed that he possessed an implied ‘substantive due process’ right to ‘bodily integrity’ that emanated from the Fourteenth Amendment and allowed him to avoid not only the vaccine but also the $5 fine (about $140 today) and the need to show he qualified for an exemption. 197 U. S., at 13–14. This Court disagreed. But what does that have to do with our circumstances? Even if judges may impose emergency restrictions on rights that some of them have found hiding in the Constitution’s penumbras, it does not follow that the same fate should befall the textually explicit right to religious exercise.” (emphasis added).
Justice Gorsuch made this point in response to the government of New York relying on Jacobson, a mandatory vaccination case, to argue that numerical limits on the number of people who can attend services in churches and synagogues to protect against more deaths of COVID-19 was constitutionally valid. It is only because there is no unenumerated right to bodily integrity, Justice Gorsuch suggests, that mandatory vaccination was acceptable. Religious freedom is something different. Presumably, if there is no right to bodily integrity, then the government could force C-sections on unwilling women or compel cancer patients to undergo unwanted therapies. Such force is just fine if the only right on the other side is one of bodily integrity. The entitlement to refuse unwanted medical treatment would no longer have any foundation in the Constitution, even as so many believe this entitlement to be among the most fundamental of all.
Unlike Justice Gorsuch, however, Mike Huckabee and Robert Bork give us a ray of hope. Each one wanted to believe that families had constitutionally protected privacy rights. For Huckabee, this privacy right would mean that if an individual wished to have her family over for Thanksgiving, she could do so without regard to some invasive mandate by the government. He situated the right in the Fourth Amendment because he presumably shares the conservative allergy to substantive due process rights. And for Judge Bork, he found discomfiting the notion that police could enter a home to arrest people for using contraceptives. So he too reached for the Fourth Amendment. I have argued that the Fourth Amendment ought to protect substantive rights to privacy, and the Court has flirted with the idea as well. But what we see here is the following reasoning: families must have privacy from the government, so let us be creative in identifying such privacy somewhere in the Constitution. With that creativity, the end of unenumerated rights may ultimately prove less final than it might first appear.