Human Rights, Constitutional Rights

I re-read Charles Black's A New Birth of Freedom: Human Rights, Named and Unnamed, which rests human rights on the Declaration of Independence (life, liberty and the pursuit of happiness), the Ninth Amendment and the Privileges or Immunities Clause of the 14th Amendment. He provides some good stuff -- a defense of judicial review including given we don't really have majority rule, ways to reason out unenumerated rights in a common law way, how positive benefits are necessary for happiness (if mostly the responsibility of legislative action) and a realization that this is all imperfect, but human rights are worth it.

Black provides the usual shots at substantive due process, but again, I think it's logical -- due process involves the government not denying LLP without proper authority and limited government puts a certain floor on what authority it has.  It is an illegitimate "procedure" to substantively deny certain things.  But, it is good to have firm grounding on where these rights arise from, and the sources (including if one deems "God" of the DOI as metaphorical) provided are good ones.

Black is correct that the at times hesitant application of SDP is problematic. Still, judges are likely to be wary at times if told to overrule legislatures on "pursuit of happiness" grounds too.  The book also at times could have used an proofreader -- for instance, the Supreme Court did strike down on First Amendment grounds a law before 1937.  It also is not an in depth look at how the Supreme Court actually applied the provisions -- there are numerous citations to the DOI, a few to the 9A and some to the P/I (including concurring opinions) that could have been usefully cited.  Still, the book's message as a whole shines through.

The book cites Palko v. Connecticut as a misguided defense of substantive due process. It is ironic that the opinion speaks of "privileges and immunities" but given precedent relies on due process, including for freedom of speech.  One thing that caught my notice though given a recent post here on conscience is this:

If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor Justice would exist if they were sacrificed. This is true, for illustration, of freedom of thought, and speech.  Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations, a pervasive recognition of that truth can be traced in our history, political and legal. So it has come about that the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states, has been enlarged by latter-day judgments to include liberty of the mind as well as liberty of action. ^[n5] The extension became, indeed, a logical imperative when once it was recognized, as long ago it was, that liberty is something more than exemption from physical restraint, and that, even in the field of substantive rights and duties, the legislative judgment, if oppressive and arbitrary, may be overridden by the courts.

An extended excerpt is given to give a flavor of the defense of substantive due process. Note though the "freedom of thought" and "liberty of the mind." Is not a liberty of conscience clearly a component of this general principle?  The rule here would guard against thought control by use of sci fi means, but it also respects the ability to have the freedom to determine right and wrong based on personal conscience. This is a major reason abortion rights (among other things) are so compelling to me -- it is a "sacred choice" that should be largely a matter of personal conscience, often clearly based on religious faith. 

Human rights, including positive rights (such as to health care), are fundamental and broadly of constitutional dimension. Black's little book is a good read there, even if a few things should be taken with a bit of salt.