Lear's Daughters? Unenumerated Fundamental Rights and the Constitution

An obvious alternative is the “forgotten Ninth Amendment,” ⁽⁵⁾ which, to counter expressio unius, provides that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” ⁽⁶⁾ Its rationale, as Madison explained in proposing it, was to rebut the objection that the Bill of Rights, “by enumerating particular exceptions to the grant of power ... would disparage those rights which were not placed in that enumeration; and it might follow by implication that those rights which were not singled out were intended to be assigned into the hands of the general government, and were consequently insecure.” ⁽⁷⁾ What are these rights? The key may lie in the relation of the Constitution to the Declaration of Independence. Lincoln proclaimed that the Declaration “has proved an ‘apple of gold’ to us,” and considered the Constitution and the federal union “the picture of silver subsequently framed around it. ... . The picture was made for the apple—not the apple for the picture.” ⁽⁸⁾

This connection became the centerpiece of arguments set down by the Ninth Amendment's most prominent legal advocate, the distinguished Yale law professor, Charles L. Black, Jr. For him, the Declaration of Independence, “a juristic act [that] demolish[ed] one legal authority and set up another,” ⁽⁹⁾ had as much legal standing as the Constitution; indeed, the purpose of the Constitution and the Bill of Rights, in particular, was to implement the principles of the Declaration. A key potential means to achieve this implementation, he believed, was the open-ended Ninth Amendment, “a fountain of law,” ⁽¹⁰⁾ which he thought imposed an affirmative duty on both the national government and the states, as the rights are “retained by the people.” ⁽¹¹⁾ He acknowledged that identifying the rights will be “a pack of troubles,” ⁽¹²⁾ but refusing to try conflicts with the command of the Amendment and must be rejected; “[t]he Ninth Amendment seems to be guarding something.” ⁽¹³⁾

When the Amendment refers to rights, Black reasoned, it must mean the rights recognized around that time, ⁽¹⁴⁾ in other words, the rights declared in the Declaration, including the pursuit of happiness. As the meaning of this right has evolved, Black inferred that “The possession of a decent material basis for life is an indispensable condition ... to the pursuit of happiness;” ⁽¹⁵⁾ the result is a constitutional guarantee of a moderate standard of living plus a ban on every kind of discrimination, whether race, gender, or sexual orientation. ⁽¹⁶⁾ In Black's eyes, then, the Declaration via the Ninth Amendment granted enormous power to the national government to shape society for the better. The need for this, he believed was obvious, as he considered the Bill of Rights, by itself, “very plainly insufficient to found a system broad and comprehensive enough for a really free people.” ⁽¹⁷⁾

It is not clear that Black's history is correct. For well over a century, many influential historians have argued that the point of the Constitution was not to make the Declaration's principles real, but instead to frustrate them. ⁽¹⁸⁾ If the Constitution was meant to enshrine the Declaration's rights, how to explain the Framers’ “never seriously considering adopting a bill of rights,” ⁽¹⁹⁾ twice voting it down at the constitutional convention; ⁽²⁰⁾ and how to explain Madison's proposing the amendments in 1791 not to actualize the principles of the Declaration, but rather to deflate calls for a new constitutional convention made by leaders of the opposition Anti-Federalists? ⁽²¹⁾ The broad positive social welfare rights that Black found implicit in the Ninth Amendment, moreover, were clearly foreign to the Framers, who took for granted a system of quite limited government. Black also seemed indifferent to the very substantial cost of these rights, a cost that would deprive taxpayers of money that would otherwise enhance their freedom. Nor did he seem interested in the germane distinction between rights and interests. ⁽²²⁾ Finally, laying all these criticisms aside, the guidance provided by the Declaration is so vague that it is barely guidance at all.

Accordingly, Justice Scalia examining the text, argued that the Ninth Amendment's “refusal to ‘deny or disparage’ other rights was far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.” ⁽²³⁾ As he saw it, the potential of the Ninth Amendment was vastly overblown. Similarly, Russell Caplan, in a careful history, concluded that the Amendment “is not a cornucopia of undefined federal rights,” but was merely directed at “the maintenance of rights guaranteed by the laws of the states.” ⁽²⁴⁾ No wonder Justice Jackson found its meaning “a mystery to me,” ⁽²⁵⁾ and John Hart Ely derided it as “that old constitutional jester.” ⁽²⁶⁾

Given the extreme disagreements on such basic considerations, it is hardly surprising that the Ninth Amendment has not served to justify a major doctrine. When “in perhaps [its] most famous invocation,” ⁽²⁷⁾ Justice Goldberg mentioned it in a concurrence to Griswold v. Connecticut—he was careful to note that he did not “mean to state that the Ninth Amendment constitutes an independent source of rights” ⁽²⁸⁾—it was greeted as an act of “astonishing resuscitation.” ⁽²⁹⁾ This was premature. As even its most ardent living advocate conceded, “though the Supreme Court has identified and enforced unenumerated rights, it has never done so based on its reading of the Ninth Amendment.” ⁽³⁰⁾ Indeed, “the modern Supreme Court has studiously avoided the Ninth Amendment despite being prodded by parties before the Court to rely on it.” ⁽³¹⁾ Perhaps, it is the very open-ended language of the Amendment that Charles Black found encouraging that has intimidated courts. ⁽³²⁾ In any case, they have not accepted his challenge.

If the Ninth Amendment has not proved to be a vehicle for unenumerated fundamental rights, what options exist? The current uproar over Dobbs v. Jackson Women's Health Organization (2022) ⁽³³⁾ and the demise of a woman's fundamental right to choose to have an abortion is merely the latest and most spectacular chapter in a long narrative.

Incorporation is the process by which the Supreme Court has taken portions of the Bill of Rights, which originally applied only to the national government, ⁽³⁴⁾ and applied them to the states. The mechanism used is the liberty dimension of the Fourteenth Amendment's due process clause. ⁽³⁵⁾ Though the rights are expressed in the Constitution and in this sense are enumerated, their application to the states is not expressed, thus justifying the label “unenumerated.” For relying on “liberty” does not solve the problem, but merely changes it to: what rules guide the Court in its determination as to what liberty encompasses?

The first incorporation case was Chicago, Burlington & Quincy Railroad v. Chicago (1897), involving the Fifth Amendment's takings clause. In a long, rambling opinion, Justice Harlan cited “a deep and universal sense of ... justice” and “a settled principle of universal law” ⁽³⁶⁾ that would be violated if the state took property for public use and provided no compensation. However, he never addressed the question as to why the Court was justified in announcing a right that did not appear in the Fourteenth Amendment.

Gitlow v. New York (1925) applied the First Amendment's free speech and free press guarantees to the states. In an eighteen page opinion, Justice Sanford devoted exactly one sentence to incorporation, writing simply that “For present purposes, we may and do assume” incorporation. ⁽³⁷⁾ He took no notice of the Framers’ overwhelming rejection of a proposal barring states from “infring[ing] the right of...freedom of speech.” ⁽³⁸⁾ Nor did he seem to notice that Gitlow's offense, publishing The Left-Wing Manifesto, involved only freedom of the press and not speech. Nor, finally, did he pause to offer any justification for his ruling.

In Near v. Minnesota (1931), which applied the First Amendment's freedom of the press to the states, Chief Justice Hughes spent a paragraph on the topic, citing Gitlow and three other cases. “It was impossible to conclude” ⁽³⁹⁾ that the states would not be bound by the First Amendment, he wrote, but in fact that was the rule prior to his decision. Again, no justification was offered.

Hamilton v. Regents of the University of California (1934) applied the First Amendment's free exercise of religion right to the states. In a sixteen-page opinion, Justice Butler devoted a paragraph to the topic, refusing even to entertain the notion that a justification was required. ⁽⁴⁰⁾

DeJonge v. Oregon (1937) saw the First Amendment's right to assembly and petition applied to the states. In an eleven-page opinion, Hughes declared that “peaceable assembly for lawful discussion cannot be made a crime” ⁽⁴¹⁾ and that “explicit mention [in the First Amendment] does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions.” ⁽⁴²⁾ Thus, the indirect connection to the Constitution was made—assembly is tied to speech (Fourteenth Amendment), which is tied to speech (First Amendment) -- but again there was no effort to demonstrate why courts were authorized to make the connection.

Everson v. Board of Education (1947) applied the First Amendment's religious establishment clause to the states. Justice Black discussed the constitutional question at some length, particularly, in the context of early American history. ⁽⁴³⁾ The incorporation of the establishment clause is defended as a corollary of the free exercise clause, which had previously been incorporated. Again, an indirect connection was considered sufficient.

In re Oliver (1948) applied to the states the suspect's right to be notified of the accusations against him. Justice Black again discussed early American history, announcing that the Fourteenth Amendment “guarantee[d] that ... no man's life, liberty, or property be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal.” ⁽⁴⁴⁾ The indirect connection was considered adequate.

