Fourteenth Amendment unenumerated rights jurisprudence: an essay in response to Stenberg v. Carhart.

JurisdictionUnited States
AuthorSmolin, David M.
Date22 June 2001

In one of his last opinions before retiring, Chief Justice Warren Burger acknowledged that the soundness of Roe v. Wade(1) "must be tested by the decisions that purport to follow [it]."(2) Declaring that the Court "should reexamine Roe,"(3) Burger found it astonishing that the Court had rejected a requirement that a second physician be present during the abortion of a viable fetus, given Roe's finding of a compelling governmental interest in the life of a viable fetus. He also objected to the Court's invalidation of informed consent and parental notification regulations. The Chief Justice claimed that that while the Roe Court had clearly rejected the right to abortion on demand, post-Roe decisions had implemented a policy encouraging abortion as a positive good.(4) Thus, while Burger joined Justice Blackmun's majority opinion in Roe,(5) he dissented from Justice Blackmun's majority opinion in Thornburgh v. American College of Obstetricians and Gynecologists.(6)

Six years later in Planned Parenthood v. Casey, the Court, sans Burger, was closely divided over the continued soundness of Roe.(7) Four Justices explicitly argued that Roe should be overruled,(8) while two Justices argued that Roe should be reaffirmed and applied in the absolutist manner Burger had found so objectionable.(9) Justices Kennedy, O'Connor, and Souter, who authored the decisive joint opinion, claimed to be reaffirming the essential core of Roe while removing from it, and from the post-Roe decisions, the absolutist elements.(10) The joint opinion purported to accord respect to the relevant state interests, and thus claimed a willingness to uphold abortion regulations so long as the core right of a woman to decide whether or not to abort a non-viable fetus was not violated.

In Stenberg v. Carhart,(11) Justice Kennedy played the role of Chief Justice Burger. Kennedy, like Burger before him, complained that the moderate decision he joined was misapplied by the majority to invalidate minimalist abortion regulations. Somehow, the moderate Casey precedent was used to justify the more encompassing Stenberg decision.(12) While Justice Kennedy has not yet called for a reexamination of Roe or Casey, his Stenberg dissent forcefully expressed a sense of betrayal and even moral revulsion regarding the majority's interpretation of Casey.

Chief Justice Burger's belief that a precedent must be judged -- and understood -- by the opinions that apply it should be taken seriously. Therefore, it is appropriate to examine why the Roe and Casey doctrines have been expanded to the point where both relevant state interests and traditional rules of constitutional adjudication are now completely submerged. This pattern has not developed randomly, but instead arose from medical, cultural, and psychological factors inherent in the abortion liberty. Particularly because the joint opinion in Casey avoided a reexamination of the abortion liberty by arbitrarily invoking the principle of stare decisis,(13) the Court should engage in a thorough analysis of the nature and structure of abortion liberty in future cases.

The Supreme Court's abortion jurisprudence has developed as a part of the broader doctrines of substantive due process and the right of privacy. The question of unenumerated rights posed by these doctrines goes to the heart of the Court's role within our system of government, and can raise troubling issues as to the legitimacy of the Court's decisions. It is one thing for the Court, following the theory of Marbury v. Madison,(14) to invalidate legislation found to be in clear violation of an explicit constitutional command; it is quite another for the Court to claim the authority to invalidate legislation based on rights not mentioned in the Constitution. Unless such unenumerated rights can be firmly grounded in the overall text, structure, history, principles, or jurisprudence of the Constitution, their use to invalidate legislation can appear illegitimate.


