Saying the Quiet Part Out Loud: Unenumerated Rights After Justice Thomas's Dobbs Concurrence

• Publication year: 2023

Saying the Quiet Part Out Loud: Unenumerated Rights After Justice Thomas's Dobbs Concurrence

Zachary Mullinax

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Saying the Quiet Part Out Loud: Unenumerated Rights After Justice Thomas's Dobbs Concurrence

Zachary Mullinax^*

I. Introduction

On May 2, 2022, an anonymous leaker released Justice Samuel Alito's draft majority opinion in Dobbs v. Jackson Women's Health Organization.¹ The opinion, dated February 10, overruled the Supreme Court of the United States's landmark abortion rulings in Roe v. Wade² and Planned Parenthood v. Casey³ to hold that the U.S. Constitution did not protect a right to obtain an abortion.⁴ Following vociferous criticism, the Court decided the case on June 24, 2022, issuing an opinion functionally identical to the leaked draft.⁵ Now, after decades of contrary precedent, the Fourteenth Amendment's Due Process Clause (Due Process Clause)⁶ is interpreted not to protect the right to obtain an abortion.⁷ The holding is clear, but an unanswered—and perhaps more

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consequential—question is what influence Dobbs will have on the Courts future unenumerated rights cases.

Before Dobbs, the Court primarily applied two alternative tests to assess whether the Due Process Clause implicitly protected a claimed right. One method, the "history and tradition" test, asks whether a claimed right is "'deeply rooted in this Nation's history and tradition'" and "'implicit in the concept of ordered liberty.'"⁸ It focuses on historical laws and practices to determine whether a claimed right was generally considered implicitly protected by the Constitution, such that "neither liberty nor justice would exist if [that right] were sacrificed."⁹ The other method, derived from Griswold v. Connecticut,¹⁰ relies on claimed "penumbras and emanations" that surround explicit constitutional guarantees and create general "zones of protection" covering rights of the same kind as those expressly protected.¹¹ Where the "history and tradition" test looks for historically protected rights, the "penumbras and emanations" method often extends alleged protected zones to cover practices some Justices consider essential to liberty in a new era.¹² The Dobbs majority applied the "history and tradition" test and implied that it would do so in all future unenumerated rights claims,¹³ casting doubt on the cases applying the "penumbras and emanations" method.

This Comment proposes a path for the Court's unenumerated rights jurisprudence, and for related legal developments, after Dobbs. It does not take a position on the substantive issues in Dobbs or any other unenumerated rights case. Instead, this Comment attempts to discern the best legal and political method to protect new rights—regardless of substance—after Dobbs. This Comment considers judicial and political procedures that could secure new liberties better than simple reliance on Supreme Court decisions. This Comment necessarily explores the substance of some unenumerated rights cases, but it does so only to analyze competing methods of recognizing rights that might best enable either side of any substantive issue to secure their preferred liberties. Love Dobbs or hate it, it lays bare the Court's inability to eternally cement any right in the constitutional order.

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Structurally, this Comment first describes the "history and tradition" test's methodology and assesses its compatibility with Griswold's "penumbras and emanations" method. It concludes that the two methodologies, and the cases relying on them, are inconsistent and require the Court to adopt one or the other. This Comment then argues that the Court should embrace the "history and tradition" test as the exclusive measure for unenumerated rights claims under the Due Process Clause. This Comment subsequently critiques the alternative "penumbras and emanations" methodology, as applied by the dissenting Justices in Dobbs. Finally, this Comment concludes by suggesting that if the Court adopts the "history and tradition" test for unenumerated rights, the People should pass a constitutional amendment to lower the threshold to pass future amendments. If the Court only recognizes rights exercised historically, the People must be able to amend the Constitution to adapt its protections to new eras.