In light of these seven early incorporation cases, what justifications are offered for applying rights to the states? Sometimes, the answer is none (Gitlow, Hamilton); sometimes, morality (Chicago, Burlington & Quincy Railroad, Oliver); sometimes a previous incorporation (Near, DeJonge, Everson, Oliver); sometimes, history (Everson, Oliver); sometimes, public policy (Chicago, Burlington & Quincy Railroad, Everson). None of the opinions engages with the question as to how the Court justifies rewriting the Bill of Rights. Not even Black, renowned as a textual literalist, addressed the issue or asked why if the framers of the Fourteenth Amendment intended to incorporate the Bill of Rights, they did not make their intentions textually explicit. ⁽⁴⁵⁾

Granted that it might be good public policy to apply the Bill of Rights to the states, why should courts be the vehicle to accomplish this purpose?

While the Court was addressing incorporation, it was also deciding other cases bearing on unenumerated rights, perhaps, most famously, Lochner v. New York (1905), which concerned a law that regulated the hours and working conditions of bakers. ⁽⁴⁶⁾ In an earlier case, Justice Peckham had referred to the Declaration of Independence's pursuit of happiness, ⁽⁴⁷⁾ which he construed as the individual's power to pursue “an ordinary calling or trade” ⁽⁴⁸⁾ or as he expressed it a few pages earlier, “to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned” ⁽⁴⁹⁾—in sum, to construct his own life, to map out his own destiny. In pursuing happiness, we soon learn that we can rarely achieve it on our own. Rather, we need to join with others. From this, Peckham infers an inherent right to come together to seek our goals, in a word, to contract.

This is not an unlimited right, but here the burden falls on New York to demonstrate that its abridgement of the right—denying employer and employee the opportunity to determine the conditions of employment—can be justified. Are bakers, unlike other workers, incapable of looking out for themselves? ⁽⁵⁰⁾ Is their work “especially unhealthy”? ⁽⁵¹⁾ Is there some public benefit, perhaps more “clean and wholesome” bread, the law will produce? ⁽⁵²⁾ Answering no to these questions, Peckham found the law contrary to the unenumerated right of liberty of contract and thus unconstitutional. ⁽⁵³⁾ Throughout, he emphasized that “This is not a question of substituting the judgment of the Court for that of the legislature.” ⁽⁵⁴⁾

Justice Holmes, in his brief and famous dissent, surely gets the better of the argument. Peckham's logic may be fine, but as Holmes’ observed a quarter of a century before, “The life of the law has not been logic; it has been experience.” ⁽⁵⁵⁾ Holmes, of course, is not pleading that law should be illogical. Instead, he is insisting that law arises as a function of human experience, in the sense that it represents political resolutions of social conflicts and not deductions from abstract principles; the Constitution rests on this common sense observation, and as it was made “for people of fundamentally differing views,” ⁽⁵⁶⁾ it “is not intended to embody a particular economic theory, whether of paternalism ... or of laissez faire” that Peckham evidently cherished. ⁽⁵⁷⁾

How, then, can Peckham justify this right, liberty of contract, that is not expressed in the Constitution? Holmes, an exponent of judicial self-restraint, declares that he cannot. The “word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” ⁽⁵⁸⁾ The alternative would be unauthorized judicial legislation justified only by the judges’ ideology or policy preferences, neither of which had a basis in the Constitution. Peckham's claim that the Court had not usurped the legislature's policy making function was mere self-delusion. In contrast to his abstract argument, Holmes invoked history/tradition as a test to determine the constitutionality of an unenumerated right. Liberty of contract failed the test.

The magic key that Peckham imagined he had found that unlocked liberty of contract was what Justice Thomas recently dismissed as an “oxymoron that lack[s] any basis in the Constitution,” ⁽⁵⁹⁾ substantive due process. The Fifth and Fourteenth Amendments provide, inter alia, that neither the national nor the state governments may deprive persons of their liberty without due process of law. This means, literally, that they may deprive persons of liberty, provided the procedures be correct; it also means that the substance of a law, regardless of how constitutional its adoption and enforcement, may not arbitrarily abridge liberty.

At least, that is what it means today. An exhaustive study of the original public meaning of due process in the Fifth Amendment, however, suggests a much narrower meaning of the term. Specifically, that “process” simply refers to “a formal document that provides a person notice of legal obligation,” for example, “a criminal defendant may not be deprived of life or liberty without first either person service of process or some legally valid alternative.” The clause, the authors believe, does not even “require that procedures be fair.” ⁽⁶⁰⁾ On the other hand, the nineteenth century saw a few cases positing substantive due process under the Fifth Amendment as applicable to the national government, in one, for example, calling due process “a restraint on the legislative as well as the executive and judicial powers of the government.” ⁽⁶¹⁾ The infamous Dred Scott case also held the clause as negating Congress’ power to undo a slave owner's property interest in his slave. ⁽⁶²⁾

In Lochner, Peckham conceived the clause's “liberty” to include liberty of contract, found the justifications for New York's infringement to be arbitrary, and thus struck down the law. Holmes countered that conceiving liberty in this fashion was itself arbitrary and unjustified. Though Holmes was no great friend of the working class, his opinion has been widely regarded as providing a powerful constitutional rationale for government legislation workers have supported. Rights, which we normally presume protect the interests of the vulnerable, here protected the interests of the powerful. In his opposition, Holmes denied courts the power to create a right not expressed in the Constitution.

Meyer v. Nebraska (1923) concerned laws passed by Nebraska, Iowa, and Ohio requiring all schools to teach only in the English language. ⁽⁶³⁾ Adopted in a xenophobic anti-German atmosphere accompanying World War I and reflecting a longstanding commitment to “Americanize” immigrants, the laws were defended by the states as reasonable means to inculcate patriotism and a sense of national identity. By 1923, thirty-one states had similar laws. ⁽⁶⁴⁾ Robert Meyer, a teacher at an Evangelical Lutheran Church school in rural Nebraska, had violated the law by reading a ten year old student portions of Martin Luther's Bible in German during recess. Convicted, Meyer was fined $25.

Justice McReynolds, speaking for a seven-to-two Supreme Court majority, held that the statute exceeded “the limitations upon the power of the state and conflict[ed] with rights assured to [Meyer].” ⁽⁶⁵⁾ He conceded that the “desire of the legislature to foster a homogeneous people with American ideals ... is easy to appreciate,” but thought that the mere “knowledge of the German language cannot reasonably be regarded as harmful.” ⁽⁶⁶⁾ The law could “interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own.” ⁽⁶⁷⁾ McReynolds, echoing Peckham in Allgeyer, went on in dicta to declare that substantive due process also includes the right “to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” ⁽⁶⁸⁾ Some of these rights were quite irrelevant to the issues at hand.

McReynolds then returned to the controversy before him. “The American people,” he wrote, “have always regarded education and the acquisition of knowledge as matters of supreme importance which should be diligently promoted,” referencing the Ordinance of 1787. ⁽⁶⁹⁾ Like Holmes in Lochner, McReynolds in a single sentence prescribes a rule for determining the constitutionality of rights not mentioned in the Constitution: an historical/traditional legal consensus.

McReynolds is not usually held in high regard today. Holmes thought him “a savage,” ⁽⁷⁰⁾ Brandeis called him “an infantile moron,” ⁽⁷¹⁾ and Taft said he was “fuller of prejudice than any man I have ever known.” ⁽⁷²⁾ Even by the relaxed standards of his time, he was notorious for bigotry. He routinely turned his back on Justice Cardozo because he was Jewish, ⁽⁷³⁾ he turned his back when Black lawyers argued before the Court, ⁽⁷⁴⁾ and when women lawyers appeared he would remark, “I see the female is here” and leave the courtroom. ⁽⁷⁵⁾ More to the point, McReynolds was no friend of immigrants. ⁽⁷⁶⁾ To put it diplomatically, he was the “improbable author” of Meyer. ⁽⁷⁷⁾ Yet his brief, rough formulation of an historical/traditional basis for unenumerated rights has proven influential. Meyer has received nearly 3000 precedential citations, including such prominent cases as Obergefell v. Hodges, ⁽⁷⁸⁾ McDonald v. Chicago, ⁽⁷⁹⁾ Lawrence v. Texas, ⁽⁸⁰⁾ Washington v. Glucksberg, ⁽⁸¹⁾ Planned Parenthood v. Casey, ⁽⁸²⁾ Cruzan v. Director, Missouri Department of Health, ⁽⁸³⁾ Roberts v. Jaycees, ⁽⁸⁴⁾ and Roe v. Wade. ⁽⁸⁵⁾

Meyer illustrates a level of analysis conundrum that has often bedeviled the issue of substantive due process. At the literal level, it is obvious that Meyer's instruction does not fit the historical/traditional legal consensus rationale very snugly, for it is certainly doubtful that a consensus existed to the effect that teachers have a right to teach in a foreign language, that pupils have a right to take courses in a foreign language or that parents have a right to have their children educated in a foreign language. On the contrary, there surely were many schools that did not offer courses in German, as there were schools that did not offer courses in many other subjects. Nor, at a broader level of abstraction, is it clear that a consensus favored the interests of teachers and students over the social goal of assimilation. Indeed, as with Lochner, which McReynolds cited as precedent, ⁽⁸⁶⁾ what is striking is the absence of a consensus on the matter, which explains how these pedagogical laws came to be adopted in the first place. Nor is it clear how conflicts arising from the parental right should be resolved. Suppose parents differed, for example, one claiming a right to have her child raised to admire her country and another to view it as a bastion of racism and sexism. Would this require that both points of view be taught, confusing the students and leaving the parents dissatisfied? Would each view require its own class? Suppose a third parent believed the Framers were Martians, and wanted his children to be taught this narrative. If the level of generality is raised sufficiently, say, to the abstractions McReynolds voiced, the historical/traditional contentions might seem more plausible. How to determine which level of generality fits best? McReynolds offered no guidance.

