The Negative Constitution: The Duty to Protect

Everyone knows the major influence government has over individuals' lives. The Constitution grants the state formidable powers in almost every conceivable sphere. But does the Constitution impose obligations on the state to provide benefits and services for the population?

Although the Constitution does require government to take action in narrow circumstances, it is largely cast in negative terms, exemplified by the Bill of Rights' restraints on the prohibition on abridging freedom of speech. There are only two exceptions to the "no duty to protect" rule: the government must provide humane confinement conditions for prisoners,¹ and it must protect a person if the state creates the danger.²

The Supreme Court has remained faithful to a negative conception of the Constitution even in the face of dire personal consequences. Justice Blackmun deplored the Court's faithfulness in his famous dissent in DeShaney v. Winnebago County Department of Social Services:

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by [social workers] who placed him in a dangerous predicament and who knew . . . and yet did essentially nothing . . . . Joshua DeShaney now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother . . . deserve—but now are denied by this Court—the opportunity to have the facts of their case considered in the light [of what the Constitution] is meant to provide.³

And the Court has been faithful to this line of reasoning in cases that bitterly divided the Court and the nation. In Webster v. Reproductive Health Services,⁴ the majority saw no government obligation to provide medical services for the poor when a Missouri statute barred state employees from performing abortions and banned the use of public facilities for such procedures. Referring to DeShaney, the Court wrote: "our cases have recognized that the Due Process Clause generally confers no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual."⁵ Further, "it is difficult to see how any procreational choice is burdened by the State's ban on the use of its facilities or employees for performing abortions."⁶ The majority found irrelevant the fact that a poor woman's only realistic access to medical services may be through government assistance.

The Supreme Court based these decisions on the Fourteenth Amendment's substantive due process clause. The Court declined to consider whether victims have a procedural due process right of protection against private violence. The Court has now taken up this question, however. In Castle Rock v.Gonzales, it held that state law requiring police to enforce domestic abuse restraining orders cannot confer a property interest protected by the procedural due process clause.⁷

Simon Gonzales, who had a history of erratic and suicidal behavior, violated a restraining order by abducting his three young daughters. His estranged wife, Jessica Gonzales, repeatedly pleaded with the police to enforce the restraining order, to no avail. Nearly eight hours after she first contacted police, her husband opened fire on the police station with a semiautomatic handgun purchased after the abduction. Ultimately, he was fatally shot, and police found the three girls, murdered by their father, in his truck.

Although Ms. Gonzales framed her case as one of process rather than substance, in an effort to circumvent the holding in DeShaney, the Court saw little difference between the cases. In the Court's holding, Justice Scalia said the right to enforce a court-ordered restraining order "would not, of course, resemble any traditional conception of property."⁸ Under Supreme Court precedent, Ms. Gonzales was "deprived of property" only if she had an "entitlement" to police enforcement of the restraining order.⁹ Justice Scalia argued that the arrest of a person who violates a protective order is discretionary, so there was no entitlement.¹⁰

The idea that police enforcement of restraining orders is discretionary is a strained interpretation of state law, however. The Colorado statute declares a peace officer "shall" arrest a person who violates a restraining order. The protective order itself carries...