Does the Constitution Protect the Right to Have More than One Child?

2/16/2016—The answer to that question is yes and that answer shows that Justice Scalia was not a textualist and that the Constitution is a living Constitution.

First, is this question worth asking? Of course. Not only has China adopted this policy, there are many people who believe human population is the heart of the threat to the planet. It is easy to imagine limiting children as a legislative response.

Second, since many people who want more children are religious, wouldn’t the Free Exercise of Religion Clause in the First Amendment already protect them? The answer is no. Justice Scalia saw to that in the Smith case in 1990, which held that the Constitution does not protect religious people against generally applicable laws.

Now, to answer the question. According to Justice Scalia, there could be no right to abortion, because there is nothing about abortion in the Constitution. But, there is nothing about childbirth either. I think it is fair to say that there is nothing in the text of the Constitution or its amendments that would have been understood when enacted to bar legislative limits on having children. (Someone is free to argue otherwise, but it won’t be easy).

When confronted with this question in the Casey case, Justice Scalia relied on “tradition” to establish that such a law would be unconstitutional:

There is, of course, no comparable tradition barring recognition of a “liberty interest” in carrying one's child to term free from state efforts to kill it. For that reason, it does not follow that the Constitution does not protect childbirth simply because it does not protect abortion. The Court's contention, ante, at 2811, that the only way to protect childbirth is to protect abortion shows the utter bankruptcy of constitutional analysis deprived of tradition as a validating factor. It drives one to say that the only way to protect the right to eat is to acknowledge the constitutional right to starve oneself to death.

But who gave judges the authority to enforce tradition? Where is that in the Constitution? Nor was it the understanding of the framers of the Constitution.

More to the point, since traditions change, the Constitution must change. That is, live. If we started slowly—-charging a fee for the extra cost more than 5 children impose on the government, for example, or limiting food stamp and welfare payments if you have too many children—-we do some of that now—-eventually, the right to have many children would erode if it were based on tradition.

For me, it is clear that the reason Justice Scalia understood the Constitution to prevent childbirth restrictions is that such restrictions are morally wrong. And there is a widespread convention against them. So, he would feel it was not just his opinion. But don’t tell me about textualism in any sense. And don’t tell me the Constitution does not live.

When pressed like this, Justice Scalia would respond to the effect that no method of interpretation is perfect. But a method of interpretation that is meant to limit the discretion of judges, as his was said to be, must always be applied or it does not limit the discretion of judges. Essentially, Justice Scalia was saying, I do what I want but I usually want to follow some kind of historical analysis.

Justice Scalia also meant something else in opposing a living Constitution. He did not want to see Constitutional values erode over time. To that end, he was much more consistently attached. And that seems to me a more defensible position.

But even here, context matters. In interpreting the Second Amendment, Justice Scalia seemed to accept that. His right to bear arms turned out to protect just the sort of right he himself could live with—-no right to enter the Supreme Court chamber with a gun.