Two years later, Pierce v. Society of Sisters (1925) saw McReynolds, this time speaking for a unanimous Court, address another state law targeting schools. Here, Oregon required all children ages eight to sixteen to attend public schools, in effect banning private and parochial schools. ⁽⁸⁷⁾ Backed by the populist governor, Walter Pierce, the law was intended to help assimilate immigrants and counter the influence of the Roman Catholic Church.

Though McReynolds conceded that the law infringed upon the school's property rights, he again emphasized that it “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.” ⁽⁸⁸⁾ In support of this, he added, “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.” ⁽⁸⁹⁾ The only reference to history/tradition was a clause noting that the work of religious schools had been “long regarded as useful and meritorious.” ⁽⁹⁰⁾

But if the state can standardize so much else in education—curriculum, textbooks, teacher certification, building certificates of occupancy—why draw the line here? For there is a substantial, irreducible element of coercion in education: students are not free to learn only the subjects that appeal to them or even to speak when they feel like it in class. What, also, exactly is meant by “fundamental theory of liberty”? Is it merely a rhetorical flourish? Of Meyer and Pierce, Justice Brennan wrote, “I think I am safe in saying that no one doubts the wisdom or validity of those decisions.” ⁽⁹¹⁾ Yet some doubt, at least about the reasoning, remains. Again, history/tradition, mentioned fleetingly in passing, provides a very thin rationale.

Skinner v. Oklahoma ex rel. Williamson (1942) concerned Oklahoma's Habitual Criminal Sterilization Act that required the sterilization of persons convicted two or more times of “felonies involving moral turpitude,” except “violations of the prohibitory laws, revenue acts, embezzlement, or political offenses.” ⁽⁹²⁾ Jack T. Skinner, convicted twice of armed robbery and once of stealing six chickens, was ordered to undergo a vasectomy.

Justice Douglas’ majority opinion for the Supreme Court struck down the law as violating the Fourteenth Amendment's equal protection clause; treating embezzlers and chicken thieves differently constitutes “a clear, pointed, unmistakable discrimination.” ⁽⁹³⁾ But Douglas did not stop here. The very first sentence of his opinion highlights “a sensitive and important area of human rights,” namely, “the right to have offspring.” ⁽⁹⁴⁾ Later, he speaks of “the basic civil rights of man,” marriage and procreation, ⁽⁹⁵⁾ without pausing to indicate the contours of these rights. If I have a right to marry, can the state charge me for exercising that right by compelling me to purchase a marriage license? Can it force me to take a blood test? Or ban me from marrying members of my family? Is it obliged to subsidize my membership in Tinder.com, if I am unable to find a spouse on my own? Is marriage, a legal construct conferring formal benefits and obligations, actually indistinguishable from, say, freedom of speech, which does not require certification by the state? Why, in any event, refer to marriage, inasmuch as Oklahoma is not preventing Skinner from marrying? As to procreation, is this a positive right in the sense that if I have difficulty, the state is obliged to help me, for example, by funding appropriate medical procedures? Does a right to procreate imply a right not to procreate, that is, to state supplied contraception and abortion? Can a man sentenced to life in prison claim a right to impregnate his wife via artificial insemination? ⁽⁹⁶⁾

There is something gratuitous about the inclusion of these unenumerated rights, reminiscent of a cook tossing leftover vegetables into a stew. ⁽⁹⁷⁾ Were they, as McReynolds would have it, based on historical practice or understanding? Douglas saw no need to pursue the question.

Justice Harlan addressed the question of unenumerated rights in some detail in his “influential” ⁽⁹⁸⁾ dissenting opinion in Poe v. Ullman (1961), a case involving Connecticut's ban on contraceptives that the Court dismissed as nonjusticiable on account of its absence of ripeness. It is his discussion of substantive due process that accounts for the considerable interest it has continued to attract. ⁽⁹⁹⁾

Audaciously, Harlan's focus is not on the literal text of the Constitution, “as if we had a tax statute before us,” for the due process clause is “not self-explanatory.” ⁽¹⁰⁰⁾ Instead, he proceeds from the assumption that the Constitution is “the basic charter of our society, setting out in spare but meaningful terms the principles of government.” ⁽¹⁰¹⁾ From this perspective, Harlan argues that “Each new claim to constitutional protection must be considered against a background of constitutional purpose, as they have been rationally perceived and historically developed.” ⁽¹⁰²⁾ Hence, the due process clause should be interpreted in light of the Constitution's basic principles and purposes, in this instance, the “postulates of respect for the liberty of the individual” ⁽¹⁰³⁾ that rule out “all substantial arbitrary impositions and purposeless restraints.” ⁽¹⁰⁴⁾

Harlan proposed a two-part test. First, is the liberty abridged fundamental, that is, does it offend “the traditions from which it developed as well as the traditions from which it broke”? ⁽¹⁰⁵⁾ If the answer is yes (as it was in this case), Harlan would raise a second question, can the state's act meet the strict scrutiny test? Here, the answer was no: the Connecticut statute was “an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual's personal life.” ⁽¹⁰⁶⁾

Harlan's treatment of history/tradition, like a river with currents running this way and that, is no simple thing. Though he asserts that “history sheds little light” on the meaning of due process, ⁽¹⁰⁷⁾ he refers to the traditions from which it developed,” and cites fourteen cases, two of which preceded the adoption of the Fourteenth Amendment, in support of the legitimacy of substantive due process, as well as the Framers’ views on the right to privacy implicit in the Third and Fourth Amendments. ⁽¹⁰⁸⁾ At the same time, he insists that “tradition is a living thing,” and instructs us to look to “the traditions from which it broke. A decision of the Court which radically departs from [this living tradition] could not long survive, while a decision which builds on what has survived is likely to be sound.” ⁽¹⁰⁹⁾ In his eyes, “liberty” is not “a series of isolated points [but] a rational continuum.” ⁽¹¹⁰⁾ With this, Harlan cannily refers simultaneously both to the past and the present.

How to answer both questions? Remarkably, Harlan did not try to hide the personal element, but began his dissent with “I” ⁽¹¹¹⁾ and used the word no fewer than thirty-nine times and “me’ six times. Was this to suggest that he be our guide? Or merely that we must rely on justices doing their best (whatever that means)?

His dissent is a powerful counter argument to the textualism often paraded by Justice Black. Yet it has an unfinished quality, for it left practical questions unaddressed. If history sheds little light and tradition is a living thing, how can they be rigid enough to provide sufficient guidance? How to reply to differing subjective judgments?

Griswold v. Connecticut (1965) saw Justice Douglas address the same Connecticut law that now was ripe, thanks to a prosecution of Estelle Griswold, the executive director of Planned Parenthood in Connecticut, who gave contraceptive information and counseling to married couples, and was convicted of violating the law and fined $100.

