Not Deeply Rooted, But Deeply Fundamental: Grounding Unenumerated Rights In a Post-Dobbs World
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court solidified its position on determining the validity of unenumerated rights. The Court asked whether these rights are deeply rooted in the history and tradition of the United States, and essential to our ordered liberty. This inquiry is not new, but the push-and-shove between a substantive due process doctrine and historically, deeply rooted rights has appeared to go both ways in the past century. What does the Court’s firm stance mean for fundamental rights that are not mentioned anywhere in the Constitution? Unenumerated rights that have previously been acknowledged and protected under the idea of substantive due process now seemingly stand on the precipice of legal decay. By overturning Roe v. Wade, the Supreme Court has proved it is no longer interested in finding support for these unenumerated rights in either the Due Process Clauses of the 5th and 14th Amendments, or in the penumbras of other amendments where a right to privacy has been inferred.
My thesis is that determining which rights are fundamental based on whether they are deeply rooted in America’s history and tradition is antithetical to the very idea of the Equal Protection Clause and the intent of the Civil War Amendments. In order to remedy the long history of misogyny, racial discrimination, and homophobia in this country, fundamental rights that may not have existed at either the Founding or immediately after the Civil War are nevertheless still fundamental to ordered liberty. In a sense, to promote the very vision of the Equal Protection Clause, these rights are owed to individuals, whether they are enumerated or not. I argue that these fundamental rights must be re-enumerated in the absence of their place in the Constitution.
In Part I, this Essay examines the flaws of privacy and the Due Process Clause as a justification for unenumerated rights such as marriage equality, abortion access, and the right to contraception. Part II explores current state initiatives that seek to protect unenumerated rights at the state level, and explains how state constitutions can be a place to enshrine fundamental rights. Part III proposes solutions to protecting unenumerated rights at the federal level, including renewing Congressional focus on the Equal Rights Amendment.