The courts for some time have recognized a constitutional right of various unenumerated "liberties" though tend to be more concerned with a limited group of them. During the so-called "Lochner Era," e.g., a "freedom of contract" was a major matter of dispute while generally speaking the courts allowed a broad swath of regulations (including involving free speech etc.) if they were basically reasonable. This shows that the assumption that (for good or ill) that was a sort of libertarian period much more free of government regulation is misguided.
Later on, once a right of privacy was firmly found to be a freestanding right [some recognition of a right to privacy was present by the late 19th Century when the famous law review article was written by Brandeis and Warren, but the contraceptives ruling is often somewhat misleadingly cited as the key point here], the Supreme Court started to limit it particularly to "procreation, marriage, and family life." The right to privacy had a potential to be more open-ended but (at least at first, speaking here about the federal constitutional flaw since some states were more open-ended) conservative membership in the 1970s made sure to draw a line. This was even in cases that some would argue fit into that general category such as homosexual activity. A case such as Stanley v. Georgia (obscenity in the home) also was basically limited to its facts, not its wider implications.
Kelley v. Johnson from the mid-1970s was one such line drawing cases. The case involved what might seem a rather trivial matter: a liberty interest of police officers to have their hair a certain length. The government at oral argument assumed for the sake of argument that an extreme regulation -- such as shaving the head -- might be deemed unreasonable. Overall, the six justices (Justice Stevens not involved) had an easy time of it, seeing it as involving the power of the government to regulate its own employees. Justice Powell had a brief concurring opinion that can be quoted in its entirety:
Hair length was a matter that popped up in loads of lower court opinions in the 1960s and early 1970s though only Justice Douglas appeared to want to take a case to address the matter. As he noted, such a matter of personal appearance involves the right to privacy and even provides a good fit when examining 1920s cases that are often cited in this area. The Supreme Court held then that parents had control one their children's upbringing, including not needing to send children to public schools. It compared this to the regimentation of upbringing in Ancient Sparta. The same could be said there in regard to personal appearance. As Douglas noted: "One's hair style, like one's taste for food, or one's liking for certain kinds of music, art, reading, recreation, is certainly fundamental in our constitutional scheme—a scheme designed to keep government off the backs of people."*
Hair length and related issues on some level might be deemed somewhat trivial, but its symbolic nature (down to the naming of a musical) is telling here. This was true over time, including "bobbing" hair, which was the subject of a well known short story arising from the 1920s practice. The issue arose over the years internationally as well, including in determining what sort of thing is obscene or not. As noted by the dissent in this case, matters of "privacy, self-identity, autonomy, and personal integrity" arise. The First Amendment interests are apparent too, matters of religion, the counter-culture, ethnic expression and so forth resulting in various controversies over the years. This also overlaps with equal protection concerns.
Thus, the majority reaches by saying that previous cases have little to say about this issue. The dissent cites a case that in an open-ended way recognized liberty interests over what one eats, reads and wears. "If little can be found in past cases of this Court or indeed in the Nation's history on the specific issue of a citizen's right to choose his own personal appearance, it is only because the right has been so clear as to be beyond question. When the right has been mentioned, its existence has simply been taken for granted. " But, one in no way needs even to go that far.
The dissent Justice Powell cited is the by now basically authoritative open-ended recognition of liberty by Justice Harlan in his dissent involving use of contraceptives. It recognizes some general right of privacy while leaving open some significant discretion to regulate, if one that recognizes as well that the specific contours here would develop over time. This fits the concurrence's purposes well since there we were dealing with private life while here public employees were involved. Again, the comment dropped by Justice Rehnquist, known to toss in those little nuggets as much as Justice Brennan did from the other direction, is still there.
I am not aware of the Supreme Court ever dealing with the issue of hair length in any other context. As noted, it touches upon multiple constitutional provisions and this was seen back when the issue was cutting off the hair of Chinese (which Justice Field flagged on circuit back in the 19th Century). Well, there was a case by the Roberts Court that dealt with beard length in prisons, holding a federal law protecting religion covered inmates whose faith required at least minimal beards. A 1980s case held in a split decision that the First Amendment itself did not provide a person in the military the right to cover the top of their head with a yarmulke. Hair issues continue to be a matter of concern in the lower courts such as in the employment context raising gender, racial and religious issues at the very least.