Justice Douglas began his consideration of the merits, announcing, “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch ... social conditions.” ⁽¹¹²⁾ He then argued that the Constitution embodies certain rights not expressly mentioned, illustrating his point with nine precedents. These “peripheral rights,” ⁽¹¹³⁾ implied by the expressed rights, “suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from these guarantees that help give them life and substance.” ⁽¹¹⁴⁾ He closed the case by arguing that the First (the right to associate), Third (the right to be free from being forced to quarter soldiers in one‘s home during peace time), Fourth (the right to be secure in one's person and to be free from unreasonable searches and seizures), Fifth (the privilege against self-incrimination), and Ninth (the Constitution's enumeration of rights is not necessarily exclusive) Amendments, taken together, create a zone of privacy protected by the Constitution. ⁽¹¹⁵⁾ At this point, Douglas turned to the fact that Griswold had been counseling married couples. “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” he asked, following with a paean to marriage as “an association for as noble a purpose as any involved in our prior decisions.” ⁽¹¹⁶⁾ Douglas’ justification of the unenumerated right is almost entirely abstract. His sole historical reference is a clause stating, “We deal with a right of [marital] privacy older than the Bill of Rights.” ⁽¹¹⁷⁾

The disconnect between Douglas’ argument and the facts of the case is hard to ignore. In the first place, none of the amendments or the precedents cited had the slightest relation to contraceptive counseling. Nor is running classes counseling couples obviously a private act. Nor is it clear what the “sacred precincts of marital bedrooms” refers to, for they have never been thought to constitute off limit sanctuaries barring searches for, say, contraband or weapons. ⁽¹¹⁸⁾

No wonder Justice Black, dissenting, wrote that though he found the Connecticut law “offensive” and liked “my privacy as well as the next one ... I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” ⁽¹¹⁹⁾ In foreswearing what Black called the “old fashioned” amending process, ⁽¹²⁰⁾ Douglas left the right untethered to a constitutional text and denied it a legislative history, both of which might have offered useful guidance to future courts. When Black predicted that Douglas’ privacy was “a broad, abstract, and ambiguous concept which can easily be shrunken [or expanded] in meaning,” ⁽¹²¹⁾ he foretold its use in abortion and right to die cases as a synonym for autonomy, a rather different notion. ⁽¹²²⁾ Such acts of discontinuity might seem to require unusually comprehensive justification, but for Douglas, the paragraph on penumbras and emanations seemed quite sufficient. He made no effort to rebut contrary views, for example, that the absence of a general privacy right indicates that the Constitution recognizes only the narrow privacy rights expressed in the amendments—that is, that the emanations produced no penumbra. ⁽¹²³⁾

In re Winship (1970) addressed a New York law that provided that minors could be convicted of certain crimes if the preponderance of evidence was against them. Winship, a twelve-year-old boy, was on this basis convicted of stealing $112 and sent to a juvenile training school. In considering the law, Justice Brennan, speaking for a six to three majority, began by observing that “The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a nation,” ⁽¹²⁴⁾ also referring to its place in the common law. ⁽¹²⁵⁾ The requirement, he added, “is a prime instrument for reducing the risk of convictions resting on factual error.” ⁽¹²⁶⁾ The undoubted presence of an historical/traditional consensus suggested that the standard is required by the Constitution, and Brennan saw no reason why the same logic would not apply both to adults and juveniles, though he provided no historical/traditional rationale for this position ⁽¹²⁷⁾ Here, at least, one might assume that at last a traditional/historical consensus has been found.

But no, says Justice Black, dissenting, who pointed out that the Court “had never clearly held ... that proof beyond a reasonable doubt is either expressly or impliedly commanded by any provision of the Constitution.” ⁽¹²⁸⁾ He went on to say, “The Constitution ... goes into some detail to spell out what kind of trial a defendant charged with crime should have, and I believe the Court has no power to add to or subtract from the procedures set forth by the Founders. I realize that it is far easier to substitute individual judges’ ideas of ‘fairness’ for the fairness prescribed by the Constitution, but I shall not at any time surrender my belief that the document itself should be our guide, not our own concept of what is fair, decent and right.” ⁽¹²⁹⁾ For Black, “the only correct meaning of [due process] is that our government must proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provisions as interpreted by court decisions.” ⁽¹³⁰⁾ The alternative to the law of the land was “the law of the judges,” which is counter to the principle of democratic self-government. He does not dispute the value of the standard of proof, but merely denies that a court can enforce its opinion on the country. If there were no consensus on this question, where would it be found?

Roe v. Wade (1973) famously saw the right to choose to have an abortion as an unenumerated fundamental right. Norma McCorvey, single, pregnant, and a resident of Texas, wanted an abortion, but Texas permitted abortions only if necessary to save the life of the mother. ⁽¹³¹⁾ Justice Blackmun, speaking for the majority, put history at the center of his argument, first, that abortions had been treated leniently under the law, especially before quickening, ⁽¹³²⁾ and second, that “person” as used in the Constitution does not include the unborn. ⁽¹³³⁾ From this, he concluded that the right to choose to have an abortion is a fundamental right that implicates the strict scrutiny test, though he did not always make it clear whether the right is possessed by the woman or her doctor. ⁽¹³⁴⁾

Justices Rehnquist and White, dissenting, also focused on history/tradition, pointing to states restricting abortion and to the framers of the Fourteenth Amendment as silent on the issue. In Rehnquist's words, “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the amendment.” ⁽¹³⁵⁾ Thus, while the conclusion of Roe was in dispute, both sides acknowledged the centrality of the historical/traditional rationale and treated it in far more detail than had earlier courts.

Troxel v. Granville (2000) concerned the visitation rights of grandparents. Tommie Granville and Brad Troxel, an unmarried couple, had two children. They separated but the children regularly spent weekends with the grandparents; Troxel died; Granville told his parents that they could visit the children once a month and under Washington law, they were awarded more generous terms; Granville married and her husband adopted the children; they challenged the ruling; and the Washington supreme court found for Granville, asserting a fundamental right of parents to control the raising of their children.

Justice O’Connor, writing for a plurality of the Supreme Court, conceded that grandparents played an increasing role in the upbringing of their grandchildren, but thought “the interest of parents in the care, custody, and control of their children [are] perhaps the oldest of the fundamental liberty interests recognized by this Court.” ⁽¹³⁶⁾ She considered the Washington law “breathtakingly broad,” and, as there was no evidence that Granville was an unfit parent, an infringement on this fundamental right. ⁽¹³⁷⁾ The basis for the right was a series of precedents, including Meyer and Pierce, among others.

Justices Souter and Thomas, each concurring, agreed that the parental right was well established, like O’Connor, citing a number of precedents. ⁽¹³⁸⁾

Justice Scalia, dissenting, resisted “the instinct against overregularizing decisions about personal relations” on the ground of “mere tradition,” as “intimate associations are complex.” ⁽¹³⁹⁾ The cases on which the parental right rests, chiefly Meyer and Pierce, have “small claim to stare decisis protection,” and he would not extend their theory to cover this case, and thereby alter family law. ⁽¹⁴⁰⁾ Though Scalia referred in passing to “tradition,” it was given no elucidation.

Justice Kennedy, dissenting, thought the majority ignored evolving family patterns and unwisely rejected “the best interests of the child standard [which] has been recognized for many years as a basic tool of domestic relations law in visitation proceedings.” ⁽¹⁴¹⁾ Thus, his opinion seemed simultaneously to look both forward and backward in time.

Which brings us to Dobbs v. Jackson Women's Health Organization (2022). A Mississippi law banned virtually all abortions after the fifteenth week of pregnancy, except for medical emergencies and severe fetal abnormalities; there were no exceptions for rape or incest. The point was to challenge Roe v. Wade’s holding that the right to choose to have an abortion is a fundamental unenumerated right protected by the Constitution.

Justice Alito, speaking for the Court, began with the unexceptional observation that “Constitutional analysis must begin with ‘the language of the instrument.’” ⁽¹⁴²⁾ Roe asserted that the right to choose to have an abortion is a fundamental right. How can we test that claim? Fundamental rights, he declared, must either appear in the Constitution or be deeply rooted in the nation's history and essential to the concept of ordered liberty. ⁽¹⁴³⁾ Noting that the “Constitution makes no reference to abortion” ⁽¹⁴⁴⁾—indeed, Roe derived it from the right to privacy, which is also not mentioned—Alito inquires as to whether it was deeply rooted in the nation's history. From the 1200s to 1960, no statute, no English case, no state case, no federal case, no legal treatise, and no law review article spoke of an abortion right, except to prevent maternal death or serious bodily injury. ⁽¹⁴⁵⁾ The “most important historical fact,” he added, was “how the states regulated abortion when the Fourteenth Amendment was adopted,” ⁽¹⁴⁶⁾ for Roe had rested on the Amendment's due process clause; “28 out of 37 had enacted statutes making abortion a crime even if it was performed before quickening.” ⁽¹⁴⁷⁾ Nor is abortion implicit in the concept of ordered liberty; different states may view the matter differently. ⁽¹⁴⁸⁾ Roe and its revision, Planned Parenthood v. Casey (1992), ⁽¹⁴⁹⁾ both poorly reasoned, failed to acknowledge that the asserted right failed the test, and should be overturned; “egregiously wrong” ⁽¹⁵⁰⁾ precedents should not be allowed to stand. As abortion does not involve a fundamental right, states may regulate it, provided only that they meet the standard rational basis test, ordinarily, a low barrier.

