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Counter-Majoritarianism and the Protection of Individual Moral Decisions

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[This essay responds to a question about the proper role of judicial moral reasoning in a case where a terminally ill patient, Mr. Cohen, is challenging the constitutionality of a State prohibition on medical marijuana use. For the purposes of this question, I ignore federal drug law and any issues of federalism or conflict-of-laws.]
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To determine the constitutionality of the State’s marijuana prohibition as applied to a terminally ill patient such as Mr. Cohen, we must ask, first, whether it is appropriate for the Court to use moral reasoning in deciding this sort of claim, and second, what moral arguments support or undermine his claim. I will argue that judicial moral reasoning, while subject to legitimate criticism, is the most practical and effective way to read the Constitution in cases where the document and its history bear a number of potentially valid interpretations. Furthermore, the “right to be let alone” is a fundamental component of substantive due process under the Fourteenth Amendment and should be protected by the Court, even when the majority wishes otherwise. Moral arguments favoring this interpretation need not be premised on the existence of a “moral elite” whose judgment is superior to that of the majority, but rather on the necessity for counter-majoritarian checks within the democratic structure set out in the text of the Constitution itself. When a judge reasons on a moral basis, she does not substitute her moral judgment for the legislature’s, but protects the fundamental rights of individuals to make critical moral decisions themselves.

Critics of judicial moral reasoning object to the notion that judges should be anything other than “neutral” agents who apply the law created by duly-elected representatives of the people.^{1, 2} According to these “originalists”, a judge should not rule based on what they think is a preferable outcome, rather they must rule as the law demands.³ The law, in their understanding, is a fait accompli when it emerges from the legislature, and any confusion regarding its meaning is best resolved by examining the original intent of its drafters. When circumstances arise that were clearly outside the contemplation of the drafters, or societal values change such that the original intent no longer represents the will of the people, then it is beyond the judiciary’s power to make new law or strike down old; rather, they should wait for the legislature to perform its function. This balance forbids the Court from making major moral decisions, and claims to be the most accurate realization of the democratic ideals expressed in the Constitution and in the history of the United States.

This “originalist” conception, however, does not do justice to the intent of the framers, as evidenced by the very text which it claims to preserve.⁴ Ronald Dworkin’s call for a moral reading of the Constitution comes from the observation that the Constitution itself articulates broad moral principles that require judges to use moral reasoning.⁵ The framers knew the difference between specific language intended to effect a particular result and broad language intended to embody overarching moral principles. For example, the Third Amendment prohibition on the quartering of soldiers in houses during peacetime articulates, in clear language, exactly the government action that the framers intended to prohibit.⁶ On the other hand, the Fourteenth Amendment, rather than mandating a particular treatment of race consonant with the beliefs and values of the framers at the time, instead provides a set of principles for the Court and Congress to follow and develop. In order to make sense of these principles at all, Dworkin argues, a judge must exercise moral judgment. The text practically demands moral interpretation in order to be given meaning.

To be sure, this doesn’t give the judge free reign to rule based entirely on her personal conscience. Stare decisis, history, precedent, and the text of the Constitution itself are usually determinative in a case. In cases where multiple plausible interpretations exist within these constraints, however, Dworkin suggests that the Constitution is best interpreted through moral judgment. Dworkin’s critics claim that the judiciary must defer to the legislature when the Constitution does not, on its face, speak to the case at hand, but this would constitute an abdication of the special role which the Constitution provides, that is, the protection of certain liberties against the tyranny of the majority. In order to exert this protection, the Court must interpret the principles laid out in the Constitution; since these are moral principles, they are best interpreted with moral judgment.

Moral reasoning, when applied to claims like Mr. Cohen’s involving the right of an individual to certain medical treatment, inevitably results in claims that the Court has become politicized and lost any honest, principled basis for making decisions. Bork connects the moral mode of constitutional interpretation with the politicization of the Court that ultimately led to his ousting as Supreme Court nominee. His autobiographical narrative of the nomination process suggests that it was “[…] one battleground in a long-running war for control of our legal culture, which, in turn, was part of a larger war for the control of our general culture.”⁷ The issue at stake for Bork was the most legitimate method by which to read the Constitution. He views the street protests, the media flurry, and the political grandstanding directed against him as misguided attacks, since what he stands for as a judge is not a particular set of political views or judicial results but rather integrity in constitutional interpretation.

Bork never stops to consider, however, that perhaps he was not nominated for his advocacy of a particular mode of judicial reasoning, but instead specifically because of the results his jurisprudence would reach. Although he would prefer that the confirmation process be de-politicized, this is essentially impossible because its origin is rooted in the political decisions of the President of the United States. It is obvious that the President acts under enormous political pressure from various constituencies to achieve certain results; is it reasonable to believe that his decisions concerning the Court are uniquely shielded from political imperative? Although for Bork the battle concerned competing judicial methods, for the rest of the country, the battle concerned the potential results.

Eventually, Bork’s opponents organized enough grassroots pressure to defeat his nomination. For Bork, this evidenced a failure of democracy, as the Court slipped further into moral reasoning and accompanying politicization. Is a successful campaign founded on widespread popular dissent against a particular nominee necessarily a failure of democracy? Perhaps this is exactly how democracy is supposed to function. The strongest check the Constitution provides to the legislature against the judiciary is the power to reject judicial nominees. Since the legislature is ordinarily presumed, by originalists like Bork himself, to represent the will of the people, it would seems that the rejection of a particular Supreme Court nominee, whether on the basis of his mode of reasoning or the results he would likely reach, is actually an example of the Constitution’s democratic checks and balances functioning at their best.

