For the Balkinization symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).
Cathleen Kaveny
Legend has
it that the British played a song called “The World Turned Upside Down” as the
laid down their arms in defeat at the last major battle of the Revolutionary
War. How could the colony have defeated the empire? It just didn’t make sense.
In an
admittedly exaggerated way, “The World Turned Upside Down” captured something
of my reaction when I read two recent invocations of the liberal Harm
Principle, which limits legitimate law, or at least legitimate criminal law, to
prohibiting actions that wrongfully harm another person.
On the one
hand, conservative Justice Samuel Alito assured his readers in Dobbs v. Jackson that the right to same
–sex marriage was not in danger just because the Court had overturned the right
to abortion. As a justification, he seems, at least tacitly, to invoke the Harm
Principle. “The exercise of the rights at issue in Griswold,
Eisenstadt, Lawrence, and Obergefell does not destroy a
“potential life,” but an abortion has that effect” (slip op. 218) So the
reason that the right to abortion can be overruled is that it harms a third
party (the fetus). The activity at stake in the other cases does not harm other
people—therefore they should not be overruled. How this reasoning interacts
with Justice Alito’s constitutional theory, and analysis of precedent, is not
entirely clear.
On the other
hand, eminent constitutional law scholar James E. Fleming explicitly distances
himself from the Harm Principle in his compelling new book, Constructing Basic Liberties: A Defense of
Substantive Due Process (2022). In
response to a charge made by Justice Scalia (accompanied by a parade of sexual
activities) Professor Fleming argues that “Clearly, the protection of the
rights of same-sex couples to intimate associations and to marry does not
‘effectively decree the end of all moral legislation.”
So on the surface at least, we have a conservative seemingly endorsing some version of the Harm Principle, and a progressive defending the use of the law to further moral purposes. Is the world really turned upside down? Or is something else going on? In this essay, I would like to examine the situation. In the first part, I will consider the Harm Principle. In the second part, I will look at both Alito’s and Fleming’s use of the Harm Principle. In part three, I will consider four bigger questions their invocations of the Harm Principle have raised for me.
The Harm
Principle
As Fleming
helpfully outlines in his book, the liberal Harm Principle is attributed to
John Stuart Mill’s On Liberty. In
more recent times, it was at the center of the debate between H.L.A. Hart and
Lord Patrick Devlin over the decriminalization of homosexual acts. In my view,
however, the most compelling and complete philosophical articulation of the
Harm Principle can be found in Joel Feinberg’s four-volume series on The Moral Limits of the Criminal Law.
Feinberg argues that the “liberal position” (which he advocates limits criminal
law to the Harm and the Offense Principles. A harm, in his view, is a setback
to a person’s interests that is accomplished by a violation of their rights.
So Feinberg
rejects many, many reasons for enacting criminal laws, including:
·
Legal paternalism—the view that it is a good reason
for the criminal law to target actions that cause physical, psychological, or
economic harm to the agent themselves.
·
Legal Moralism— the view that it is a good reason
for the criminal law to target activities on the grounds that they are
inherently immoral.
·
Moralistic Legal Paternalism— the view that it is a good reason
for the criminal law to target activity designed to prevent moral harm to
agents themselves
·
The Benefit to Others Principle—the view that it is a good reason
for the criminal law to enact a prohibition that works to the benefit of
others.
·
Benefit-Conferring Legal Paternalism—the view that it is a good reason to
for the criminal law to enact a prohibition that works to the benefit of the
agent.
·
Perfectionism—the view that it is a good reason
for the criminal law to enact a prohibition necessary for the improvement of
the character of a) citizens in general; or b) of the person whose liberty is
being limited. (Feinberg, Harmless
Wrongdoing, 1988).
Feinberg’s
framework would not permit the criminalization of all sorts of behavior,
including pretty much any consensual sexual behavior, behavior that corrupts
the agent (not only because they have consented, but because in consenting, the
agent has changed their values and was not harmed), and a whole list of
“free-floating evils” including violation of taboos, such as incest, discrete
and harmless immoralities, including masturbation, religiously tabooed
practices, moral corruption, evil thoughts, impure thoughts, false beliefs, the
wanton and capricious squishing of a small wiggly creature, the extinction of a
species. Also not to be protected is the loss of a traditional way of life,
whether that of Native Americans or middle-class WASPS.
So when we
talk about whether and to what degree we are enacting the Harm Principle, it
helps to be specific. If we are not liberals in the mode of Joel Feinberg,
which type of moral reasons will we consider legitimate to limit individual
liberty?
