Rehnquist Court Restricting Constitutional Protections

With Wednesday’s ruling that government has no constitutional obligation to shield citizens from danger, the Supreme Court under Chief Justice William H. Rehnquist added yet another flourish to its strict view of the protections afforded by the Constitution.

In matters ranging from education in rural areas to utility rate regulation and collecting evidence at crime scenes, the Rehnquist court has taken the same view--that the Constitution imposes no “affirmative obligation” on government to provide services to citizens or to protect them from harm.

Rehnquist maintains that the Constitution was intended to prohibit government agents from interfering with citizens’ rights by such actions as banning books or breaking down doors without search warrants. Its intent, he said, is to “protect the people from the state, not to ensure that the state protected them from each other.”

Since the departure of moderate Justice Lewis F. Powell Jr. last year, Rehnquist has been in firm control of the high court.

Former President Ronald Reagan, when he elevated Rehnquist to chief justice in 1986, cited his “judicial restraint.” And, since his appointment to the high court in 1971, he has lived up to President Richard M. Nixon’s description of him as a “strict constructionist.”

Controls Key Cases

But, until Powell was replaced last February by Reagan-appointee Anthony M. Kennedy, Rehnquist could not count on obtaining a five-vote majority. Since then, Rehnquist’s control in key cases has been unchallenged.

The high court has not moved quickly to overturn liberal rulings by past courts--although it may overturn several in pending cases--but Rehnquist has used his position to send a message to lower courts on how the Constitution should be read.

Take, for example, the ambiguous phrase in both the 5th and 14th Amendments saying that the government may not “deprive any person of life, liberty or property, without due process of law.” Much of 20th-Century constitutional law has turned on those words.

In the 1930s, a conservative Supreme Court struck down as unconstitutional many of President Franklin D. Roosevelt’s New Deal programs, such as the establishment of a minimum wage, on the grounds that “due process” gave a person the right to make contracts without government interference.

In the 1960s, the court under liberal Chief Justice Earl Warren relied on the “due process” clause in ruling that police officers may not use evidence of criminality at trial if they have violated a suspect’s rights in obtaining that evidence.

In 1973, the Supreme Court relied on the same clause to give women the right to abortions, on the grounds that “liberty” encompasses an implied right to privacy. That ruling, still under attack by anti-abortionists and the Bush Administration, will be reconsidered by the high court in April.

Clause Seen as Limited

But Rehnquist has made his position clear. He believes that the due process clause is quite limited in its meaning. The question before the court in Wednesday’s ruling was whether a Wisconsin social worker had violated the “liberty” of a child when she failed to intervene to protect him from an abusive father.

Many state judges, and a few federal judges, have concluded that, when public employees--whether policemen, school officials or ambulance drivers--are grossly negligent, they may be sued for violating the rights of a citizen.

Rehnquist disagrees. “Nothing in the language of the due process clause itself requires the state to protect the life, liberty and property of its citizens against invasion,” he wrote. “The clause is phrased as a limitation on the state’s power to act, not as a guarantee of certain minimal levels of safety and security. Its language cannot fairly be extended to impose an affirmative obligation on the state.

“The 14th Amendment was intended to prevent government from abusing its power or employing it as an instrument of oppression,” Rehnquist continued. “Its purpose was to protect the people from the state, not to ensure that the state protected them from each other. The framers were content to leave the extent of government obligation in the latter area to the democratic political processes.”

The rule set down by Rehnquist was sweeping, as illustrated by an exchange during the court’s argument in the Wisconsin child abuse case. If a policeman saw a person being assaulted on the street and walked on by, could he be sued for violating the victim’s rights under the Constitution? No, replied an attorney representing the state, a view that the high court opinion subsequently endorsed.

If states want to permit damage suits against their employees or agencies, they may do so, Rehnquist said. If local agencies want to employ more child care workers or set more demanding standards on them, they may do so. “But they should not have (these obligations) thrust upon them by this court’s expansion of the due process clause of the 14th Amendment,” he concluded.

His opinion, supported by five other justices, will force lower court judges to throw out dozens of suits in which citizens are seeking damages from government agencies.

In November, Rehnquist wrote a blunt opinion rejecting the view of an Arizona court that a rape suspect was denied due process of law when police lost evidence from the crime scene that might have exonerated him.

“The police do not have a constitutional duty to perform any particular tests” at a crime scene, the chief justice wrote for the five-member majority. “We therefore hold that . . . failure to preserve potentially useful evidence does not constitute a denial of due process of law.”

Last month, a Pennsylvania utility company contended that its constitutional rights had been violated because it did not receive a large enough rate increase to pay for an abandoned nuclear plant. Again, taking a hands-off approach, Rehnquist disagreed. “The Constitution is not designed to arbitrate these economic niceties,” he said, sending the case back to the state regulatory body.

In June, the court, with Rehnquist in the majority, turned down a plea from a low-income mother in rural North Dakota who argued that a required fee to bus her children to school was unconstitutional. The state law setting the fees “interferes with no fundamental right,” wrote Justice Sandra Day O’Connor, because education is a matter for the states and is not guaranteed by the Constitution.

By contrast, justices who often subscribe to liberal views--William J. Brennan Jr., Thurgood Marshall, Harry A. Blackmun and, sometimes, John Paul Stevens--have a profoundly different view of the Constitution.

They say that free public education is a fundamental right in today’s society, that the due process clause requires “fundamental fairness” in criminal trials and that citizens have a right to sue government officials who are charged with protecting them and do not.

But, in the last year, their views have been expressed only in impassioned dissenting opinions.