Might be leaving something out here, but this is a case where the Supreme Court does not decide a range of cases that very well might touch upon serious constitutional questions. For instance, the usage of "under God" has consistently been avoided, the case brought by Michael Newdow not decided on the merits for standing reasons. The lengths this is taken is seen by how the Second Amendment case (at least for now) still coming up is except for a minor one the first for about a decade. OTOH, there are hundreds (perhaps over a thousand) of Second Amendment cases decided by the lower courts. This is on some level a good thing since it avoids needlessly fixing in stone things from up high that can benefit from more discretion.
Still, we often are dealing with matters of some importance and personal discretion in appearance is one such issue. The best approach there was to skip that little extra bit and rest on it being a matter of public employment. This would not avoid various disputes but the more open-ended language needlessly dishonored an important personal matter.
---
* The final little kicker there goes too far.
Liberal policies sometimes are challenged as violating limited government, but the Constitution expanded the power of the national government. In various ways, it also expands government power in general -- the 21A, for instance, expressly gives power to states to limit liberty involving alcoholic beverages. The Constitution obviously also balances this with means to check governmental power though even there often it is power v. power, not specifically limits on all power.
Thus, the discussion here is often about trying to fit a certain matter such as control over one's personal appearance in a slot that does limit governmental power. The slot might be general (due process/9A privacy argument) or specific (1A). But, a mere libertarian argument is flawed.
Later on, once a right of privacy was firmly found to be a freestanding right [some recognition of a right to privacy was present by the late 19th Century when the famous law review article was written by Brandeis and Warren, but the contraceptives ruling is often somewhat misleadingly cited as the key point here], the Supreme Court started to limit it particularly to "procreation, marriage, and family life." The right to privacy had a potential to be more open-ended but (at least at first, speaking here about the federal constitutional flaw since some states were more open-ended) conservative membership in the 1970s made sure to draw a line. This was even in cases that some would argue fit into that general category such as homosexual activity. A case such as Stanley v. Georgia (obscenity in the home) also was basically limited to its facts, not its wider implications.
Kelley v. Johnson from the mid-1970s was one such line drawing cases. The case involved what might seem a rather trivial matter: a liberty interest of police officers to have their hair a certain length. The government at oral argument assumed for the sake of argument that an extreme regulation -- such as shaving the head -- might be deemed unreasonable. Overall, the six justices (Justice Stevens not involved) had an easy time of it, seeing it as involving the power of the government to regulate its own employees. Justice Powell had a brief concurring opinion that can be quoted in its entirety:
I concur in the opinion of the Court and write to make clear that, contrary to the concern expressed in the dissent, I find no negative implication in the opinion with respect to a liberty interest within the Fourteenth Amendment as to matters of personal appearance. See Poe v. Ullman, 367 U. S. 497, 541-543 (1961) (Harlan, J., dissenting). When the State has an interest in regulating one's personal appearance, as it certainly does in this case, there must be a weighing of the degree of infringement of the individual's liberty interest against the need for the regulation. This process of analysis justifies the application of a reasonable regulation to a uniformed police force that would be an impermissible intrusion upon liberty in a different context.The dissent is not really wrong to be concerned about recognition of the right when the majority opinion (citing the limited collection of categories I referenced) somewhat gratuitously (not really; it was making a point) noted early on in comparison: "But whether the citizenry at large has some sort of "liberty" interest within the Fourteenth Amendment in matters of personal appearance is a question on which this Court's cases offer little, if any, guidance." It granted such a liberty was present since the regulation was still acceptable as a regulation of public employment. But, even there, a matter of religious faith or something that will also affect private life too would probably have been handled by one or more of the justices more carefully.