Alito rejected the notion that overruling Roe and Casey put decisions on contraception (Griswold), same sex intimacy (Lawrence), and same sex marriage (Obergefell) in jeopardy. ⁽¹⁵¹⁾ Unlike them, Dobbs involved “critical moral questions” ⁽¹⁵²⁾ of life and death and affected a non-consenting third party. ⁽¹⁵³⁾

Chief Justice Roberts, concurring, would have upheld the law, but left the question of rejecting Roe “for another day.” ⁽¹⁵⁴⁾ The right to terminate a pregnancy should extend far enough to ensure a reasonable opportunity to choose—and Mississippi offers this opportunity—but need not extend any further. Thus, he would replace Roe and Casey's insistence on the right to choose an abortion before fetal viability with a much more pro-life standard, but the precedents would not be entirely abandoned. The right to choose an abortion would continue to be acknowledged and protected, but its application and effect would be considerably narrowed. A defender of judicial minimalism, Roberts generally favors curtailing the occasions for reversing precedents, as deferring to democratically elected lawmakers and as safeguarding the legitimacy of the Court. ⁽¹⁵⁵⁾ However, the majority perhaps regarded this as a political compromise that was constitutionally both inadequate and unnecessary. ⁽¹⁵⁶⁾

Justice Kavanaugh, concurring, thought that the Constitution was “neutral” on abortion, and, therefore, that the Court must be “scrupulously neutral,” too. ⁽¹⁵⁷⁾ He emphasized that the Court had not outlawed abortion, but instead had left the question to the people and their representatives. He also reiterated Alito's point that the ruling does not cast doubt on Griswold or Obergefell, and he thought it clear that states cannot ban residents from travelling to another state to obtain an abortion. ⁽¹⁵⁸⁾

The concurring opinion of Justice Thomas attracted by far the most attention, apart from Alito's. He thought the due process clause “at most guarantees process,” ⁽¹⁵⁹⁾ and urged the Court to “reject substantive due process entirely.” ⁽¹⁶⁰⁾ He also believed that Griswold, Lawrence, and Obergefell should be reconsidered. ⁽¹⁶¹⁾ However, Thomas did not fully confront the enormous and far reaching consequences of jettisoning substantive due process, consequences that would impact numerous issues in addition to abortion. Indeed, the revolutionary implications of his opinion recalled the comments of Thomas's friend and colleague, Justice Scalia: Thomas “doesn’t believe in stare decisis, period .... If a constitutional line of authority is wrong, he would say, ‘let's get it right.’ I wouldn’t do that.” ⁽¹⁶²⁾ Scalia, who called himself a “faint-hearted” originalist, ⁽¹⁶³⁾ would accept precedents that conflicted with the original public meaning of a constitutional provision or statute in order to avoid disruptions that generated uncertainty and instability; Thomas would not.

Justices Breyer, Kagan, and Sotomayor, in a sixty page dissent, maintained that the Constitution put fundamental rights like abortion “off limits to majority rule.” ⁽¹⁶⁴⁾ They rejected Kavanaugh's claim of neutrality, charging that the decision was a “no compromise refusal to recognize a woman's right to choose.” ⁽¹⁶⁵⁾ They also feared that the same logic could be used to threaten the rights to contraception, same sex intimacy, and same sex marriage, and believed that “it undermines the Court's legitimacy.” ⁽¹⁶⁶⁾

By insisting that an unenumerated fundamental right must be both deeply rooted in the nation's traditions and essential to a scheme of ordered liberty, Alito hoped to preserve substantive due process from attacks like Thomas’, while preventing it from being used to constitutionalize subjective judicial preferences. By requiring both these tests to be met, he placed a heavy burden on rights advocates that mirrored the burden that government faced, when it sought to limit enumerated fundamental rights. He was careful to make it clear that both tests must be met; there might be a deeply rooted right to eat hamburgers or watch football games, but these are not essential to a scheme of ordered liberty, a phrase he borrowed from Justice Cardozo's much cited opinion on Bill of Rights incorporation in Palko v. Connecticut (1937). ⁽¹⁶⁷⁾

However, Alito's argument was undercut by his failure to analyze the very concept of ordered liberty that he pronounced essential. At one point, he indicated that the way to proceed would be to ask what the Fourteenth Amendment “means by the term.” ⁽¹⁶⁸⁾ But instead of proceeding, he simply returned to the history that he thought demonstrated that abortion rights were “not deeply rooted.” ⁽¹⁶⁹⁾ Cardozo had defined rights under the scheme of ordered liberty to mean that “neither liberty nor justice would exist if they were sacrificed,” ⁽¹⁷⁰⁾ but Alito did not even bother to quote the words. Thus, the much vaunted “ordered liberty” test, once stated, was ignored.

Another obvious problem with the tests is that while Alito repeatedly emphasized the importance of the constitutional text, his two criteria were entirely judge-created and had no textual foundation. There is nothing odd about this. For example, the notion that fundamental rights implicate strict scrutiny is well accepted, though it also has no textual justification. More broadly, judicial review, which the Court exercised here, and the concept of fundamental rights itself also have no explicit textual basis. Alito, despite his celebration of textualism, could not avoid the snares of judicial doctrine any more than the justices he criticized.

Alito clearly believed that he was acting in the tradition of judicial self-restraint. Unelected, democratically unaccountable courts should not make policy, particularly, when the issue is morally controversial. ⁽¹⁷¹⁾ Substantive due process had sometimes been used by justices to write their own policy preferences and ideological beliefs into the Constitution, he thought. Indeed, Roe, “exceptionally weak,” ⁽¹⁷²⁾ imposed on the people a particular theory about when the rights of personhood begin; it “required states to regard a fetus as lacking even the most basic right, the right to live, until an arbitrary point in a pregnancy has passed.” ⁽¹⁷³⁾

Thus, Alito lined up with fetal protection laws that include fetuses as rights-bearing persons, though obviously unable to exercise such fundamental rights as freedom of speech or of religion. ⁽¹⁷⁴⁾ Arguably, fetal personhood would implicate both the due process and equal protection clauses, rendering abortion unconstitutional. Kavanaugh in his concurrence declared that this radical argument was “wrong as a constitutional matter,” ⁽¹⁷⁵⁾ but no other justice voiced agreement with this position, perhaps implying that it remains a live option.

“Liberty,” Alito wrote, is so “capacious” ⁽¹⁷⁶⁾ a term that it invites judges to read their own preferences into it, but the temptation should be resisted. Yet his self-restraint that entailed upholding the Mississippi statute also ironically entailed threatening well established decades old precedents, which could not be defended as embodying rights “deeply rooted” in the nation's history. ⁽¹⁷⁷⁾ Supreme Court precedents strictly bind lower courts, but stare decisis is only a “soft rule” ⁽¹⁷⁸⁾ binding the Supreme Court itself, particularly, in constitutional cases. ⁽¹⁷⁹⁾ Accordingly, Alito noted that the rule of precedent is plainly “not an inexorable command.” ⁽¹⁸⁰⁾ Indeed, on occasion (as in Brown), the Court has been widely applauded for reversals. From 1789–2020, the Court reversed its precedents 145 times (about .5% of its total cases); the Roberts Court has actually overturned at a lower rate than the preceding Warren, Burger, and Rehnquist Courts ⁽¹⁸¹⁾ -- notwithstanding the fact that originalism may have disruptive effects. ⁽¹⁸²⁾

It is hard to avoid the feeling that Alito was responding not simply to a jurisprudence he believed to be profoundly flawed, but also to the social forces it seemed to embody and promote. From this perspective, the days when marriage and family were taken for granted as central supports to society are inexorably drifting away. Rates of marriage ⁽¹⁸³⁾ and childbirth ⁽¹⁸⁴⁾ continue to decline; rates of adults living alone continue to rise; ⁽¹⁸⁵⁾ individualistic rights continue to be celebrated at the expense of community obligations; abortion, a facilitator of these unhealthy developments, is defended in moral terms, but in the end it is all about its liberating impact on selfish lifestyles.

For the dissenters, however, reversing precedents in Dobbs collided with substantial reliance interests, for literally millions of people had trusted the precedents as they made extremely important personal decisions over a half century. From this perspective, the rule of precedent serves one of the law's chief goals, stability/predictability, ⁽¹⁸⁶⁾ by offering “assurance against untoward surprise.” ⁽¹⁸⁷⁾ To the extent that parties feel that their “legitimate expectations” ⁽¹⁸⁸⁾ have been misled, overturning precedents cannot escape the impression of unfairness. ⁽¹⁸⁹⁾ As Justice Brandeis put it, “in most matters it is more important that the applicable rule of law be settled than that it be settled right.” ⁽¹⁹⁰⁾ If originalism played into Alito's hands, fidelity to precedent decidedly did not.

