The fragility of unenumerated rights

Unenumerated rights.

Those are the rights that may not be explicitly laid out in the words of the Constitution, but are considered essential to American life anyway.

In 1997 then-Chief Justice William Rehnquist said:

“We have repeatedly emphasized that fundamental rights are those that are deeply rooted in our nation’s traditions.”

History and tradition. That’s what Justice Samuel Alito’s points to in his draft opinion that could overturn abortion rights in this country.

What else might the justices think is not deeply rooted in the "history or tradition" of the United States?

“Obviously, that has implications for other cases," Kenji Yoshino says. "Same sex marriage is not deeply rooted in this nation's history and tradition. Contraception. The rights of interracial marriage."

"If we're really taking a baseline that says the right to be recognized as an unenumerated right has to be deeply rooted in this nation's history and tradition, all of those rights are now imperiled," Yoshino adds.

Today, On Point: Understanding unenumerated rights.

Kenji Yoshino, professor of constitutional law at NYU School of Law. Director of the Center for Diversity, Inclusion and Belonging. (@kenji_yoshino)

Jack Beatty, On Point news analyst. (@JackBeattyNPR)

Kathryn Tucker, special counsel at Emerge Law Group. She argued the cause of the respondents in the 1997 Washington v. Glucksberg case.

Los Angeles Times: "Op-Ed: A retro reading of the Constitution imperils many rights beyond abortion" — "As astute commentators have noted, the draft opinion in Dobbs vs. Jackson Women’s Health Organization not only seeks to overrule Roe vs. Wade, but might also someday threaten other decisions like Obergefell vs. Hodges, which secured the right to same-sex marriage."

On unenumerated rights

Kenji Yoshino: It's the air we breathe. And if I can even go further than that, it's really the foundation on which the Constitution has been built because ... at the very founding of the Constitution ... the condition that certain individuals who ratified the Constitution called the anti-federalists, who are worried about overweening federal governmental power, reserved was to say, "We will only vote for this if you enact a Bill of Rights."

One of those Bill of Rights is the Ninth Amendment, and the Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." And so, what I love about that is that there's a textual reference in the Constitution to the idea that there are textually unenumerated right. So there's a little bit of a paradox.

On the process by which unenumerated rights are retained by the Court

Yoshino: There are two tests for how to decide what is an unenumerated right. ... The test that conservatives have loved and that Justice [Samuel] Alito is trying to resurrect is a 1997 test that comes from the case, Washington v. Glucksberg. And in Glucksberg, the Court said, when you're trying to ascertain whether something is an unenumerated right, history is going to be your guide. And so the formal test is to question whether or not the right that people are proposing is, "deeply rooted in this nation's history and traditions and implicit and the concept of order liberty." So if you think about that, that is going to be a very backwards looking test.

And the alternative test, which was proposed by Justice [John Marshall] Harlan initially in his dissent in a case called Poe v. Ullman, which actually predated Washington v. Glucksberg, but was a dissent, but was later embraced by the Casey majority in 1992 is this test that says there can't really be any formula. We, of course, look to history as our guide, but we look not only at the traditions that we have as a country, but also the traditions from which we broke. And Harlan says that tradition is a living thing.

On the connection between "history and tradition" and the politics of the moment

Yoshino: I agree that thinking of Dobbs as adopting a very cramped reading of Glucksberg is a really good characterization. ... This is actually Justice Alito's version of history and obviously the people who signed on to that opinion and his version of history is very narrow indeed. So what he's saying is the test here is whether or not the unenumerated right is deeply rooted in this nation's history and traditions. And then he says, abortion is clearly not that. And so QED, abortion is not a fundamental right.

But as Jack was saying earlier, the right to abortion has been around since 1973. As you said earlier, abortions themselves have been conducted since time immemorial. And so he's selecting a very particular version of when history begins and what constitutes that history in order to come to the result that he comes to.

On the 1965 Griswold v. Connecticut case's precedent on discerning unenumerated rights

Yoshino: [The Griswold case] says the penumbras around the First, Third, Fourth and Fifth Amendment create a right to privacy. So what they're getting at — a penumbra is just a shadow, right? — is that these textual provisions cast these shadows. And those shadows, which all contain this notion of privacy overlap with each other such that they coalesce into a right in its own right, so that the right to privacy under which the right to contraception is protected is derived from the shadows of actual textual provisions. So text is being used as a counterweight to the lack of history right on point here.

On potential concerns about the future of unenumerated rights

Yoshino: I'm extremely concerned about them. I think time will tell, and only time will tell. But we have a test being articulated by the draft of the opinion that, if applied rigorously, would mean the demise of many of the unenumerated rights that we have come to take for granted. So I'm extremely concerned. I'm about to head into teach my new constitutional law class, and I feel like I'm teaching that generation that's going to have to fix this because I'm not relying on my generation to be able to do it.