Sunday, May 15, 2022
The leaked draft SCOTUS opinion overturning Roe v. Wade shares a hostility to unenumerated rights similar in kind to what some Senators expressed during the confirmation hearing of soon-to-be Justice Ketanji Brown Jackson. Critics often say that unenumerated rights lack legitimacy because they have no specific textual anchors. Instead, the criticism goes, they reflect nothing more than a judge’s political views treated as constitutional gloss – except, of course, when the critic likes the result or cannot deny the right without seeming foolish or racist.
To be sure, Justice Alito’s Dobbs draft did not deny that implied rights exist. After noting that abortion is not in the Constitution, a factual statement that can also be said of separation of powers, Alito limited what he dubbed “implied rights” to those “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty,” a judge-made formulation that does not by itself cabin the interpretative exercise and leads to debates about history. In some hands, it freezes rights to narrow conceptions that address specific problems familiar to those responsible for the Bill of Rights when ratified in 1791.
Others, however, recognize that the quest for a “more perfect union” involves understanding root concepts and applying them to novel modern fact patterns. That is what Justice Kennedy attempted in Obergefell v. Hodges, the same-sex marriage opinion in which Alito’s dissent argued, as in the Dobbs draft, that the issue belongs to the individual states and not to constitutional argument.
In evaluating a right to same-sex marriage, Kennedy noted that “Loving [v. Virginia] did not ask about a ‘right to interracial marriage.’” Certainly, interracial marriage was neither “deeply rooted in this nation’s history and tradition” nor “implicit in the concept of ordered liberty.” Instead of looking for historical validation, Kennedy wrote that Loving and other marriage cases “inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.”
The determination of whether “liberty’ is limited to conceptions based on experience in 1791 or even 1868, when states ratified the Fourteenth Amendment, or more expansively read to apply analogous concepts to modern questions provides the basis for the real debate. The Framers anticipated that some might deny the existence of unenumerated rights and provided explicit constitutional text to rebut the argument: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Doing so, however, provided no interpretative guide.
To James Madison, the Ninth Amendment’s simple sentence embodied "the great residuum" of rights that people possessed. He told the First Congress in defense of his draft bill of rights that Americans need not fear that an omission means denial. He pointed to the British common law we inherited, where advocates of individual liberties as barriers to government overreach were able to secure a wide range of rights in Britain without written protections. In doing so, Madison sought to prevent those interpreting the Constitution’s rights regime from drawing an adverse inference from absence in the text.
It is also important to keep in mind another aid courts have used in construing the Constitution that applies with equal force to unenumerated rights. As Chief Justice William Howard Taft wrote, those who framed the Constitution “were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary.” They valued the interpretative craft that Lord Edward Coke brought to Magna Carta, transforming it from exemptions from royal control that largely benefited the landed class into a celebrated bulwark of liberty that had a special appeal and application to the grievances of colonial America.
That type of contextual interpretation bound to experience was endorsed by Madison. During a congressional debate about constitutional limitations relating to the Jay Treaty, Madison expressed astonishment that members would ask him to explain the Constitutional Convention’s take on the issue before the House. He explained that, based on agreements to disagree and his own doubts about his ability to reconstruct his thinking during the Convention, the views of the framers “could never be regarded as the oracular guide in expounding the Constitution.”
If we are left to our own wisdom in attempting to discern how timeless principles apply to modern dilemmas, then we confront a very human problem of reading an 18th century document and the history behind it with 21st century eyes and values. Thus, those who seek to empower parents with more power to object to school curriculum insist on an unenumerated right discovered in Meyer v. Nebraska, and Pierce v. Soc’y of the Sisters, holding that parents have a right to direct the education of their children. The decisions placed the “liberty” at issue in the Fourteenth Amendment’s Due Process Clause and read liberty broadly. Meyer described liberty to embrace more than “merely freedom from bodily restraint but also the right of the individual 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.” State courts had reached similar conclusions on parental rights, not based on their state constitutions, but on their readings of the common law.
Interestingly, Meyer’s and Pierce’s use of family to establish a parental educational right provided building blocks that established the fundamental nature of the right to marry, even though nothing in the Constitution addresses marriage or education. Still, the common law did provide a basis for marriage. It is the use of a common-law methodology that imposes the requirement of a search warrant to prevent unlawful entry into a home as well as the use of remote modern eavesdropping devices that involve no physical entry.
Similarly, the tools we use to understand the application of unenumerated rights must be read to embrace the underlying concept of liberty in light of modern antidiscrimination principles, the organic nature of the common law, and their place in understanding our Constitution. While such an approach is not as unbounded as it might seem, it is also not outcome-determinative. Inevitably, we depend on the wisdom of those we entrust with interpreting our rights to learn from the lessons of the past and remain mindful of the impact that can accompany radical reinterpretation, whether it leads to novel decisions or retrenchment.
In the end, Judge Learned Hand’s description of “The Spirit of Liberty” may best explain the scope of our liberties. Stating that he was unable to define the spirit of liberty, he still supposed that it embodies the idea of uncertainty being “not too sure that it is right;” “seeks to understand the mind of other men and women;” and “weighs their interests alongside its own without bias.” Most importantly:
Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.
 410 U.S. 113 (1973).
 Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Interestingly, earlier in Glucksberg, the Court describes the test in all due process cases as being an examination of “our Nation's history, legal traditions, and practices.” Id. at 710. Many subsequent formulations, like the Dobbs draft, leave out “practices.”
 576 U.S. 644 (2015).
 Id. at 736 (Alito, J., dissenting).
 388 U.S. 1 (1967).
 Obergefell, 576 U.S. at 671.
 U.S. Const. amend. ix.
 James Madison, Speech Introducing Bill of Rights (June 8, 1789), available at http://press-pubs.uchicago.edu/founders/documents/bill_of_ rightss11.html (linking unenumerated rights to a constitutional framework that created a federal government of limited powers).
 1 Annals of Cong. 454 (Jun. 8, 1789).
 Ex parte Grossman, 267 U.S. 87, 109 (1925).
 See Klopfer v. North Carolina, 386 U.S. 213, 225 (1967).
 5 Annals of Cong. 775-76 (Apr. 6, 1796).
 262 U.S. 390 (1923).
 268 U.S. 510 (1925).
 There is a substantial argument that a better source of implied liberties is the Privileges and Immunities Clause, read in conjunction with the Ninth Amendment, but that debate, which has not won a majority on the Supreme Court, is beyond the scope of this post.
 Meyer, 262 U.S. at 399.
 See, e.g., Sch. Bd. Dist. No. 18, Garvin County v. Thompson, 103 P. 578, 579, 582 (Okla. 1909) (holding that a school may not expel students, who at the direction of their parents, refused to participate in singing lessons, and holding that “[a]t common law the principal duties of parents to their legitimate children consisted in their maintenance, their protection, and their education,” and that the parent’s right “is superior to that of the school officers and the teachers.”).
 See Obergefell, 576 U.S. at 667.
 See Meister v. Moore, 96 U.S. 76, 81, 24 L. Ed. 826 (1877).
 Learned Hand, “The Spirit of Liberty” (1944).