The implication of the reliance interests was that the goals of stability/predictability may sometimes be so socially valuable that they justify upholding flawed precedents. ⁽¹⁹¹⁾ Is abortion one of these instances? In Casey, Kennedy observed that “people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” He saw a “promise of constancy” in the decision's granting the “ability of women to participate equally in the social and economic life of the nation [as] facilitated by their ability to control their reproductive lives;” ⁽¹⁹²⁾ dissenting, Rehnquist thought constitutional law was much less important as a contributor to women's progress than improved education and increased acceptance by men. ⁽¹⁹³⁾ In Dobbs, Alito minimized the impact of reliance, indicating that it was not comparable to the tangible commercial interests bound up in property or contract rules; he also considered it hard for the Court to assess the impact of abortion rights on women's lives. Reliance is implicated in situations “when advance planning of great precision is most obviously a necessity;” ⁽¹⁹⁴⁾ abortions, however, result from unplanned activity. ⁽¹⁹⁵⁾ In short, Alito relied on history to demonstrate an absence of constitutional support for abortion, but dismissed history when it constituted an argument from reliance. ⁽¹⁹⁶⁾

Meanwhile, amidst a barrage of abstract issues, an empirical concern was overlooked: is there a viable basis for Alito's two-pronged test or did he simply conjure it from the ether? Consider the three precedents he cited. Moore v. East Cleveland (1977) concerned a zoning ordinance that limits occupancy in a home to family members. Inez Moore lived with her son and her two grandsons, of whom one joined her upon his mother's death. East Cleveland's ordinance featured a narrow definition of “family” that excluded grandsons. Mrs. Moore was convicted of violating the ordinance.

Justice Powell wrote for the plurality. “When a city undertakes such intrusive regulation of the family,” he wrote, “the usual deference to the legislature is inappropriate.” ⁽¹⁹⁷⁾ As “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this nation's history and tradition,” ⁽¹⁹⁸⁾ Powell does not confine the term to “members of the nuclear family,” ⁽¹⁹⁹⁾ but concludes that “the Constitution prevents East Cleveland from standardizing its children—and its adults—by forcing all to live in certain narrowly defined family patterns.” ⁽²⁰⁰⁾ Nowhere does Powell present empirical evidence beyond Meyer and Pierce to show that the Constitution protects the family or that “family” should be interpreted rather broadly. There is no investigation as to the original public meaning of the due process clause or its legislative history. As “tradition is a living thing,” ⁽²⁰¹⁾ Powell seems to be highlighting that the meaning of “family” continues to evolve. As marriage rates are in a steep decline—the 5.1 per 1000 population rate in 2020 was nearly 40% below the 2000 rate ⁽²⁰²⁾ and less than a third of the post-World War II rate—does this have constitutional implications? Should unmarried persons living together be included as “family”? Should caretakers unrelated by blood and law? If constitutional rights attach to family membership, should states be permitted to continue their practice of differential family legislation, reflecting their differences in history and tradition? None of these questions is resolved in Powell's casual usage, which naturally weakens the utility of the test. As to Alito's “implicit in the concept of ordered liberty,” this goes entirely unmentioned.

Michael H. v. Gerald D. (1989) was the second precedent cited by Alito in Dobbs. Carole D. was married to Gerald D., but they separated and she had an affair with Michael H. and gave birth to Victoria. Blood tests established a 98.07% probability that Michael was the father. Carole and Gerald reconciled, and Gerald took on the father's role. California law conclusively presumed that a child born into a family where the husband is neither sterile nor impotent is the husband's child, with no right to a hearing. Michael sued, contending that he had a due process liberty interest as a fundamental right in his parental relationship that California failed to recognize.

Justice Scalia, speaking for a plurality, rejected Michael's claim because he failed to show that his alleged fundamental right was “an interest traditionally protected by our society.” ⁽²⁰³⁾ Had “persons in the situation of Michael and Victoria ... been treated as a protective family unit under the historical practices of our society”? ⁽²⁰⁴⁾ The answer was no: “our traditions have protected the marital family ... against the sort of claim Michael asserts.” ⁽²⁰⁵⁾ The common law as well as statutes back California's practice supporting the integrity of the family, and the presumption of legitimacy is a fundamental principle of the common law. ⁽²⁰⁶⁾ The liberty interest of an “adulterous biological father” to assert parental rights, when the child's mother is married to someone else, has never been recognized. ⁽²⁰⁷⁾ On the contrary, the presumption generally followed is the presumption of legitimacy. Since it is not a fundamental right, Michael's claim does not implicate the due process clause, and there is no reason for the Court to balance the competing claims of Michael and Gerald, who find themselves in a zero-sum situation. Rather, it is left to California to balance the claims through the ordinary political process. ⁽²⁰⁸⁾

The level of analysis is critical here; Scalia's literal reading focused on the historically traditional rights of an adulterous natural father; had he instead spoken of parenthood, family relationships or emotional attachments, the result might have been different. ⁽²⁰⁹⁾ But Scalia's point was that the most specific tradition would be the most useful, as its applicability would be most obvious and the judicial discretion it permitted would be minimized. Utilizing a higher level of generality would “permit judges to dictate rather than discern society's views.” ⁽²¹⁰⁾ The narrow literalness of Scalia's tradition represented his effort to enhance the utility of the concept. His opposition was not to change, he insisted, but rather to Supreme Court driven change, which he regarded as undemocratic. ⁽²¹¹⁾ However, in his heavy focus on history/tradition, ⁽²¹²⁾ nowhere did he speak of concepts essential to ordered liberty, despite Alito's citations.

Justice Brennan, dissenting, thought Michael entitled to a hearing, and presented an extensive attack on Scalia's reliance on history/tradition. He thought the concept “malleable” and elusive, and rejected the notion that it could be located by “poring through dusty volumes on American history.” ⁽²¹³⁾ Reasonable people, he wrote, “can disagree about the content of particular traditions [and] even about which traditions are relevant to the definition of ‘liberty.’” ⁽²¹⁴⁾ There was also the question as to when “a tradition becomes firm enough to be relevant to our definition and the moment at which it becomes too obsolete to be relevant any longer.” ⁽²¹⁵⁾ He also charged Scalia with omitting precedents that did not fit into his traditional narrative, and saw a grave level of analysis error: Scalia had asked not “whether parenthood is an interest that historically has received our attention and protection [but] whether the specific variety of parenthood—a natural father's relationship with a child whose mother is married to another—has enjoyed such protection.” ⁽²¹⁶⁾ He pointed to earlier decisions, which protected the rights of fathers to maintain relationships with their children, even when they were born out of wedlock.

Brennan not only found tradition misapplied; he also thought that it was so inherently backward looking that it discounted important changes in society, in particular, echoing Powell, that “family” and “parenthood” have evolved and now contain a “freedom not to conform,” ⁽²¹⁷⁾ as well as Scalia's “cramped vision.” ⁽²¹⁸⁾ “The plurality ... squashes this freedom by requiring specific approval from history before protecting anything in the name of liberty.” ⁽²¹⁹⁾ Scalia, in Brennan's eyes, “does not recognize that times change, does not see that sometimes a practice or rule outlives its foundations,” ⁽²²⁰⁾ Brennan's general hostility to the history/tradition criterion was partially undermined by his own use of history in the form of precedents and practices.

Washington v. Glucksberg (1997), the third precedent heavily relied upon by Alito in Dobbs, asked whether mentally competent, terminally ill adult patients possessed a substantive due process fundamental right to commit physician assisted suicide. Harold Glucksberg and three others wished to assist the suicide of terminally ill patients in constant pain, in violation of Washington law. ⁽²²¹⁾ The case produced a unanimous result, oddly splintered by five concurrences.

Chief Justice Rehnquist, speaking for the Court, announced that “Our established method of substantive due process analysis ... protects those fundamental rights and liberties which are, objectively. ‘deeply rooted in this nation's history and tradition’ ... and ‘implicit in the concept of ordered liberty.’” ⁽²²²⁾ As to history and tradition, he presented six pages covering over 700 years of Anglo-American history to show that “opposition to and condemnation of suicide—and, therefore, of assisting suicide—are consistent and enduring themes of our philosophical, legal, and cultural heritages.” ⁽²²³⁾ These were followed by three pages listing contemporary state legislation that also condemn the practice. ⁽²²⁴⁾ The purpose of the history/tradition requirement was to “rein in the subjective elements that are necessarily present in due process judicial review.” ⁽²²⁵⁾ As with Michael H, the level of analysis was very specific, covering not the broad liberty to choose how and when to die, but instead the right to physician assisted suicide. ⁽²²⁶⁾

Rehnquist conceded that doctors could withdraw life sustaining treatment and let nature take its course, but insisted on a distinction between killing and letting die (or what some philosophers have termed passive or active euthanasia ⁽²²⁷⁾). The ruling “permits the debate to continue, as it should in a democratic society.” ⁽²²⁸⁾ What Alito failed to mention is that Rehnquist accepted abortion under the history/tradition and ordered liberty standards. ⁽²²⁹⁾

Rehnquist's second criterion, implicit in the concept of ordered liberty, was completely undeveloped ⁽²³⁰⁾ (perhaps because the failure of the history criterion rendered it superfluous) and consisted simply of a citation to Palko. ⁽²³¹⁾ With the failure to establish assisted suicide as a fundamental right, no balancing test was implicated. Yet Rehnquist noted no fewer than a half dozen interests the state had in opposing the practice, which overwhelmed any interests on the other side. All this may help to explain why the Court in Obergefell v. Hodges, the famous same sex marriage case, announced that the Glucksberg reliance on history “is inconsistent with the approach this Court has used in discussing other fundamental rights.” ⁽²³²⁾

In short, none of the three cases cited by Alito as precedents for his two-pronged test in Dobbs are supportive. In Moore and Michael H., history and tradition were rather briefly touched on; in Glucksberg, they were discussed in some depth; however, in none of them was the second criterion, ordered liberty, explored. The three precedents, in sum, do not satisfactorily validate Alito's approach in Dobbs.

