Finding Unenumerated Rights: The Glucksberg Test
So far, I’ve spent a lot of time asking where unenumerated rights come from. The Ninth Amendment would seem to be the obvious home for unenumerated rights, but SCOTUS has taken us there via a more circuitous route, substantive due process.
But assuming you buy the premise of constitutional rights that are not specifically listed but still protected by the constitution, you’re left with the inherent quandary of figuring out what they are.
The Supreme Court described the test that’s still utilized today in Glucksberg v. Washington, a case finding no unenumerated right to physician assisted suicide. The Court said that in order to be recognized as a constitutionally protected liberty, the right must be “deeply rooted in this Nation's history and tradition," and “implicit in the concept of ordered liberty.”
So how do we know if something is deeply rooted? You do of course peruse the obligatory precedents from late medieval England. But you especially want to look at state laws, at the founding, over the course of American history and at the present.
So the case was easily resolved right there, physician assisted suicide was illegal in 49 states and has been universally outlawed since the founding. Plus, you know, Blackstone.
But this analysis begs the question, what is the right that’s being tested? And that question is the real crux of the Glucksberg test. How you describe a novel right, and particularly how narrowly or broadly you define it, will nearly always determine whether you find the right is deeply rooted or not.
Broadly defining a right at an abstract level, such as “privacy,” liberty,” or “bodily integrity,” will typically support finding it deeply rooted. Under this approach the request in a given case, here physician assisted suicide, is just a specific application of the more general right, bodily integrity. And surely bodily integrity is a concept deeply rooted in the Anglo-American legal tradition.
But if you define a proposed right narrowly, as the Glucksberg court did, then you are far less likely to find it deeply rooted for the circular reason that a new right is by definition not previously recognized.
These divergent approaches are on display in the Court’s abortion case law. Roe relied on the right a privacy, surely a deep and long held value. Conversely, Dobbs characterized the question narrowly as whether abortion itself was deeply rooted. According to history as recounted by Justice Alito, it is not.
That is not to say narrow formulation is always fatal to an unenumerated right. In Cruzan v. Director, Missouri Department of Health, a predecessor case to Glucksberg, the court held there is a fundamental right for a patient to refuse life saving medical intervention, because the right to medical consent is long recognized in our legal traditions.1
Yet it’s apparent that the Glucksberg test is susceptible to significant manipulation based on how the right is framed. The Glucksberg court made an explicit policy choice in requiring a narrow framing that will cut against enshrining new unenumerated rights in the majority of cases.
So the Glucksberg approach cannot claim the same kind of neutrality or objectivity as originalism purports to, but it does reflect another kind of conservatism, judicial restraint. Unenumerated rights belong to the People and not the courts. Consequently, in identifying such rights, courts should hew strictly to the long standing practices of States as the best evidence of the People’s view of their most deeply cherished liberties.