Wednesday, June 08, 2022

Rewriting the Rule for Rights

Guest Blogger

Joseph Blass

The right to an abortion is not the only constitutional rule rewritten in the leaked draft opinion for the upcoming case Dobbs v. Jackson Women’s Health Organization: Justice Alito also quietly slips in a three-letter word that would change the very criteria under which unenumerated rights receive constitutional protection. The opinion insists that reversing Roe v. Wade and Planned Parenthood v. Casey threatens no other precedents protecting unenumerated rights (though many commenters disagree, particularly regarding same-sex marriage and contraception), but by changing the rules under which such rights are protected, the new test may provide the legal basis to overrule those precedents without needing to rely on anything the Court says about abortion or privacy. And this new test will not only apply in cases challenging existing precedents, but will also block the recognition of rights that have not yet been claimed in court. 

It has long been settled that the Constitution protects rights not explicitly described in it: the Ninth Amendment specifically says that the document’s list is not exhaustive. Discerning and protecting unenumerated rights is important: at various times American governments have tried to prevent Americans from marrying, from teaching their children a language other than English, from refusing medical treatment, or from traveling across state lines, and the only reason they were unsuccessful is that the Supreme Court intervened and recognized an unenumerated right the government was not allowed to intrude on. And that list does not even include the panoply of privacy rights—like the right to use contraception or to privately engage in consensual sex—that commenters fear Dobbs will threaten. Even the right to be presumed innocent until criminal charges are proved beyond a reasonable doubt is not enumerated in the Constitution, and courts have had to protect it from government intrusion. But the Constitution does not specify a test for deciding whether some claimed right is protected. The Court has had to craft such tests, and they have become a body of settled law.  Justice Alito’s draft opinion announces that Roe and Casey must be overruled under a test used in three of the Court’s earlier cases, Washington v. Glucksberg, Timbs v. Indiana, and McDonald v. Chicago. But he mischaracterizes that test.

Compare Justice Ginsburg’s statement of the test in Timbs with Justice Alito’s citation to her statement (emphasis my own). Justice Ginsburg writes that a right is protected under the Constitution’s Due Process Clause “if it is fundamental to our scheme of ordered liberty, or deeply rooted in this Nation’s history and tradition” (internal quotations omitted). But Justice Alito now writes: “Justice Ginsburg’s opinion for the Court in Timbs [concluded] that the Eighth Amendment’s protection against excessive fines is ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Nation’s history and tradition.’” See the difference? Justice Alito slices Justice Ginsburg’s statement of the test in Timbs in half around the word “or,” sandwiching her quoted statements of the branches around a new “and”. The opinion states the test four separate times, each time using “and” to connect the two branches. But up until this draft opinion the test has been disjunctive: in McDonald, Justice Alito states the test much as Justice Ginsburg did in Timbs, using “or.” And so does Chief Justice Rehnquist in Glucksberg, the case that originated the test by drawing together its branches from prior Due Process precedents.

Glucksberg merits an aside that requires a bit of traipsing into the linguistic weeds. In Glucksberg, Chief Justice Rehnquist first states the test with an “and,” writing that “the Due Process Clause specially 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’”. This is the statement to which Justice Alito first cites. But in Glucksberg, Chief Justice Rehnquist repeats the test just a few pages later using “or,” which suggests his earlier “and” is not a logical conjunction but rather enumerates a list. Think of it this way: if I declare, “I make breakfast for people who are awake and alert,” you might think a yawning guest will not eat, but if I say “I make breakfast for people who are awake and asleep,” you will understand that everyone eats in my house. Unless Chief Justice Rehnquist announced different tests within a few pages, his use of “or” shows that the earlier “and” should be read to enumerate alternatives, as the Court did in Timbs and McDonald. And indeed, since Glucksberg, courts have at times found the test satisfied by only one of the two branches and have not required both: for example, a grandparent’s right to establish a parental relationship with a grandchild was protected as a traditional right, while a lawful permanent resident’s right to a bond hearing while awaiting complex immigration proceedings was found to be inherent in ordered liberty. The test previously required that one of two inquiries be satisfied; as rewritten by Justice Alito, it will now require both.

Logical connectives are slippery beasts. Rare is the text where a careful reader cannot find an ambiguously attached ‘and’ or an imprecisely inclusive ‘or.’ But Supreme Court Justices are careful wordsmiths. The test repeatedly announced in Dobbs is a subtle but significant alteration to the alternative-prongs test announced in Glucksberg and restated in Timbs and McDonald. The old test protected rights that are either traditional or inherent to liberty: as Justice Kennedy wrote in Obergefell, “History and tradition . . . do not set [fundamental rights’] outer boundaries.” Justice Alito describes his new test as only protecting rights that meet both prongs, that fall within “Our Nation’s historical understanding of ordered liberty.”  Thus the effect of this opinion—if published as the decision of the Court—will not only reverse Roe and Casey, but will change the standard by which the Constitution protects unenumerated rights. This might be the means through which the Court repudiates other Substantive Due Process rights like the rights to same-sex marriage or to use contraception: it might find that people’s reliance on these rights have led those rights to become inherent to our notion of ordered liberty, but that they are insufficiently rooted in American history and tradition, and therefore are not protected by the Fourteenth Amendment.

But changing this test will not only threaten established precedents.  It will make it harder for courts to recognize rights that have not yet even been claimed in Court. As Justice Stevens pointed out in his dissent in McDonald, historical views can be just plain wrong, and we should not chain ourselves to them. It is difficult to predict now what rights will seem self-evidently core to our future society, just as the founders would have had trouble imagining what rights we take for granted today. But the Dobbs draft opinion’s new requirement that all unenumerated rights be rooted in American historical tradition will mean the Constitution only protects the rights we already enjoy, and emerging rights will receive no constitutional protection no matter how essential they become to Americans’ lives. What a difference a word makes.

Joseph Blass is Law and Science Fellow, Northwestern University. You can reach him by e-mail at

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