Those considering the future might pay attention to Tiwari v. Friedlander, a Kentucky case involving Nepali immigrants seeking official permission in the form of a certificate of need to open a home care agency for Nepali speakers. ⁽²³³⁾ Tiwari argued that the point of the procedure was to create a barrier to entry with the purpose of protecting pre-existing providers, and that it unconstitutionally deprived him and his colleagues of their Fourteenth Amendment due process liberty right to earn a living.

A federal district court in Kentucky clearly thought the policy indefensible, noting competition driven innovations it would discourage; even if a facility would cut patient costs or improve patient outcomes, it could be barred from opening. Congress had dropped its certificate of need mandate and consultants hired by Kentucky had urged the same, but the system continued. Here, there was an obvious need for a Nepali speaking agency, as Louisville had a sizable Nepali community, who were not well served by the pre-existing agencies. Applying the rational basis standard, the court asked whether the law “makes worse the very interest it purports to serve, as well as any other legitimate interest.” ⁽²³⁴⁾ As the law increased costs and reduced access and quality, the court found that the law failed the test. Tiwari satisfactorily stated a claim for relief under the due process clause.

Later, however, the district court, now with a new judge, ruled that Kentucky had met the rational basis standard, whereupon Tiwari appealed to the Sixth Circuit Court of Appeals, which ruled that the program “passes, perhaps with a low grade but with a pass all the same.” ⁽²³⁵⁾ The law may fail to meet its goals, but this is insufficient to require a judicial correction “Our custom instead is to assume that democracy will eventually fix the problem.” ⁽²³⁶⁾ Whether there is a right to earn a living “is for the U.S. Supreme Court, not our court, to make.” ⁽²³⁷⁾ The Supreme Court subsequently denied certiorari. ⁽²³⁸⁾

The right to earn a living has decided discredited Lochner echoes; on the other hand, it will also find some supporters, particularly among libertarians. What will be in play is whether such an unenumerated right exists. If the answer is yes, the contours of the right would need to be spelled out in future cases. Innumerable statutes and regulations involving licensing, wages, and working conditions might impinge on this right and thus be grounds for litigation. Is the prospect so daunting that courts would simply refuse to concede the right? Or would they nonetheless press ahead?

The Constitution, as an astute observer once observed, “was born of prudent compromise rather than principle, ... derived more from experience than from doctrine, and ... was received with an ambivalence in no small part attributable to its ambiguities.” ⁽²³⁹⁾ Disagreement thus was guaranteed, not only as to what provisions mean but more basically, how the meaning was to be ascertained. Plainly, the matter cannot simply be left to the good graces of well-meaning judges sitting as Platonic philosopher-kings. It is obvious, then, that courts require some principle to guide their determination of unenumerated fundamental rights. The most frequently applied criterion is a deeply rooted historical/traditional consensus, which is thought to provide a strong, stable, and satisfactory criterion. The fact of consensus naturally minimizes the likelihood of controversy, always a major plus in designating fundamental rights.

Though the justices do not mention it, the criterion itself is deeply rooted in Western intellectual history and tradition. In considering the bases of authority, for example, Max Weber assigned the pride of place to “an established belief in the sanctity of immemorial traditions and the legitimacy of those exercising authority under them.” ⁽²⁴⁰⁾ Longstanding cultural patterns, likely unwritten, legitimate the exercise of power, generating an emotional respect that is validated by the venerability of the practice itself. Is it unthinking habit or the deliberate adherence to exemplary norms? It hardly matters. The momentum generated by tradition is strong, indeed, sometimes unstoppable.

The Anglo-Irish politician, Edmund Burke, considered history/tradition not only an important source of legitimacy, but also, in general, a social blessing. Thus, he wrote of the British constitution that its “sole authority is that it has existed time out of mind,” ⁽²⁴¹⁾ as this indicated that multiple generations had found it, overall, useful and appropriate. A nation is not created and ruled by pure reason, he observed, but represents “a partnership not only between those who are living, but between those who are living, those who are dead and those who are to be born.” ⁽²⁴²⁾ The ties of obligation go both backward and forward; the purpose of change is preservation. A constitution, thus, is a product of “many minds in many ages. It is no simple, no superficial thing, nor to be estimated by superficial understandings” ⁽²⁴³⁾ [because] a nation ...is an idea of continuity, which extends in time [and] is made by the peculiar circumstances, occasions, tempers, dispositions, and moral, civil, and social habitudes of the people, which disclose themselves only in a long space of time.” ⁽²⁴⁴⁾

Burke was especially impressed by the argument from prudence, which he considered “not only first in rank of the virtues political and moral, but […] the director, the regulator, the standard of them all.” ⁽²⁴⁵⁾ He felt “a presumption in favor of any settled scheme of government,” ⁽²⁴⁶⁾ fearing that disregarding history in preference to theoretical rumination may result in unanticipated consequences that bring with them serious harm; abstract disputations may call into question the most profound matters, perhaps opening the door to demagogues or authoritarians. Modest incremental change drawing on history/tradition is the prudent path.

Burke's views point to a certain incoherence in Alito's argument. Like Burke, he is impressed with history/tradition as a legitimator and teacher. Relatedly, he might think it an unrealistic act of hubris to imagine that Hamilton's judiciary, “the least dangerous branch,” ⁽²⁴⁷⁾ can be the chief engine of social progress. Yet unlike Burke, he seems blind to the advantages of incrementalism, as exhibited in his dismissal of Roberts’ position. In this, Alito may mirror larger patterns in judicial behavior. It is true that apparently revolutionary rulings in hindsight may be seen as culminating a lengthy incremental process. The famous Brown desegregation case, ⁽²⁴⁸⁾ for example, which struck the country as a bolt from the blue, ⁽²⁴⁹⁾ actually followed inevitably and logically from a series of low visibility rulings. ⁽²⁵⁰⁾ But sometimes the Court opts for abrupt change. Miranda v. Illinois (1966) reversed police practice dating back to colonial days in requiring that criminal suspects be informed of their rights; ⁽²⁵¹⁾ New York Times v. Sullivan (1964) rewrote a considerable portion of the venerable law of libel. ⁽²⁵²⁾ Roe changed abortion law overnight, and Dobbs changed it back. The case for a history/tradition-based incrementalism has thus not always been accepted by the Court. Alito, supremely confident, swept it away like crumbs on a tablecloth.

Alito made it clear that the practical consequences of the ruling were not properly his charge, retorting that “how our political system or society will respond to [the] decision” is not the Court's concern. ⁽²⁵³⁾ The justices must “only do [their] job ... to interpret the law.“ ⁽²⁵⁴⁾ In this, he seemed to resemble Weber's politician adopting an ethic of ultimate ends, who will do what is right and “leave the results to the Lord.” Weber contrasts this approach with an ethic of responsibility, which must take “account of the foreseeable results of one's actions.” ⁽²⁵⁵⁾ The problem with Alito's ethic of ultimate ends is that as rights are not absolute, determining their limitations inescapably entails considering the practical results of the law. Thus, an empirical analysis of all the cases decided by the Court in the 2020–2021 term “found that Justices who decry consequentialism or pragmatism often ended up making consequentialist arguments themselves.” ⁽²⁵⁶⁾ Alito might grant the power of Weber's distinction, but add a pair of points in rebuttal, first, that it applies to politicians, not to judges; and second, that it ignores the difference between a choice that is merely morally disagreeable and one that is morally criminal. ⁽²⁵⁷⁾ For Alito, it is plain that choosing abortion is morally criminal. Thus, his declaration: “we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” ⁽²⁵⁸⁾

Does Alito's emphasis on history/tradition impede the updating of the Constitution? The difficulty with the passive voice, of course, is that the actor is omitted. The Constitution does not update itself, but instead, must be updated by unelected and therefore democratically unaccountable judges. When they change the meaning of statutes or regulations, they effectively change the law; in other words, they assume a function the Constitution reserves for the openly political branches. Occasionally, this may be justified to avoid an absurdity. Article II designates the President commander in chief of the army and navy; it would be bizarre to insist on a constitutional amendment to include the air force. Similarly, when the Third Amendment refers to quartering soldiers without the consent of the owner of the house, it is hard to imagine that it does not also apply to sailors. But these absurdities are rare and usually easy to identify. As Justice Thomas put it, “Reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to make difficult empirical judgments.” ⁽²⁵⁹⁾

Yet in the end, the reliance on history/tradition fails to persuade. For one thing, the worship of the past seems an odd preoccupation in a country that has always celebrated The New. Lacking the ancient roots of Britain, America from the earliest days has focused on the future, seeing tomorrow more as opportunity than as snare. Recall Crevecoeur's American man: self-reliant, practical, hopeful. ⁽²⁶⁰⁾ What to traditionalists has seemed good common sense has frequently seemed to many Americans a communitarian romanticism blocking individual-driven progress, the work of fuddy-duddies with nothing but vapid nostalgia to offer.

