A good deal of modern debate in constitutional law has concerned the appropriate methods for construing constitutional rights. But the focus on “individual rights” has sometimes prompted us to pay too little attention to the “right” deemed most fundamental by those who brought us the state and federal constitutions: the right of the people collectively to make determinations about how they should be governed. The author demonstrates that the key to understanding the development of the power of judicial review, both by the United States Supreme Court and by the highest courts of the states, is to perceive courts as bound by the law established by the people. Despite some historical flirtation with “natural justice” based judicial review, it is clear that the almost universal recognition of the people's right to amend their constitutions, is based on an acknowledgment of their ultimate authority to make, alter, or abolish the forms of government under which they live.
From the beginning, state constitutions referred to “inalienable” rights, but these general, hortatory declarations did not create enforceable limits on the constitutional powers of the other branches of government. Even as states adopted provisions similar to the federal Constitution's Ninth Amendment, which referred to the other rights “retained” by the people, the courts continued to construe such provisions as not adding to the “prohibitions” and “specific limitations” that the state constitutions imposed on governmental powers. This construction of the “retained” rights provisions is also the one that is most consistent with the power of the people to make decisions about how they are to be governed.
Over the years, courts have sometimes sought to reconcile the textualism articulated and defended in Marbury v. Madison with a more “creative” judicial function that discovered “fundamental rights” to be protected by due process clauses of state and federal constitutions. Even though a good deal of recent scholarship calls into doubt modern assumptions about the timing and significance of crucial features of the Lochner era, as reflected in the treatment of such themes, the evidence supports the view that it is difficult to square modern fundamental-rights substantive-due-process decisions with constitutional decision-making rooted in the text. Even so, given the inclusion of common law and customary conceptions of law in some of the earliest due process decisions that might be described as “substantive,” and in light of its historical development, the author argues, it is almost unthinkable that we would terminate altogether the commitment to substantive due process. It may well be that a key to finding some appropriate balance is to look for what the people themselves have deemed fundamental, rather than assuming that courts possess a unique ability to discern the rights properly deemed “unalienable.” To this end, the Court should remain true to its common- law heritage, looking for fundamental rights that are found either in the text or are “objectively, ‘deeply rooted in this Nation's history and tradition.’”
2004 Utah L. Rev. 333.
McAffee, Thomas B.; Frost, Nathan N.; and Klein-Levine, Rachel Beth, "Courts over Constitutions Revisited: Unwritten Constitutionalism in the States" (2004). Scholarly Works. 527.