After abortion ruling, what happens to other unwritten rights?

In overturning the right to abortion in Dobbs v. Jackson Women's Health Organization over the summer, the Supreme Court drew new attention to a phrase many Americans had heard only in passing, if they had heard it at all: “substantive due process.” Those three words described the main source of so-called unenumerated rights in the Constitution — rights that cannot be found in the text of the document but that the Supreme Court has nevertheless declared the law of the land.

Many conservatives celebrated Dobbs as a long overdue recognition that the right to abortion had no constitutional stature. Many liberals mourned the loss of a fundamental right and worried that other unenumerated rights — like the rights to contraception and same-sex marriage — were now also endangered.

Yet often lost in these impassioned debates were foundational questions: Why are unenumerated rights protected at all in the Constitution? Why are they protected under the rubric of substantive due process? How does the high court determine which rights fit under this framework? What does Dobbs suggest about which rights will be protected going forward? And how will those judgments influence the future of the nation?

Some wonder why the courts safeguard unenumerated rights. “When the Supreme Court creates a right that is not even mentioned in the Constitution, the independence and the legitimacy of the Supreme Court itself is called into question,” said Sen. John Cornyn, R-Texas, at Justice Ketanji Brown Jackson's confirmation hearing. On its face, this is a serious concern. In a democracy, it's worrisome enough that five of nine justices on the Supreme Court can brandish a provision of the Constitution to strike down a law enacted by an elected legislature. Scholars have spilled rivers of ink analyzing the perils of giving unelected justices so much power. But when the justices rely on text, we at least know a supermajority of the states ratified that provision to make it part of our Constitution. With unenumerated rights, we have no such assurance. Those five justices could simply be imposing their own policy preferences on a third of a billion people.

And yet, as nettlesome as unenumerated rights may be, they undoubtedly exist in our constitutional order. Somewhat ironically, the Constitution itself establishes the existence of rights not named in the Constitution. The Ninth Amendment states that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment also captures a deeper insight: It would have taken impossible foresight for the framers to list every conceivable right the people would regard as fundamental. As Chief Justice John Marshall said in 1819, the nature of a constitution was that it was designed for the ages and therefore could not “partake of the prolixity of a legal code.” Time has richly vindicated that view. The court has recognized the rights to travel, to vote and to marry as fundamental rights that have the same stature as enumerated ones. While unenumerated, all these rights seem indispensable today.

A thornier question is why many unenumerated rights are protected under the due process clauses of the Fifth and 14th amendments. The Fifth Amendment prohibits the federal government from depriving individuals “of life, liberty, or property without due process of law.” The 14th applies the same prohibition to state governments. Neither clause addresses “substantive” rights. To the contrary, they speak of a “process” - think of notice or an opportunity to be heard by an impartial decision-maker - that must be followed before the government takes away something of material importance from an individual.

Substantive due process, then, not only adds the word “substantive” to the phrase in the Constitution, but also fashions an oxymoron in doing so. “Substance” and “process” are often cast as antonyms, perhaps particularly in legal discourse. Constitutional law scholar John Hart Ely once scoffed that “‘substantive due process' is a contradiction in terms sort of like ‘green pastel redness.' “

The court's protection of unenumerated rights under the due process clauses is all the more puzzling because another constitutional provision seems directly on point. The privileges or immunities clause of the 14th Amendment asserts that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” That clause would seem like the most obvious source of unenumerated rights, as privileges and immunities are clearly substantive in nature.

Where the text of the Constitution doesn't line up with our present-day experience of it, the explanation is often an intervening Supreme Court case. In 1873, five years after the ratification of the 14th Amendment, the Supreme Court handed down a decision in The Slaughterhouse Cases. The court offered such a narrow reading of the privileges or immunities clause that, in the words of constitutional law scholar Akhil Reed Amar, it had the effect of “strangling the ... clause in its crib.”

When the court puts pressure on a particular part of the Constitution, it is squeezing a balloon. The pressure can push the air out or over. In this instance, unenumerated rights did not get squeezed out of the Constitution but over to another provision, namely the due process clause. Directly after The Slaughterhouse Cases, the court began to interpret the idea that liberty could not be taken away without due process to mean that the government couldn't take liberties away unreasonably - and hence substantive due process was born.

Today, the high court has protected most unenumerated rights under the due process clauses of the Fifth and 14th amendments. At different points in the 20th century, substantive due process has fallen in or out of favor with the court with other parts of the Constitution sometimes picking up the slack - but it has, on the whole, remained the workhorse of unwritten rights. Liberties protected by substantive due process include:

The right to control the education of one's children by letting them learn a foreign language (as recognized in Meyer v. Nebraska in 1923).

The right to control the education of one's children by sending them to parochial school (Pierce v. Society of Sisters, 1925).

The right to contraception (Griswold v. Connecticut, 1965).

The right to interracial marriage (Loving v. Virginia, 1967).

The right to have an abortion (Roe v. Wade, 1973).

The rights of extended family members to share a home (Moore v. City of East Cleveland, 1977).

The right to refuse medical treatment (Cruzan v. Director, Missouri Department of Health, 1990).

The right to same-sex sexual intimacy (Lawrence v. Texas, 2003).

The right to same-sex marriage (Obergefell v. Hodges, 2015).

These rights — and their powerful, often-taken-forgranted role in day-to-day American life — are the focus of this package of stories.

While the Supreme Court has long agreed that unenumerated rights exist and should mostly be protected under its substantive due process jurisprudence, the agreement ends there. The hottest area of controversy — which has now become incandescent with the Dobbs ruling — concerns the question of how the court discerns which unenumerated rights it will protect. Two major factions have emerged in this battle royal: what I'll call the backward-looking camp and the forward-looking camp.

The backward-looking camp won a major victory in the 1997 case of Washington v. Glucksberg. Consolidating earlier cases, the court held that unenumerated rights would be protected only if they were “deeply rooted in this Nation's history and tradition” and “implicit in the concept of ordered liberty.” Applying that standard, the court declined to recognize a right to physician-assisted suicide because it lacked historical roots. The virtue of the Glucksberg analysis was that it provided a limiting principle for which unenumerated rights should be protected. As judges were not bound here by text, they would instead be bound by tradition.

The forward-looking camp, in contrast, often invokes a 1961 dissent by Justice John Harlan, which observed that “due process has not been reduced to any formula,” but “has represented the balance” between “the liberty of the individual ... and the demands of organized society.” That balance, Harlan elaborated, was informed by “the traditions from which [the country] developed as well as the traditions from which it broke.” He emphasized that this “tradition is a living thing.”

Unlike the backwardlooking interpretation, the forward-looking one may appear vulnerable to the core critique of substantive due process: that it permits unfettered discretion on the part of the justices. However, while it is certainly more expansive, the forwardlooking interpretation need not be open-ended.