    During the era of economic substantive due process, the Supreme Court in holdings and dicta identified several non-economic rights of association as fundamental constitutional liberties. Thus, the Court during the 1920s repeatedly held that parents possessed a fundamental liberty to direct the education and upbringing of their children.(15) Meyer v. Nebraska,(16) one of the key parental rights decisions, contained significant dicta acknowledging as fundamental the rights to marry and establish a family. Meyer implicitly found that the Fourteenth Amendment had constitutionalized common law liberties, infusing within the liberty protected by the Due Process Clause a substantive component of liberties previously protected by the common law. The Court stated that Fourteenth Amendment liberties included

    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.(17) The Court has never elaborated or explained Meyer's claim that the Fourteenth Amendment constitutionalized common law liberties. Nor has the Court ever linked the history of the Fourteenth Amendment in any significant way to the doctrines of substantive due process or the right of privacy. Thus, the animating concern of Section One of the Fourteenth Amendment for the rights of the freed slaves (and African-Americans generally), has not been used as an explicit guide in the area of unenumerated rights. Yet perhaps by constitutionalizing the common law liberties of "free men," the Court left an implicit reminder of the connection between emancipation and unenumerated rights.

    Furthermore, Meyer's list of common law liberties include some of the most important rights that were denied to slaves. Slaves lacked control over their own labor and its fruits,(18) and therefore did not have the right "to engage in any of the common occupations of life." In some states, it was a crime to teach a slave to read. They were also generally denied an education,(19) and were thus denied the common law liberty to "acquire useful knowledge." Their marital and parental roles were controlled by their owners, and they were not permitted to contract legal marriages.(20) Hence, the common law liberty "to marry, establish a home, and bring up children" was denied and distorted. The master's monitoring of the slaves' religion to avoid rebellion, and the prohibitions on their education(21) severely limited their right "to worship God according to the dictates of conscience." Slaves were thus denied most of the essential liberties granted in the English common law. Therefore, genuinely elevating them to citizen status, which was accomplished by the Thirteenth Amendment and the first sentence of the Fourteenth, also required constitutionalizing basic common law liberties.

    Somerset v. Stewart,(22) an English case holding slavery incompatible with common and natural law principles, highlighted the fundamental contradiction between slavery and the common law tradition of ordered liberty. This tradition nourished various forms of anti-slavery constitutionalism in antebellum America and served as a foundation for the framers of the Fourteenth Amendment. It viewed American law, as represented both by the common law and the Constitution, as essentially libertarian in nature. Accordingly, the institution of slavery was an aberrant, local phenomenon, not a normative part of our nation's constitutional tradition. Within this tradition, natural law, the common law, and American constitutionalism flow from the same morally based yet libertarian stream.(23)

    The Meyer dicta, interpreted in the light of anti-slavery constitutionalism, suggests that a purpose of the Fourteenth Amendment was to provide constitutional guarantees of common law liberties to the freed slaves. Marital, parental, and familial rights are essential to that purpose, given that the nineteenth-century critique of slavery often focused on the failure of slavery to protect those relationships.(24) Furthermore, the framers of the Fourteenth Amendment were particularly disturbed by the content of post-Thirteenth Amendment "apprenticeship" statutes, which violated parental rights by allowing minors to be forced to live with and work for their former masters.(25)

    The Court's failure to link the history of the Fourteenth Amendment to its development of the doctrine of unenumerated rights has multiple sources. In the Slaughterhouse Cases,(26) the Court emptied the Privileges and Immunities Clause of the Fourteenth Amendment of any significance. The "privileges or immunities of citizens of the United States" is a pregnant phrase, adapted from Article IV, Section 2 of the Constitution, which arguably should have served as the locus for debates over the doctrines of the incorporation of the Bill of Rights and unenumerated rights. The privileges and immunities of citizenship concept is an important link between the anti-slavery constitutionalism of antebellum America and the text and intent of the Fourteenth Amendment. It links common law liberties, a natural law tradition of ethically ordered liberties, and unenumerated rights.(27)

    Once the Fourteenth Amendment's Privileges Clause was abandoned, it became easier to lose touch with the historical jurisprudence of the Fourteenth Amendment. The transfer of the issue of unenumerated rights to the Due Process Clause decontextualized the issue. Interpreting the word "liberty" in an expansive manner beyond freedom from restraint, in a context where the Court had virtual amnesia about the animating issues of slavery and freedom, made the Court's discussions overly abstract. Thus, in discussing "liberty's" protection of the...

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