Originalism and Unenumerated Rights

Last time, I described the test utilized to identify unenumerated rights under the substantive due process doctrine: the Glucksburg test. In order to be constitutionally protected, an unenumerated right must be “deeply rooted in the Nation’s history and tradition” and “implicit in the concept of ordered liberty.” In practice, this means perusing the content of state laws over the course of American history to determine whether a proposed right has been recognized and cherished by the people as one of our fundamental liberties.

Focusing on state laws is intended to prevent judges from making rights up willy nilly based on their personal views. Per the Ninth Amendment, the people are the font of unenumerated rights, not judges. Looking to the practice of state laws provides a relatively objective standard to ascertain rights recognized by the people, rather than resorting to the ipse dixit of black robed oligarchs.

But what puzzles me about the Glucksburg test is the apparent preference for historical rather than current practice, reflected in the “deeply rooted” requirement. One might plausibly think that state practice at the time the case is before the court is the relevant reference point.

We might, as Professor Amar has done, point out that at the time Roe was decided, nearly every state outlawed abortion, whereas when Griswold was decided, contraception was legal in every state except Connecticut. By referencing practice at the time of decision, we can distinguish Dobbs from Griswold without having to delve into murky speculations about Blackstone’s views on the legal status of unquickened fetuses.

In fact, if the concern is to prevent judges making stuff up, focus on modern practice would seem to provide a more easily accessible, objective and verifiable standard for judges to refer to, rather than trying to plumb the depths of history.

One response would likely be that relying on history ensures that a right is truly durable and not a mere fad or passing phase. I can appreciate the point, and I agree historical practice should be relevant to the analysis, but requiring that the right be deeply rooted seems to foreclose the possibility that society can decisively change its attitudes over a relatively short timeframe, as we saw happen in the case of gay marriage.

I’m disturbed by the idea that if the people recognize an unenumerated right, it will take 100 years for courts to accept that it’s deeply rooted. Or perhaps, if one takes the view that unenumerated rights are deeply rooted only when they were explicitly reflected in the state laws in effect at the time of the ratification of the Constitution, no amount of modern practice will justify finding a new unenumerated right.

And a certain kind of originalist will indeed argue that because the meaning of the constitution is formed at the moment of ratification and static forever after (barring amendment), the scope of unenumerated rights protected by the constitution is similarly limited to those recognized by the people at that moment. What we moderns think our rights are is irrelevant. Unenumerated rights are thus strangled by the grip of a dead hand.

What I haven’t seen, though, is the historical evidence that the ratifiers themselves thought that unenumerated rights would be frozen in amber, rather than dynamic. I have previously argued that originalism itself should sometimes require that certain constitutional provisions be interpreted according to our modern understanding and not those of the ratifying generation.

Textually, I suppose one could argue that saying the people “retain” (as in, hold onto) rights not enumerated, as the Ninth Amendment does, could imply that the people must have already held those rights at the time the amendment was ratified.

Maybe. But I can’t help feeling that such a constrained construction amounts to denying and disparaging rights retained by the people, and I just don’t think undermining the central point of a text is good textualism. It would be a perverse and tortuous pedantry that turns the words of the Ninth Amengment against themselves, transforming an open ended grant of rights into a limitation.