Justice
Alito and the Harm Principle
A glaringly
obvious problem in Justice Alito’s invocation of the Harm Principle is how to make
a principled distinction between overruling Roe
v. Wade in Dobbs v. Jackson from
overruling Obergefell v. Hodges in
the near future. One issue is that his constitutional method would seem to
indicate that both should be overruled (as Justice Thomas indicated). According to Justice Alito, constitutional
rights not enumerated in the text of the Constitution need to be “deeply rooted
in this Nation’s history and tradition” (Dobbs, slip. op 36,
citing Washington v.Glucksberg, 521 U. S., at 721). If anything, it appears that same-sex
sexual acts were less accepted throughout American history than abortion was. In
colonial times, sodomy was a felony. The idea of same-sex marriage would simply
not have occurred as a possibility to the Founders, or for that matter to the
generations preceding or following them.
So is there
a way in which Justice Alito’s remark might make more sense, perhaps by
focusing on a general analysis of how the law should treat harm, rather than
the Harm Principle? In certain respects, yes. Classical accounts of law have
always paid attention to harm. In his “Treatise on Law,” St. Thomas Aquinas
noted that the law does not prohibit all acts of vice, but chiefly those that
harm others. St. Augustine famously defended the toleration of houses of
prostitution rather than making the targets of the criminal law. But these venerable figures of history and
tradition do not get Justice Alito as far as he needs to go, even on his own
terms. It is one thing for Augustine and Aquinas to tolerate what they considered to be morally unacceptable sexual behavior.
It is another thing entirely to endorse
it by expanding a social institution to legitimate it as a constitutional
right. Even Feinberg’s articulation of the Harm Principle does not go so far—as
he emphasizes throughout this work, he is discussing the moral limits of the
criminal law, not the moral judgments that are made all the time in the
recognition of institutions and the incentivization of certain patterns of
behavior. (At the same time, I am fairly
confident that Feinberg would accept same-sex marriage on other grounds.
Professor
Fleming and the Harm Principle
In Constructing Basic Liberties, Professor
Fleming make an extensive and detailed argument that a commitment to (his
version) of substantive due process does not entail a commitment to a Millian
(or Hartian) version of the harm principle. In particular, it does not mean
that we cannot continue to legally prohibit a wide range of consensual sexual
behavior, including polygamy, despite the Harm Principle’s corollary: volenti not fit inuria. Professor
Fleming notes that his view of substantive due process is not value-free, as
some believe the Harm Principle to require, but rather that it instantiates the
values of liberty, equality, dignity, and democratic participation.[1]
It is
Professor Fleming’s argument that substantive due process would not require the
constitutional protection of polygamy that piqued my interest, and to honest,
aroused my skepticism. He argues that there is no chance that even a liberalish
Supreme Court would protect polygamy, but largely for practical reasons. First,
the U.S. population simply isn’t ready for it. There is no social movement that
has prepared the way for a right to plural marriage in the same way that the
gay rights movement prepared the way for Obergefell.
Second, there is some evidence that polygamy is detrimental to the children
involved in the practice, particularly the young boys who are cast out of
society by powerful older men seeking more than one wife. Third, and most
significantly, polygamy is harmful to certain key political and moral values,
such as the dignity of women and their full equality with men. It is on this basis that he vigorously argues
against Chief Justice Roberts’s dissent in Obergefell,
which contends that same-sex marriage is a greater departure from our
understanding of the institution of marriage than polygamy. According to
Professor Fleming, that contention is false, in large part because same-sex
marriage preserves (and extends) the value of equality, while polygamy can be
understood to demean and discount women.
Four
Questions
As I thought
about Professor Fleming’s argument about polygamy, four questions came to mind.
First, how do we determine what counts as harm, even defined in terms of the
harm principle, which focuses on physical, material, and financial harms)? It
is not, after all, as if the opponents of Obergefell
did not introduce their own studies showing that same-sex marriage was
detrimental to children, as well as to the institution of marriage itself. From
his discussion of polygamy, it appears that the harms Fleming would acknowledge
are fairly material in nature: He
writes, for example, “I want to emphasize that my concerns about polygamy are
not moralistic but are empirical and systemic ((Constructing Basic Liberties,167).
The harms are social, but they are also empirically assessable. In
contrast, it seems that social conservatives are more inclined to recognize
less tangible harms to morals and institutions, such as the losses involved in
a broadening set of family structures, particularly order and stability.
Second, if
we move beyond the harm principle to consider moral and institutional harms,
how do we describe the moral values legitimately at stake and the appropriate
shape of the institution to be defended? A highly influential article in
empirical psychology by Jesse Graham, Jonathan Haidt, and Brian A. Nosek has
argued that there are five political-ethical foundations at work in the United
States: harm, fairness, ingroup loyalty, authority, and purity. Political
liberals emphasize harm and fairness, while conservatives distributed their
concerns more evenly across all five foundational values.