II. INCONSISTENT TESTS FOR UNENUMERATED RIGHTS

The "history and tradition" test examines laws existing around the time of the American Founding and around 1868, when the Fourteenth Amendment was ratified.¹⁴ It considers state and federal law, state and federal court holdings, authoritative scholarly treatises, and even pre-Founding common law principles to objectively determine which rights were historically protected in the American legal tradition.¹⁵ The test presumes that the People's implicit understanding of unstated yet protected rights was codified into law when the Constitution was established in 1791 and amended in 1868, when the Fourteenth Amendment codified due process protection for certain unspecified "libert[ies]" later incorporated against the states.¹⁶

The "history and tradition" test is neither completely objective nor free from the shortcomings of incomplete, incorrect, or inconclusive historical records. Still, it attempts to determine which rights were actually considered protected when the People adopted or amended their Constitution. The Supreme Court of the United States applied this methodology, for example, in Washington v. Glucksberg.¹⁷ The Court

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considered Anglo-American common-law, early colonial laws, and state laws around the time of the Fourteenth Amendment's adoption to conclude that historically widespread and consistent criminalization of assisted suicide demonstrated that the Constitution did not implicitly protect a right to physician-assisted suicide.¹⁸

After Dobbs, the Court seems poised to apply the "history and tradition" test for all unenumerated rights claims. For the majority, Justice Alito unequivocally stated: "[the Due Process Clause] has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'"¹⁹ A five-Justice majority concluded that this methodology determines which unenumerated rights are "implicitly protected" by the Constitution.²⁰ In his concurrence, Justice Kavanaugh maintained that the Constitution "protects those unenumerated rights that are deeply rooted in the Nation's history and tradition and implicit in the concept of ordered liberty."²¹ In his view, "the dispositive point in analyzing American history and tradition for purposes of the Fourteenth Amendment [abortion] inquiry is that abortion was largely prohibited" in both 1868 and in 1973.²² Though opposed to the "substantive due process" method of locating substantive, unenumerated rights in the Fourteenth Amendment's Due Process Clause, Justice Thomas noted that the majority properly applied the Court's substantive due process precedents using the "history and tradition" test.²³

The Court's conservative majority even favors the test in areas where it is not typically applied, recently conducting a historical analysis to

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resolve gun rights²⁴ and Establishment Clause²⁵ cases. The "history and tradition" test appears here to stay, and that should be a net positive. As discussed below, infra Section III, the "history and tradition" test is most faithful to the Constitution's text and structure and best matches the Court's institutional capacity relative to other methodologies. But whatever questions adopting the "history and tradition" test might put to rest, the Court would have to determine how to treat past unenumerated rights precedents whose methodology flatly contradicts the new interpretative standard.

The Court is unlikely to revisit cases like Obergefell v. Hodges,²⁶ Lawrence v. Texas,²⁷ and Griswold, and those cases would probably present compelling stare decisis arguments if it did.²⁸ But a Court that values ideological consistency²⁹ cannot easily avoid what Justice Thomas correctly points out and the dissenters justifiably fear—Dobbs's "history and tradition" test cannot logically be reconciled with prior unenumerated rights precedents relying on "penumbras [and] . . . emanations"³⁰ and the supposed "right to define one's own concept of existence."³¹ Though the Court likely will not reverse, or even revisit, other landmark substantive due process cases,³² it must prospectively reconcile or choose between the two unenumerated rights methodologies.

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A. Methodological Inconsistency as a Barrier to Reconciliation

Reconciliation is unlikely without suspect distinctions or legal fictions. There is little overlap between the "history and tradition" test and the "penumbras and emanations" precedents. Various pre-Dobbs substantive due process precedents do not apply the "history and tradition" test or turn on any historical evidence. A representative sample includes those Justice Thomas wants the Court to reconsider: Obergefell, Lawrence, and Griswold.³³ The rights protected—gay marriage, private consensual sexual conduct, and married persons' access to contraceptives, respectively—would not pass the "history and tradition" test.³⁴

For example, the Court actually resolved Griswold with Justice Douglas's famous assertion that the Bill of Rights's specific guarantees have "penumbras, formed by emanations from those guarantees that help give them life and substance."³⁵ These unenumerated protections, said the Court, are necessary to give the enumerated guarantees full meaning.³⁶ Justice Douglas's opinion identified the First, Third, Fourth, Fifth, and Ninth Amendments as specific guarantees creating "zones of privacy" that ultimately include married persons' right to access contraceptives.³⁷ Justice Goldberg's concurrence, joined by Justices Warren and Brennan, likewise emphasizes the Ninth Amendment's³⁸ importance...