Hair length was a matter that popped up in loads of lower court opinions in the 1960s and early 1970s though only Justice Douglas appeared to want to take a case to address the matter. As he noted, such a matter of personal appearance involves the right to privacy and even provides a good fit when examining 1920s cases that are often cited in this area. The Supreme Court held then that parents had control one their children's upbringing, including not needing to send children to public schools. It compared this to the regimentation of upbringing in Ancient Sparta. The same could be said there in regard to personal appearance. As Douglas noted: "One's hair style, like one's taste for food, or one's liking for certain kinds of music, art, reading, recreation, is certainly fundamental in our constitutional scheme—a scheme designed to keep government off the backs of people."*
Hair length and related issues on some level might be deemed somewhat trivial, but its symbolic nature (down to the naming of a musical) is telling here. This was true over time, including "bobbing" hair, which was the subject of a well known short story arising from the 1920s practice. The issue arose over the years internationally as well, including in determining what sort of thing is obscene or not. As noted by the dissent in this case, matters of "privacy, self-identity, autonomy, and personal integrity" arise. The First Amendment interests are apparent too, matters of religion, the counter-culture, ethnic expression and so forth resulting in various controversies over the years. This also overlaps with equal protection concerns.
Thus, the majority reaches by saying that previous cases have little to say about this issue. The dissent cites a case that in an open-ended way recognized liberty interests over what one eats, reads and wears. "If little can be found in past cases of this Court or indeed in the Nation's history on the specific issue of a citizen's right to choose his own personal appearance, it is only because the right has been so clear as to be beyond question. When the right has been mentioned, its existence has simply been taken for granted. " But, one in no way needs even to go that far.
The dissent Justice Powell cited is the by now basically authoritative open-ended recognition of liberty by Justice Harlan in his dissent involving use of contraceptives. It recognizes some general right of privacy while leaving open some significant discretion to regulate, if one that recognizes as well that the specific contours here would develop over time. This fits the concurrence's purposes well since there we were dealing with private life while here public employees were involved. Again, the comment dropped by Justice Rehnquist, known to toss in those little nuggets as much as Justice Brennan did from the other direction, is still there.
I am not aware of the Supreme Court ever dealing with the issue of hair length in any other context. As noted, it touches upon multiple constitutional provisions and this was seen back when the issue was cutting off the hair of Chinese (which Justice Field flagged on circuit back in the 19th Century). Well, there was a case by the Roberts Court that dealt with beard length in prisons, holding a federal law protecting religion covered inmates whose faith required at least minimal beards. A 1980s case held in a split decision that the First Amendment itself did not provide a person in the military the right to cover the top of their head with a yarmulke. Hair issues continue to be a matter of concern in the lower courts such as in the employment context raising gender, racial and religious issues at the very least.
Might be leaving something out here, but this is a case where the Supreme Court does not decide a range of cases that very well might touch upon serious constitutional questions. For instance, the usage of "under God" has consistently been avoided, the case brought by Michael Newdow not decided on the merits for standing reasons. The lengths this is taken is seen by how the Second Amendment case (at least for now) still coming up is except for a minor one the first for about a decade. OTOH, there are hundreds (perhaps over a thousand) of Second Amendment cases decided by the lower courts. This is on some level a good thing since it avoids needlessly fixing in stone things from up high that can benefit from more discretion.
Still, we often are dealing with matters of some importance and personal discretion in appearance is one such issue. The best approach there was to skip that little extra bit and rest on it being a matter of public employment. This would not avoid various disputes but the more open-ended language needlessly dishonored an important personal matter.
---
* The final little kicker there goes too far.
Liberal policies sometimes are challenged as violating limited government, but the Constitution expanded the power of the national government. In various ways, it also expands government power in general -- the 21A, for instance, expressly gives power to states to limit liberty involving alcoholic beverages. The Constitution obviously also balances this with means to check governmental power though even there often it is power v. power, not specifically limits on all power.
Thus, the discussion here is often about trying to fit a certain matter such as control over one's personal appearance in a slot that does limit governmental power. The slot might be general (due process/9A privacy argument) or specific (1A). But, a mere libertarian argument is flawed.
No comments:
Post a Comment
Thanks for your .02!