[This is part of a new series where we examine a recent case interpreting a state constitution.]
Last month the Massachusetts Supreme Judicial Court—the highest state court in Massachusetts—decided a case that is a great reminder that these days winning a constitutional challenge all comes down to whether you can convince judges to say two magic words: “fundamental right.” If the first of those words is left off, it’s often game over. If the court says both, you likely prevail. And the difference between the two generally doesn’t make a lot of sense.
The case, Garcia v. Commonwealth, was an unusual application of “substantive due process,” which here simply meant the protection of a right not specifically enumerated in the Massachusetts Constitution. (Massachusetts, like several states, has no explicit “due process clause,” like those found in the U.S. Constitution’s Fifth and Fourteenth Amendments. But it has other provisions in its Declaration of Rights which arguably have a similar, if not much more expansive, meaning.) A criminal defendant (prosecuted for, among other charges, carjacking and assault) was found not guilty by reason of insanity. He had been off his medication and out of treatment, and according to expert testimony this was why he committed his wrongful acts. He also demonstrated that he had not done anything similar since the incident, and there was no reason to think he would. Nevertheless, the judge involuntarily committed him to a mental facility for 40 days for observation (during which time his handlers determined he didn’t pose a danger and shouldn’t be there).
On appeal, the Supreme Judicial Court first stated that the right at issue was the right “to be free from physical restraint.” And, no surprise, the court concluded this it is a “fundamental right,” pointing out the obvious fact that it’s a “massive curtailment” of liberty. As it is a “fundamental right,” strict scrutiny applies, which means the government’s actions are only constitutional if there is a compelling government interest. And since the defendant had not been found guilty and was not a danger to the public, there was no compelling interest involved. (The court didn’t even discuss what would have been the next question, whether the committal was narrowly tailored to furthering that interest.) Thus, his commitment was unconstitutional.
This all seems extremely defensible. Setting aside whether or not the defendant should have been found not guilty because of mental illness (its own complicated subject), if we accept a person hasn’t committed a crime, and isn’t a danger, then of course the state should not lock someone up. But it’s unsettling that the person only wins because the right to be free from physical restraint is a “fundamental right.” Why? Because lots of other very important rights are not deemed “fundamental” by the musings of our judges. And because those rights lack that adjective they receive extremely different treatment. So different that it is obvious all that is going on is judges are picking and choosing what rights they like in calling them “fundamental,” not engaging in real constitutional interpretation.
A few other rights are generally seen to be “fundamental.” Raising one’s children and various rights to sexual intimacy are examples. Also, some—but not all—rights that are specifically enumerated in the U.S. and state constitutions, such as the right to free speech and to practice one’s religion. But many other rights, unenumerated and enumerated, are not considered “fundamental.” The right to contract, for example, is specifically protected in the U.S. Constitution. The right to keep one’s property unless it’s taken for a public use is another. But both of those do not get “fundamental” treatment. And that doesn’t just mean they get, say, 50% of the protection that “fundamental rights” receive. Or even 20%. They get next-to-nothing treatment. It’s close to all or nothing under this approach.
Take a right we care a lot about at the Institute for Justice, the right to earn a living. As the U.S. Supreme Court has done in recent decades in interpreting the U.S. Constitution, Massachusetts’s highest court has denigrated that right and said it’s almost entirely up to the legislature to protect it. Yet, earning a living is, of course, a tremendously important part of almost everyone’s life. Not only does it allow people to put food on the table and a roof over their and their family’s heads, but it gives them fulfillment and purpose. We often forget that the phrase “the occupation of one’s calling,” which is how the right is often characterized, has a rich religious history. People often pursue an occupation because it is deeply meaningful to them—in either a religious or a secular sense—and ties them to their wider community and even family history.
And yet, because courts don’t use the magic word “fundamental” it doesn’t receive strict scrutiny. In Massachusetts and most (but not all) places, especially at the U.S. Supreme Court, it receives rational basis scrutiny. Which often means the state can do almost anything it wants and the court will say it’s constitutional. The state can’t lock you up for 40 days without strong evidence you’re likely to harm the public, but it can force you sit for countless hours of useless education, and spend thousands of dollars in tuition, to sell a box, or take an arbitrary test run by your future competitors in order to sell flowers.
Now, is the right to earn a living on the same level as the right to not be locked up? No, but it’s not nothing. Yet, that’s what the fundamental/non-fundamental paradigm says it is. Either the right at issue is just as important as the right not to be physically imprisoned, like the right to sexual intimacy is said to be, or it nearly doesn’t exist. There’s almost no in-between. And in that system the state is allowed to regulate with abandon over some of the central choices we make in our lives because they’re not on the lucky side of the “fundamental” line.
This is not a healthy way to protect our liberties. It’s time we turned away from this on/off view of constitutional rights and treated all exercises of our freedom with respect. That doesn’t mean the government should always lose, but it does mean that courts would engage with protecting liberty in each case, instead of simply applying the word “fundamental.”
Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.