For relying on a historical/traditional consensus is by definition backward looking and subject to the defects of such an approach. It may, for example, entail relying on decisions taken when large segments of society were effectively excluded from the political process, and is thus inherently biased against these people. To answer whether abortion is a right in the context of the Fourteenth Amendment, for instance, is to anchor it to a time dominated by the view that women are properly subordinate to and dependent on men, who alone could satisfactorily represent their interests, a view that denied women the vote and attenuated their political influence. Thus, the views of women on a supremely important issue that affects only them directly is made quite irrelevant. On the other hand, to tie abortion rights to the feminist tradition, which may be connected to the equal protection clause, will yield an emphatically different result. ⁽²⁶¹⁾ An originalist focusing on the original public meaning of the text of the Fourteenth Amendment might favor the more literal first tradition, but there will be many who believe it has been superseded by the second, which seems to them clearly more robust today. How to choose between competing traditions?

In short, the plea to rely on history/tradition must partly rise or fall on the particular history/tradition selected. When the white South invoked it on behalf of slavery or later on behalf of segregation (or The Southern Way of Life), it was eventually properly rejected. The apparent historical/traditional consensus, at least among the white population, was dismissed as irrelevant. Today's justices naturally do not propose reverting to a brazenly racist past, but taking history/tradition as a legitimating variable will leave them open to embracing a range of problematic arguments. As one careful analyst noted, “Judges working within a traditionalist framework will often narrow or broaden a tradition with the aim either to exclude or include the practice being reviewed.” ⁽²⁶²⁾ In order to avoid this fate, justices are forced to pick and choose among the various histories/traditions proffered, enshrining an element of subjectivity and discretion that calls into question the entire enterprise.

It is also plain that a Burkean argument for history/tradition-based incrementalism comes perilously close to an argument for the status quo; formalizing the consensus on rights may minimize conflict and confusion, but it will change things so little that it may hardly be worth the trouble. As Justice Brennan put it, “if the only purpose of the due process clause is to confirm the importance of interests already protected,” it becomes a “redundancy [that] mocks those who ... wrote the Fourteenth Amendment.” ⁽²⁶³⁾ With this narrow reading, the due process clause will offer scant protection to nonconformists, protecting mainly those who need no protection. Put differently, Alito would have the Court safeguard rights generally accepted and not endangered, rather than generate new ones. ⁽²⁶⁴⁾

Of course, Alito's point is not that he is opposed to change but merely to an unaccountable, undemocratic Supreme Court as the driver of change. If the goal is to be flexible and accommodating, he might ask, why have a constitution, which can only be an obstacle to change? Why not follow the British model and grant all power to the legislature? All of which is to rehearse familiar arguments for a living Constitution able to adapt to change and free society from the dead hand of the past.

There are also technical questions concerning the historical/traditional consensus. Why assume that a consensus supporting a practice is indistinguishable from one viewing it as a judicially enforceable fundamental constitutional right? The consensus may be merely permissive, not mandatory, and the right may not rise to the level of fundamental. There is a consensus supporting driving on the right side of the road, but it is hard to imagine it as a constitutional right. Why assume that if a state has not outlawed a practice, it recognizes it as a right? Perhaps it was simply an oversight. Or a sign of indifference.

There is also the level of analysis problem. A historical/traditional consensus covering the literal facts of the case may seem the most persuasive, but its wider application will necessarily be problematical, undercutting its significance. If Meyer v. Nebraska were taken to concern only the right to teach from a German text, we might hardly notice it. On the other hand, a more abstract level may promise wider application, but may also house vague, ambiguous or inconsistent elements that undermine its utility by generating unwanted consequences. Pro-choice advocates, for example, often chant, “My body, my choice.” Do they also mean to support an unlimited right to sell one's organs, serve as a surrogate parent or engage in incest? Determining the appropriate level of analysis unavoidably is also an invitation to subjectivity, which in constitutional questions we naturally prefer to minimize.

Too, complications inhere in the historical enterprise itself, which Eliot famously found “mixing memory and desire.” ⁽²⁶⁵⁾ Thus, in one of his last opinions, Justice Breyer catalogued a series of practical problems that, together, left the emphasis on historical/traditional consensus in tatters. ⁽²⁶⁶⁾ Judges are not historians, he pointed out, suggesting that their law office history will too often be inadequate, perhaps merely the uncritically accepted work of amici advocates aiming at winning, not at truth. ⁽²⁶⁷⁾ The history they read and the history they proffer reflects advocacy, not disinterested scholarship. As the co-editor of a multi-volume collection of historical documents conceded, “we cannot definitively read the minds of the Founders except, usually, to create a choice of severable possible meanings ... Indeed, evidence of different meanings likely can be garnered for almost every disputable proposition.” ⁽²⁶⁸⁾ Relying on history is especially problematic with lower courts, which may lack the necessary resources and face a heavy work load, but all courts run the risk of cherry-picking supporting evidence and ignoring the rest. Even if courts avoid these perils, they cannot always rely on experts, who will often disagree among themselves or be unable to provide clear and useful answers. Thus, Alito's history lesson in Dobbs seems only partially persuasive; for example, it is true that following the Civil War, abortion was widely criminalized, but prior to that time under the common law abortion was generally permitted before quickening, which at from sixteen to twenty weeks was a very substantial loophole.

Thus far, history and tradition have been literally joined by a slash, for the justices have generally treated them as essentially the same. However, “history” and “tradition” are not synonyms, though the words are obviously related and would seem to overlap. If history, very roughly speaking, refers to what happened, tradition refers to the narrative we have constructed about what we believe happened, often a narrative with a normative point. ⁽²⁶⁹⁾ These narratives may help to shape our opinions, beliefs, and values, as well as our very identities. Thus, while there may be only one objective history, there will always be a plethora of traditions reflecting differences in perspectives, self-interest, memories, and numerous other factors.

Yet Alito and others on the Court persist in ignoring all this messiness, addressing history and tradition, typically the centerpieces of unenumerated rights analysis, in a stunningly casual manner. Sometimes, in fact, “history and tradition” seems like an example of a hendiadys, a figure of speech in which words joined by a conjunction convey a single meaning, like “nice and easy.” Omitting or muddying the distinctions between history and tradition and treating them as unidimensional and linear have the practical advantage of simplifying the task of argumentation. But the price is high, for this approach downplays the differences, the multiple dimensions, the zigging and zagging, and to that extent may be seriously unrealistic and misleading. What is absent from the argumentation is precisely what demands emphasis, and these considerations are not peripheral or trivial, but clearly basic. If the Court has not confronted these questions, it is hard to take seriously its repeated reassurances that it will be guided by history/tradition, concepts that it has barely begun to investigate. As Tallulah Bankhead reported in a very different context, “There is less in this than meets the eye.” ⁽²⁷⁰⁾

In sum, though historical/traditional consensus sounds commonsensical, it does not take much effort to reveal its shortcomings. Which raises the question as to its alternatives; the old cliché is that you can’t beat something with nothing. The chief alternative seems to be citing cases that are presented as pertinent. There is a circularity here, as the Court justifies a finding in terms of prior findings by the Court, which themselves may have hardly had justifications worth discussing.

At other times, the Court, in imitation of the introduction of the Ten Commandments, has simply announced that certain unenumerated rights exist. To those seeking justifications, the Court in its silence appears to echo Ring Lardner's riposte: “Shut up, he explained.” ⁽²⁷¹⁾

If the bases of unenumerated rights were merely of antiquarian interest, none of these problems would matter much. But, of course, the situation is entirely the reverse. Many of the most high profile, impactful, and controversial cases of the past few decades have pivoted on exactly this concept. Commentators focusing on the product, not the process, have often lost sight of this. But that the notion of unenumerated rights remains so intellectually undeveloped in the light of its obvious importance is one of the most glaring shortfalls in modern constitutional law.