Help me find this article about unenumerated Constitutional rights

June 28, 2022 9:31 AM

I read a lot of responses to the horrifying Supreme Court Dobbs decision this weekend. One of them was an article explicitly addressing the conservative argument of "show me where abortion is mentioned in the Constitution" and included a list of other, basic rights that are not explicitly named in the Constitution to show how dangerous and ridiculous that argument is. I think it was maybe on Slate or The Atlantic but I haven't been able to find it there or on Google. Help?
posted by overglow to Law & Government (2 answers total)

Maybe Alito's Leaked Abortion Opinion Misunderstands Unenumerated Rights by Damon Root. Though it's probably longer.

I personally prefer this explanation from Morgan Marietta as published in the Conversation / Ohio Journal.

TL;DR -- instead of reading the Constitution as a "living Constitution", i.e. interpreting it as it would apply to our present lives, this SCOTUS chose to interpret the Constitution as "the way founder meant".

Basically, current SCOTUS's opinion was "the court's role is not to interpret the Constitution to have new rights as they had previously done. The way to add new rights was always reserved for the people via the amendment process or for congress to enact new laws."

So there are no unenumerated rights, i.e. those spelled out on the Constitution and Bill of Rights? Not quite, as this SCOTUS settled on what's called the Glucksberg standard, ie. "Deeply Rooted in Nation's History and tradition". Basically, anything before 14th amendment is fine. Anything after that, "meh".

And the right to abortion is not one of those they consider a "tradition", and thus, should be left to the states.

But it was clear that this SCOTUS views the Constitution (as they interpret it) as more important than any precedents. Which leaves MANY unenumerated rights in doubt. In other words, where precedents used to count for a lot, it now counts less if it cannot be supported by a reading of the Constitution.

But there's another point: what happens when there's disagreement on "reality"? Such as "what is marriage?" "What is a person?" "What is mental illness?" And the standard was set in Kahler vs Kansas (2020) where the individual states can set the standards for themselves.
posted by kschang at 10:58 AM on June 28, 2022 [2 favorites]

Do a search for articles on SSRN by Kurt Lash, who has written a lot on this subject.
posted by yclipse at 8:52 AM on June 30, 2022 [1 favorite]