Fundamental Rights

History of a Constitutional Doctrine

Milton Konvitz

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351518314
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

One of the most important modern developments in American constitutional law has been the extension of the Bill of Rights to the states. The most important guarantees of the first eight amendments have been incorporated into the Due Process Clause of the Fourteenth Amendment, along with the doctrine that these are rights that are so "fundamental" that any restriction is subject to judicial "strict scrutiny." The process has nationalized fundamental rights, giving them a preferred dignity and majesty. In this volume, the renowned constitutional scholar, Milton Konvitz, traces the development of fundamental rights from the early days of American jurisprudence through twentieth-century cases involving the right to privacy, racial discrimination, voting rights, censorship, and abortion laws.

In Konvitz's astute view, the Bill of Rights in the Constitution of the United States, like the Ten Commandments, places no priority among protected or guaranteed rights. He argues that values, ideals, rights, liberties, and privileges need to be placed in a hierarchical order or scale. The Supreme Court, acting on a case-by-case basis, has slowly and cautiously moved to designate some rights as superior to others. This idea that some rights are of a "fundamental" nature, while others are not, can be traced back to the early days of the nation's government. Konvitz shows that there may be said to be not one, but two or even three bills of rights, one for the Federal government and one for the States. Still another, may be an unwritten but evolving Bill of Rights. The Court has recognized rights or liberties that are in no written constitution, as for example, a right to marry, a right to have a family, a right to choose education of one's children in a private, even a religious, school, rather than a public school. In an illuminating fashion, Konvitz, whose writings have been cited in Supreme Court decisions, traces the controversial and very uneven line of development of

1
The Idea of Fundamental Rights: Is There a Hierarchy of Constitutional Rights and Liberties?

In the famous second Flag Salute Case¹ the Supreme Court held that children of Jehovah’s Witnesses, who believed that saluting the flag was a violation of the first of the Ten Commandments, could not constitutionally be compelled to participate in a daily flag salute ceremony at school, required by an act of the West Virginia Legislature. The decision was put on the broad ground that the compulsory flag salute was an invasion of the sphere of intellect and spirit—a sphere protected by the First and Fourteenth Amendments. National unity and patriotism may be fostered by persuasion and example, but there may be no coerced uniformity. Justice Felix Frankfurter, in an impassioned opinion, dissented. The legislation, he said, may be unwise, but the remedy for that should be in the legislature and not in the courts. Much legislation affecting freedom of thought and speech, he said, “should offend a free-spirited society” and is yet constitutional. The Court, he argued, has no constitutional power to give more weight or dignity, to place a higher value, on some rights guaranteed by the Bill of Rights than on others. There is nothing in the Constitution that gives the Court authority to be a more zealous guardian of some rights rather than of some others. “Our power,” he said,

does not vary according to the particular provision of the Bill of Rights which is invoked. The right not to have property taken without just compensation, has, so far as the scope of judicial power is concerned, the same constitutional dignity as the right to be protected against unreasonable searches and seizures, and the latter has no less claim than freedom of the press or freedom of speech or religious freedom.

Each specific right or liberty guaranteed by the Constitution must be, said Frankfurter, “equally respected,” and the function of the Court “does not differ in passing on the constitutionality of legislation challenged under different Amendments.”

The judicial history of the half-century since Justice Frankfurter wrote his dissenting opinion is that Frankfurter sadly misdirected his remarkably keen intellect and capacious eloquence. American constitutional law recognizes that, indeed, some rights and liberties enjoy more dignity than others, that some have a higher rank than others and deserve a greater degree of vigilance and protection than do others. I wish to show that this development is philosophically and jurisprudentially justified, and that its roots go further back than the New Deal or the Warren Court.

I.

In the theophany scene at Sinai, the Israelites heard the Ten Commandments.² The five commandments that are directed to relations between person and person are not listed in any special order of ranking in importance. One commandment simply follows another. Yet would anyone argue that the eighth commandment, “Neither shall you steal,” is equal in importance to the sixth commandment, “You shall not kill”?