Can the Constitution—or the Due Process Clause
in particular –be read to protect all five values, rather than just the two
liberal values? In other words, can there be a moderate-to-conservative version
of Substantive Due Process? Like a good progressive and liberal, Professor
Fleming emphasizes fairness as well as harm. Professor Fleming’s commitment to
equality would probably not qualify as legitimate under Feinberg’s version of
the Harm Principle. But the three other political foundations advocated by conservatives
would more fully activate the principles rejected by Feinberg: Legal
paternalism, Legal Moralism, Moralistic Legal Paternalism, The Benefit to
Others Principle, Benefit-Conferring Legal Paternalism, and Perfectionism.
Third, how
do we define the central values of the institution at stake? They change over
time. As Nancy F. Cott describes in her fascinating volume, Public Vows: A History of Marriage and the
Nation (2000), the nature and purpose of marriage has evolved over the past
two centuries. At the time of the Founding, the social purpose of marriage was mutual
support and fidelity, procreation of children and the orderly cultivation and
transmission of property to the next generation. Many people, including many
conservatives, still understand marriage largely in this way.
In today’s secular society, however, another
notion of marriage has become prominent, if not dominant: a companionate notion
of marriage, designed to secure physical and emotional intimacy for the
individuals participating in it. How one conceives of marriage determines
whether one thinks same-sex marriage or polygamy is the greater departure from
its purposes. For those, like Chief Justice Roberts, who emphasize the
procreation of children, same-sex marriage is the greater leap from traditional
heterosexual marriage. For those who emphasize personal intimacy and
egalitarian support, like Professor Fleming, polygamy seems the greater
stretch. So Professor Fleming and Chief Justice Roberts are both right in their
assessments – but they are drawing upon different understandings of marriage
for their measuring stick.
Fourth, and
most importantly, in our political and judicial context, when do the people or
the justices get a second bite at the apple with respect to the identification
of a right? This is a central question about Dobbs, which took away the constitutional right to privacy that
protects the right to abortion. Alito’s comment distinguishing Dobbs from Obergefell strongly suggests that the harm brought about by legalized
abortion was the major factor in the downfall of the abortion right.
That opinion
is contentious, of course. But even people who do not believe the fetus to be a
person may have qualms about the sheer number of abortions since Roe
(63 million), and may wish the right to be trimmed back to allow more
regulation. In other words, some people look at the consequences of the
right, and have second thoughts about its identification description.
But extinguishing
a constitutional right (as opposed to merely cutting it back) is a troublesome
phenomenon. Except in limited instances (such as crying “Fire!” in a crowded
theatre), rights operate as deontological “trumps” to broad consequentialist
considerations. Once we have identified a right, we do not muster consequentialist
arguments to dismantle it wholesale. Instead, we address the problems it raises
i other ways. If divorce causes problem for children, for example, we do not
ban divorce. We find other ways to get those children the help they need.
Or at least
this is the way we have proceeded in the past.
But will this be the case in the future, now that Dobbs has paved the way for the flat-out extinguishing of a right?
This is where my questions to Professor Fleming and Justice Alito converge. Professor
Fleming demonstrates how important the judgment that a particular activity or
practice does not cause harm is to
the decision to give it constitutional protection as a right under the Due
Process Clause. Justice Alito defends leaving
Obergefell untouched because, unlike
abortion, the practice of same-sex marriage does not cause harm. But he leaves
that claim unsupported by the citation of evidence. Social conservatives would
beg to differ.
So I began
to wonder: Is Justice Alito actually inviting arguments by social conservatives
that same-sex marriage has caused harm, so the right to marry someone of the
same sex should be rolled back? And what kinds of harm on Feinberg’s list would
count? And if so, how would Professor
Fleming respond? If, as he says, considerations of positive or neutral social
consequences are necessary (but not sufficient) to justify the creation of a
new right, do considerations of negative social consequences justify its
extinction after some time of testing?
And if considerations of broad social consequences can affect the
proclamation of a right under the due process clause, in what sense are we
talking about a “right” –at least about a “right” as a trump anymore?
I would like
to thank Professor Fleming for his tightly argued, wonderfully written book. I
would simply say that it is deeply engaging, but I hope that this essay is
testimony to my great interest and respect for his work.
M. Cathleen Kaveny is Darald and Juliet Libby Professor of Law at Boston College School of Law. You can reach her by e-mail at cathleen.kaveny@bc.edu.