Substantive due process and rights the constitution is silent about

A WaPo article considers rights that the US Constitution says nothing about. Despite that, the Supreme Courts has found some rights to be inherent in the Constitution. One example is the right to abortion, which the current Christian nationalist Republican Supreme recently nullified. Other constitutional rights that have been found over the years include the right to free speech by legal entities like corporations. The right to procreate was also read into the Constitution. More recently, corporations have been found to have the right to express religious beliefs, e.g., by refusal to provide insurance coverage for birth control by companies whose mostly Christian owners oppose. 

The WaPO writes:

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-Tex.) 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.

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.

The article goes on to point out that the current radical right Supreme Court has fully adopted a backward-looking legal mindset.[1] Specifically, it relies on the “deeply rooted in this Nation’s history” test that Sam Alito relied on to overturn Roe v Wade and the constitutional right to an abortion. That has two major implications. First, marginalized groups and individuals in those groups will lose constitutional protections that were thought to be settled law. 

Second the Republican Supreme Court has obliterated a way to update the Constitution. The courts can allow discrimination and violation of civil rights that judges deem to not be deeply rooted in this Nation’s history. This could be worse because the Constitution was written by White, property-owning men. It had major status-based exclusions, e.g., non-Whites, women and non-land owners. Today would not be considered a particularly democratic document. As time passes, America becomes more diverse and aware of its diversity. That creates a perception of illegitimacy that will become more glaring and divisive over time.

This is another warning that Christofascist Republicans on the Supreme Court intend to gut American federal government, civil liberties and regulations. The intent is undermine secularism, regulations and civil liberties. Despite a majority that either rejects it or is deceived-ignorant about it, America is moving toward some kind of a kleptocratic, fascist Christian theocracy under Christian Sharia law and a bigoted, vengeful Christian Taliban.

Footnote: 

1.  WaPO describes the origin of the backward-looking mindset like this:

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.

I incorrectly thought that Washington had been overruled by later Supreme Court decisions, but it wasn’t. When Alito overturned Roe in the Dobbs decision, he relied on the “deeply rooted in this Nation’s history and tradition” test in Washington to obliterate the constitutional right to an abortion. The same reasoning is now being used to obliterate all kinds of laws, including gun control laws. But even if Washington had been overruled, Alito and the Republican radicals would have reinstated it. That test is core radical right authoritarian capitalist and Christian nationalist dogma.