Although as formulated and promulgated, all five commandments appear to have equal status, the Mosaic legislation in fact does not treat them as equals, witness the fact that the punishment for murder is death, while for theft of property the penalty is restitution.³ Obviously, there is in the Mosaic code of laws an implied hierarchy of values—life is more important than property, though this fact cannot be adduced from a mere reading of the Ten Commandments in isolation from the rest of the Pentateuch.

Indeed, as soon as a reflective mind faces a large body of legal enactments, or religious precepts, or moral maxims, or the world of phenomena, it feels compelled to organize them, to bring them into some order in which first things come first. Thus, e. g., we find in the Mishna (the authoritative code of rabbinic enactments from the 3rd century B. C. E. to the 3rd century C. E.) a formulation of the three beliefs that are to be considered basic in Judaism; namely, the existence of God, revelation, and a belief in retribution after death.⁴ When the ancient rabbis considered the vast array of moral prohibitions, they selected three as the most important of all; namely, idolatry (which they associated with immoral pagan practices), incest (or adultery), and murder, and provided that one must not commit any one of these transgressions even under threat of death.⁵ When they considered which moral laws ought to be held fundamental for all mankind (pagans or Jews, men or women), they listed seven commandments which they called the Seven Laws revealed to the descendants of Noah, the Noahide Laws.⁶

The leading philosophers and theologians of Judaism concerned themselves with this problem of fundamental laws, principles or doctrines. Philo of Alexandria (20 B. C. E.–50 C. E.) found that there are eight principles that are essential for Judaism.⁷ In the Middle Ages, Maimonides (1135–1204) found thirteen articles of faith which he considered the “roots” or the “fundamentals”—the ikkarim or yesodot—of the religion.⁸ Hasdai Crescas (1340–1410) had a more elaborate schema. He held that Judaism has three root principles, below which are six fundamentals of the faith. Then there are eight true beliefs, which are fundamental but not indispensable, and finally there are three true beliefs that are related to specific commandments.⁹ Joseph Alba (1380–1444), in his work with the significant title Sefer ha-Ikkarim (Book of Principles), found only three root principles, from which flow derivative roots, and of an inferior order are six beliefs or emunot.¹⁰

Because Christianity needed to differentiate and separate itself from Judaism, and because it aggressively sought out proselytes, it early in its career placed heavy emphasis on creed, dogma, articles of faith, that would define orthodoxy and reduce the attractiveness of heresies. An encyclopedic survey of public confessions which have been or still were authoritative in various sections of the Christian Church in 1928 found that they exceeded 150!¹¹ Perhaps the earliest was the Old Roman Creed (c. 100), that consisted of only twelve articles. In the third century came the Creed of Antioch. In the same century there was also the Creed of the Didascalia. In the fourth century the Nicene Council produced the Nicene Creed. The seventh century saw the promulgation of the Athanasian Creed. Looking back over the history of the great creeds, “one is amazed at the comparative simplicity of the great truths thus singled out by the common sense of the Church, through the centuries, as of primary importance.”¹²

This is precisely the point that interests us: the search for and singling out what is of prime importance—the truths or values that are indispensable, that are the foundation stones of the superstructure; that there is an order among ideas, and a ranking among them.

II.

The impulse, both speculative and practical, that drives a thinker to seek the basic, fundamental elements of any reality can be clearly seen in the development of pre-Socratic philosophy or science. As Aristotle understood their teachings as they had been transmitted to him, the question that the early Ionian philosophers asked was: What is the basic stuff of which the world is composed?¹³ They endeavored to find the answer in a single principle that would account for all qualities and all changes. Thales assumed that the fundamental principle is water. Anaximenes thought that the primary substance is air. The Pythagoreans asserted that numbers are the primary causes of things. Heraclitus taught that fire is the basic principle of substance. Leucippus and Democritus taught that numberless atoms are the fundamental stuff of which the world is made.¹⁴

The urge or incentive that drove the ancient philosophers to seek the elements fundamental to all reality is one that contemporary scientists share with their intellectual forebears. This drive for metaphysical or scientific fundamentals is not essentially different from the compulsion felt by theologians to formulate the essentials or primary, fundamental beliefs of a religious faith. And what compels theologians, metaphysicians, philosophers and scientists to seek fundamental truths also drives moral philosophers to try to formulate the fundamental moral qualities of man.

