I just uploaded an updated version of Pandora’s Box to SSRN. The article is now up to 160 pages. I added an entire new section on Footnote Four on page 125. Here is an excerpt:
Footnote Four made two primary contributions to constitutional law. First, it provided for more exacting scrutiny of laws that touch “discrete and insular minorities.” This provision served to expand liberty, and reinforce the representation of those least able to engage in the political process. Second, the footnote bifurcated constitutional rights. The first sentence reads: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” Implicit in this restriction on the presumption of constitutionality for legislation touching enumerated rights is a broadening of the presumption of constitutionality for legislation affecting unenumerated rights.
In modern Supreme Court jurisprudence, Footnote Four provides great protection to enumerated rights, as well as to “fundamental rights,” and grants these rights the strong protection of strict scrutiny. Rights not listed in the Bill of Rights are not granted any meaningful protection, and are afforded mere rational basis review. Footnote Four thus renounces the liberties protected by the Ninth and Fourteenth Amendments as inferior and not deserving of protection. In contrast to the previous component of Footnote Four, this provision restricts liberty in that unenumerated rights receive virtually no protection from the courts.
Nevertheless, a close inspection of the Supreme Court’s use of Footnote Four over the last seven decades suggests that it is the footnote itself that has been bifurcated, not the rights it comprehends. A search of every citation to Footnote Four over the last 72 years reveals that the former provision, regarding minority rights, has been cited by the Supreme Court at least 23 times. These citations have primarily been used in cases dealing with race-based classifications, sex-based classifications, alienage classifications, age-based classifications, voting rights cases, and discrete and insular groups in need of assistance with the political process.
The second provision, however, bifurcating our rights, has been cited sparingly by the Supreme Court. While cases from the 1930s through the 1970s routinely recognized the bifurcation of rights, during the last three decades, only Justice Stevens has used Footnote Four to recognize this constitutional distinction. Other modern justices have seldom if ever discussed the bifurcation of rights and broad presumption of legislative constitutionality to the degree Justice Stone did.
The Supreme Court’s growing preference for the first part of Footnote Four and the weakening of the second reflects an inherent tension in Stone’s classic formulation. That is, the Court has narrowly construed the power-granting portion of Footnote Four, while broadly construing the liberty-granting portion. It is thus Footnote Four itself that has been bifurcated, rather than the rights it discusses. The provisions that enhance liberty have been dutifully cited, while those restricting liberty have been minimized.
What brings this departure from Footnote Four into focus are the Supreme Court’s recent cases dealing with the recognition of unenumerated rights. The Court has considered these freedoms in the broader sense of “liberty” rather than through the Footnote Four parlance of fundamental or non-fundamental rights. Despite the fact that they were construing unenumerated rights not to be “within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth,” the Court failed to discuss the non-exacting judicial scrutiny unenumerated rights receive. The Court’s failure to cite Carolene Products in Glucksberg reinforces this hypothesis. Liberty was to be protected regardless of whether it is “fundamental” or “non-fundamental.” What mattered instead was that the protected liberty be deeply rooted in our nation’s history and traditions. A right deemed non-fundamental under Foonote Four can thus still be a protected liberty under Glucksberg.
In light of the Court’s post-Glucksberg practice in considering unenumerated rights, we contend that the modern Glucksberg framework has repealed sub silentio Footnote Four’s bifurcating principles. If an unenumerated right is in fact deeply rooted in our nation’s history and traditions, it is protected under Glucksberg, irrespective of Footnote Four considerations. This is the test the Court adopted in Glucksberg, and the test the Court should adopt in McDonald.
I will flesh this idea out further in Josh Blackman, Equal Protection from Eminent Domain. Protecting the Home of Olech’s Class of One, 56 Loyola L. Rev.____ (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1329344