An Ocean of Fundamental Rights

A friend and former colleague Ben Pugh has this piece, "Do We Have the Constitutional Right to Go to the Beach?" answering the question in the affirmative. Do read the piece. Ben is an excellent attorney, a constitutionalist, and analyzes cases closely. He lets the cases speak for themselves, speaking in his own voice only to bring them to focus on the question at hand.

"Do we have a Constitutional right to go to the beach?" It is worth a brief pause to linger over the words. Doing so might put us into the same pattern of thought as Theodore Sedgwick of Connecticut when considering whether we needed a Bill of Rights to express other Constitutional rights. “Why," he scoffed, "don’t you specify my right to get up in the morning, my right to walk down the street, my right to wear a hat?” The Constitution is such a significant thing, while walking, hat-wearing, and beach-going are such trivial things. Though it be rightful, there is something decadent about scarfing doughnuts off of fine china.

We would do well to remember there is worse threatened than mere legal error -- we face risks against which our lawyers can offer no counsel.

Consider how well has fared the Constitutionalizing of all rights. In 1989, after the U.S. Supreme Court upheld the right to burn the flag, the Today show interviewed a spokesman for the American Legion. Host Jane Pauley asked what the flag means to veterans. "The flag," the legionnaire replied, "is the symbol of our country, the land of the free and the home of the brave." Pauley pressed, however: "What exactly does it symbolize?" Recounting this episode in her book Rights Talk: The Impoverishment of Political Discourse, Mary Ann Glendon observed that the legionnaire "seemed exasperated in the way people sometimes get when they feel there are certain things that should not have to be explained." He finally replied, "It stands for the fact that this is a country where we have the right to do what we want." Glendon concludes:

Given time for thought, he almost certainly would not have expressed himself in that way. His spontaneous response, however, illustrates our tendency, when we grope in public settings for the words to express strong feelings about political issues, to resort to the language of rights.

It remains the law that we have a right under the Constitution to burn the flag which represents it. Yet we do not, it would seem, have a Constitutional right to imbibe sugary beverages, judging from the example of New York City. We in America still have a right to have doughnuts on fine china. And you even have a Constitutional right to smash the china. But, you mustn't eat the doughnuts.

So back to Ben's piece: Do we have a Constitutional right to go to the beach? Yes, I would agree. I have that right as much as my right to get up in the morning, to walk down the street, and to wear a hat. But this affords me no comfort. Judge Robert Bork, that great villain of modern Constitutional law, explained, in response to a law student hypothetical, why he would not conform to the fashion of finding more rights in the Constitution:

Once, after I had given a talk on the Constitution at a law school, a student approached and asked whether I thought the Constitution prevented a state from abolishing marriage. I said no, the Constitution assumed that the American people were not about to engage in despotic insanities and did not bother to protect against every imaginable instance of them. He replied that he could not accept a constitutional theory that did not prevent the criminalization of marriage. It would have been proper to respond that in any society that had reached such a degenerate state of totalitarianism, one which the Cambodian Khmer Rouge would find admirable, it would hardly matter what constitutional theory one held; the Constitution would long since have been swept aside and the Justices consigned to reeducation camps, if not worse. The actual Constitution does not forbid every ghastly hypothetical law, and once you begin to invent doctrine that does, you will create an unconfinable judicial power.

An all-encompassing theory of Constitutional rights is neither necessary nor sufficient for the survival of the American experiment. If we cannot continue to roughly agree we all have rights to wear hats and go to the beach, there is little help a court can offer. It remains for each to say: I will exercise my right to go to the beach, and if you stand in my way, then I will also exercise my right to knock off your hat.