The Texas Observer on “Don Willett’s Quiet Revolution,” and a Discussion of State and Federal Constitutional Law

November 20th, 2016

Eric Benson of the Texas Observer wrote a lengthy profile of Justice Don Willett of the Texas Supreme Court. I spoke with Eric for about an hour over the past month, explaining to him the contours of originalism, judicial engagement, and of Justice Willett’s decision in Patel.

I am quoted in two places. First, about my friend Justice Willett as a person–he’s exactly as he seems on Twitter:

Such Dad humor served with a side of corn makes Willett sound like a 2016 update of Ward Cleaver — a generous sitcom patriarch who happens to decide legal cases in his spare time — and when you talk to those who know him, that’s more or less the picture you get of the of offline man.

“He loves Texas, he loves Americana, he loves bacon,” said Willett’s friend Josh Blackman, a professor at Houston College of Law.

Second, about how Justice Willett’s engagement could pose a threat to the Trump Administration’s excesses:

But Willett could also prove to be an unexpected thorn in the side of a president eager to enact his agenda by fiat, particularly if he reaches for new and sweeping “police powers.” “If Donald Trump recognized that Willett would invalidate regulations that his government passed, he wouldn’t be so keen on him anymore,” Blackman, the Houston College of Law professor, told me. “I think there could be buyer’s remorse.” If Willett or another like-minded judge ascends to the court, the Trump presidency may very well put to the test whether judicial engagement is a coherent constitutional philosophy that defends individual liberties, or is, as its opponents allege, merely a conservative policy prescription with a hazy legal justification.

I do have one substantial grievances with the piece: it fails to discuss the fact that Patel was decided not under the 14th Amendment, but under the Texas Constitution. For example:

But starting in the 1980s, and especially during the presidency of Barack Obama, conservatives have been warming to the idea that judges can apply far more probing scrutiny to legislative actions relating to unenumerated rights. If liberals could strike down laws on the basis of a “right to privacy,” why, the thinking went, should conservatives be wary to challenge laws that encroached on economic and property rights? Willett’s concurrence in Patel was a full-throated endorsement of this new view.

You won’t find the words “right of contract” in the Constitution, nor will you find “economic liberty” or, for that matter, a “right to privacy.” That’s because these are so-called unenumerated rights — individual liberties that may be implied in various portions of the Constitution, but which are never explicitly laid down. But which unenumerated rights exist? And to what extent? Because of this uncertainty, the unenumerated rights tend to produce the noisiest constitutional controversies, and, when they are defended, they lead to howls of “judicial activism.” Lochner laid bare just such a controversy.

A post at the Originalism Blog made the same error.

Unfortunately (from my point of view), it appears that Judge Willett admires a doctrine that Justice Scalia abhorred, called substantive due process (or SDP, which was the stated rationale for Roe v. Wade among other cases).

These critiques are off base.

The Slaughter-House Cases (1872) held (erroneously) that the federal constitution, per the privileges or immunities clause, did not protect any meaningful substantive rights, such as liberty of contract. If such rights were to be protected, the Court noted, it would have to be through the state constitutions. Justice Miller explained for the Court:

But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government.

Three years later, the Texas took up that mantle through Article I, Section 19, which provides:

Sec. 19. DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

The phrase “privileges or immunities” under the Texas State Constitution, by Slaughter House’s own admonition, is the place to protect a right of contract. (Again, I think Slaughter-House was wrong, and the Privileges or Immunities Clause does embrace such a right). Justice Willett draws this important distinction in FN 40 of his Patel concurrence:

While the dissenting Justices favor federal-style deference in economic matters, there is a notable distinction between the Texas Constitution and the federal Constitution as interpreted by federal courts. The Texas Constitution protects not just life, liberty, and property, but also “privileges or immunities,” language the U.S. Supreme Court read out of the Fourteenth Amendment in the Slaughter-House Cases, 83 U.S. 36 (1872).  … When the Court in Slaughter-House upheld 5-4 the Louisiana monopoly law, it stressed that the Privileges or Immunities Clause only protected rights guaranteed by the United States and did not restrict state police power. What’s the consensus view today of Slaughter-House?  … The important point for today’s case is that Slaughter-House, while holding that the Fourteenth Amendment’s Privileges or Immunities Clause offered no protection for individual rights against state officials, underscored that states themselves possess power to protect their citizens’ privileges or immunities, including the right to pursue an honest living against illegitimate state intrusion. As the Court correctly notes, the drafters of the Texas Constitution were doubtless aware of this reservation of power to the states when they passed our own Privileges or Immunities Clause just two years later in 1875.

Willett elaborates on this point in FN 145:

As mentioned above, the Texas Constitution has its own “privileges or immunities”-like language, and while Slaughter-House nullified federal protection, the U.S. Supreme Court declared that states were proper guardians of the “privileges or immunities” of state citizenship, including the right to pursue a calling. Slaughter-House Cases, 83 U.S. 36, 77–78 (1873). Texas did exactly that in its 1875 Constitution, acting quickly on the Court’s statement that protection of individuals’ non-federal privileges and immunities was a state concern.

Patel isn’t a nightmare from the Lochnerian substantive-due-process bogeyman, but–as Justice Brennan reminded us–the power of state constitutions to provide additional protections of rights. State Constitutions, unlike the Federal Constitutions, can be easily amended. Texas’s Constitution, in particular, is really easy to amend through the ballot–nearly 500 have been approved since 1876. If the people are unhappy with Justice Willett’s construction of the state constitution, they can change it with ease. Or, when he is up for election in a few years, they can vote him out of office. Such democratic checks are absent for federal judges who identify unenumerated rights present in 14th Amendment. The specter of Lochnerism is simply inapt.