Thus, in classical Greek moral philosophy, as Plato implies in the Republic, four virtues were thought to be fundamental; namely, wisdom, courage, temperance, and justice. Plato adopted these virtues as comprising the essence of morality, as the primary qualities of virtue, which is the health of the soul. The Stoics adopted the Platonic canon of the four cardinal virtues, and made them the center of their teaching. (Cicero in De Officiis became for the Renaissance a prime source of the knowledge of the Platonic/Stoic virtues.) Early Greek and Latin Fathers of the Catholic Church adopted these pagan doctrines and gave them a Christian habitation and a name by attaching them to the Pauline triad of faith, hope, and charity. The result was that in time the Church taught that there are seven chief virtues: the four cardinal virtues that were known to pagans and that were now labeled as “natural,” and the three preached by Paul and claimed to be “supernatural.” Thomas Aquinas, however, adopted and assimilated the cardinal “natural” virtues and spoke of them, too, as supernatural, derived from the divine gifts of love.¹⁵

III.

From this brief review of the history of ideas in theology, philosophy, morality, and science it should be clear that a disciplined mind is forced to try to penetrate through a complex mass of ideas in order to reach concepts or propositions that point up the essential character of the mass of facts or ideas, disclosing what is relevant and what is irrelevant, what is important and what is only marginal, what is indispensable and what can be rejected. Indeed, as Socrates, Plato, and Aristotle contended, this is the very nature of conceptualization or thought, for a concept is an idea of something formed by mentally combining those characteristics that distinguish it from other things. This is the mental, intellectual process whether we try to define chair, ant, man, or, say, Christianity, virtue or goodness. As the process of conceptualization becomes more complex, as we try to reach the essential nature of, e. g., Judaism or Christianity, we feel compelled to find the root ideas without which other ideas would not follow, ideas that are basic as a foundation is basic to a house, a basic principle that serves as the groundwork on which the superstructure can be erected, or the primary idea from which other ideas can be deduced.

As used in the law, however, the term “fundamental” does not always have a precise meaning. It is at times used in an honorific sense, to underscore the importance of the idea or value in question, and it may suffice for the purpose and in the context in which it is used. It may contribute some intelligibility to a classification, it may make some decisions more predictable; it may help bring decisions or principles into a larger order of consistency. It may be used, not to describe or explain, but to guide conduct. It may express a wish or hope.¹⁶

In any case, we should bear in· mind the wise counsel of Aristotle, that in studying this subject, we must be content if we attain “as high degree of certainty as the matter of it admits. The same accuracy or finish is not to be looked for in all discussions any more than in all the productions of the studio and workshop.”¹⁷ Besides, as William James noted, there is something to be said in favor of the vague, the imprecise, the indefinite.

IV.

When we turn to a consideration of the Bill of Rights of the United States Constitution, we are at once faced with the identical problem that we saw as we looked at the Ten Commandments. The First Amendment guarantees freedom of speech, press, assembly, religion, and petition. The Seventh Amendment provides that in civil suits, where the value in controversy exceeds twenty dollars, the right of trial by jury shall be preserved. Are these guarantees of equal dignity and worth? Despite the eloquent argument in Frankfurter’s dissenting opinion in the second ...

Table of contents

• Cover Page
• Fundamental Rights
• Copyright Page
• Contents
• Preface
• 1. The Idea of Fundamental Rights: Is There a Hierarchy of Constitutional Rights and Liberties?
• 2. “Every Right and Privilege Belonging to a Freeman”
• 3. The Bill of Rights: A Bill of Fundamental Rights
• 4. Where Do We Find Fundamental Rights?
• 5. Are There Two Bills of Rights?
• 6. “Liberty” Beyond the Bill of Rights
• 7. Fundamental Rights and Judicial Review
• 8. Conclusion
• Index of Cases
• Index of Supreme Court Justices
• Index