What are unenumerated rights and what are some of the modern debates over them?

0:05A lot of 14th Amendment litigation today, same sex marriage, abortion, contraception, involve unenumerated rights; there rights that are not specified in the First Eighth Amendment to the Constitution. For example, the First eight Amendment, it talks about the freedom of speech, of press, religion, assembly, petition, the right to bear arms.

0:27Fourth Amendment search and seizure rights. You can be free of unreasonable searches and seizures. Then there's a variety of due process rights, grand jury requirements, indictment requirements, the right to confront witnesses against you, and so on. But what about the right to contract or the right to acquire property or the right to marry, or the right to use contraception in marriage or out of marriage? These are arguably unenumerated rights.

0:58Now, the Modern Supreme Court, through the 14th Amendment, not only has incorporated the Bill of rights against the States, it has not only made the First eight Amendments applicable against the States, but it has held that there are certain unenumerated rights that the 14th Amendment protects, absolutely against state interference. For example, before Roe v. Wade was overturned in the more recent case of Dobbs v. Jackson, Rove Wade held that abortion was such an unenumerated right. The right to choose to terminate a pregnancy was an unenumerated right. It's not specified in the First eight Amendments, but it is nevertheless guaranteed under the 14th Amendment. Where do these unenumerated rights come from, or more precisely, where do protections for these unenumerated rights come from? The argument is the due process clause.

1:51We discussed previously the due process clause and explained how at a minimum it guarantees certain processes that the government must follow before the government can send you to jail. Well, some people argue that the due process clause has a substantive component. They call it substantive due process. This idea is that the clause not only guarantees certain process, but prevents the states from doing certain substantive things, no matter how much process they give you.

2:23In other words, it is a substantive limit on legislative power. These unenumerated rights, if they exist at all, they come from this idea of substantive due process. But the clause not only guarantees certain process, but guarantees certain substantive rights absolutely, like the right to use contraception in marriage, like the right to get an abortion, like the right to send your children to parochial schools or the right to teach your children German, for example. I would say there are two reasons to be skeptical of this unenumerated rights doctrine, the substantive due process doctrine. One is simply a textural matter. When you read the due process clause, it doesn't sound like it has a substantive component. It says the government can in fact, take away life, liberty and property,

3:11as long as there is due process of law, so it doesn't seem to have the substantive component at all. The other critique of substantive due process doctrine is it seems to allow judges the power to make up these rights; the rights that they think are important and then impose their vision for what rights should be on all 50 states nationwide. That is a tremendous power and a power that some people say is a usurpation of power. The Modern Supreme Court, it's worth indicating, it is worth discussing. Dobbs v. Jackson reversed the right to an abortion that was granted in Roe v. Wade, but it didn't actually reject substantive due process. What Dobbs v. Jackson said was, if we're going to do substantive due process, if we're going to come up with unenumerated rights that judges can impose in all 50 states, then we should do it in a way that cabins judicial discretion,

4:11that limits judicial discretion. The way that the modern conservative majority on Supreme Court wants to do it, is through this two part test where they narrowly define the right, and then they look for a long history and tradition of that right. That's what the Court did in Dobbs v. Jackson. It concluded that there was no long history and tradition of guaranteeing the right to an abortion, quite the opposite and therefore, even if substantive due process is a legitimate doctrine, it doesn't guarantee the right to an abortion specifically.