If we are willing to accept a possible role for moral arguments in Constitutional claims, it still remains to be seen how these arguments might be applied to Mr. Cohen’s claim concerning access to palliative care prohibited by the state. In particular, we must decide whether medical care of this sort is a fundamental component of the liberty protected by the Fourteenth Amendment. In recent cases, the Court has relied heavily on history to determine whether or not a right is “fundamental.”⁸ Although it is reasonable to say that there is little basis, historical or otherwise, for a “fundamental right to smoke marijuana”, there is a deep-rooted tradition which Justice Brandeis describes as “the most comprehensive of rights and the right most valued by civilized men…the right to be let alone.”⁹ The right to decide what is best for oneself, when that decision will not adversely effect the interests of others, comprises perhaps one of the most fundamental liberties the Constitution guarantees and the Supreme Court is charged to uphold.

Although laws such as the one prohibiting the use of marijuana for medical purposes are often justified on the basis of their benefits to society at large, rather than on a paternalistic basis, it is hard to see these benefits as being anything other than pretextual in the case at hand. Mr. Cohen already has legal access to marijuana in pill form; any harm to society resulting from his access to the same substance through a different delivery system can only be understood as metaphysical at best. Although I might claim psychic pain simply because I have knowledge that my neighbor might be using marijuana for medical care, this is hardly the kind of harmful effects that social legislation ought to be preventing. Furthermore, the fact that some patients (who have the ability to swallow pills) can legally obtain the drug while others who need an alternative delivery system are denied access may simply fail the Court’s long-held rational basis test, thus violating the equal protection clause of the Fourteenth Amendment, even if cancer patients are not considered a “suspect classification.”

John Stuart Mill argued against the need for paternalistic or abstractly moralistic legislation in a democratic society, suggesting that the entity least likely to err when deciding what is best for a person is the person himself.¹⁰ If an individual’s acts are misguided but do not cause harm to others, Mill argues, then social disapproval alone will be sufficient punishment for the misguided acts. In the case of Mr. Cohen, we are not merely arguing about an individual’s rights to make potentially misguided or immoral choices, however, we are arguing about his very right to enjoy life at all, given the discomfort he experiences from the cancer medication. Furthermore, as his condition has been diagnosed as terminal, the choices he makes now determine how he will pass the remaining days of his life and how he will be remembered. These are extraordinary personal decisions that only Mr. Cohen himself is in a position to make.

If the Court accepts these moral arguments and refuses to apply this statute to Mr. Cohen, we should carefully take stock of what has actually happened. Critics will claim the Court has substituted its own moral judgment for that of “the people” and thereby undermined our democratic foundations. This characterization is deceptive, however, since the Court is not actually putting its moral imprimatur on marijuana use by the terminally ill. It is simply declaring the matter within the “rightful limit to the sovereignty of the individual over himself”.¹¹ So long as our actions do not cause harm to others, fundamental decisions about how we live and die, and what meaning we chose to ascribe to our lives, should be outside of the realm of both the judiciary and the legislature. Although these principles, embodied in the spirit of our Constitution, do require the Court to exercise moral reasoning, they ultimate exist to protect the people’s own individual rights to make these moral decisions for themselves.

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Footnotes

…¹

Robert H. Bork, The Tempting of America (The Free Press 1990).

… ²

Michael W. McConnell, Symposium: Fidelity in Constitutional Theory: The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin’s “Moral Reading” of the Constitution, 65 Fordham L. Rev. 1269 (1997).

…³

Robert Bork describes an encounter between Justice Holmes and Judge Learned Hand in which Hand urges Holmes, “Do justice, sir, do justice,” to which Holmes replies, “That is not my job. It is my job to apply the law.” Bork, supra n. 1, at 6 citing E. Sergeant, “Justice Touched With Fire,” in Mr. Justice Holmes 206-07 (F. Frankfurter ed. 1931); H. Shriver, What Gusto: Stories and Anecdotes About Justice Oliver Wendell Holmes 10 (privately printed 1970).

…⁴

“[W]e must never forget, that it is a constitution we are expounding.” McCulloch v. Maryland, 17 U.S. 316 (1819). The mode of analysis advocated by these originalists, while appropriate to statutory intrepretation, fails to capture the greatness evinced in one of Justice Marshall’s most famous opinions. The Constitution is not merely to be applied by the court, it must be expounded.

…⁵

Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press 1996).

…⁶

Id. at 6.

…⁷

Bork, supra n. 1, at 271.

…⁸

See Washington v. Glucksberg, 521 U.S. 702 (1997). Michael H. v. Gerald D., 491 U.S. 110 (1989). Bowers v. Hardwick, 478 U.S. 186 (1986).

…⁹

Bowers v. Hardwick, 478 U.S. 186, 199 (1986) (Blackmun, Brennan, Marshall & Stevens, JJ., dissenting). Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

…¹⁰

John Stuart Mill, On Liberty (originally published 1859), .

…¹¹

Id. at Ch. 4.

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