Republican Sen. John Cornyn from Texas was one of many Republicans who took aim at the notion that “unenumerated rights”—the right to marry, use contraception, or terminate a pregnancy—are truly fundamental during Ketanji Brown Jackson’s confirmation hearings last month.
The slightly weedy line of questioning arose numerous times during the hearings when Cornyn and other senators questioned whether these rights are essential or simply, as Cornyn argued, “another form of judicial policymaking” that can be used “to justify basically any result.” The senators also questioned what precisely the substantive due process protections at the heart of both Roe v. Wade and Obergefell v. Hodges really meant. Cornyn insisted that when the court protects those fundamental rights, “it creates a circumstance where those who may hold traditional beliefs, like something as important as marriage, will be vilified as unwilling to accede to this new orthodoxy.”
Mark Joseph Stern wrote at the time that this assault on unenumerated rights means that the conservative legal movement has marriage equality in the crosshairs. On this week’s Amicus, Dahlia Lithwick spoke to David Gans, director of the human rights, civil rights, and citizenship program at the of the Constitutional Accountability Center, about his new law review article, which explains that the 14th Amendment expressly contemplated protecting reproductive freedom. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: It seemed that Senate Democrats did almost nothing to push back on this narrative and allowed these talking points, that surfaced by the way, at the Supreme Court oral arguments in Dobbs — that’s the 15-week abortion case still pending—and that as a result, these ideas about policy-driven rights become ever more firmly entrenched in the political discourse. But you, David, seem disinclined to just cede all that ground on unenumerated rights and substantive due process, as invented rights made up by hippies who’d been just sniffing too much living constitutionalism in the ’60s. Am I correct that it’s a mistake to say that going after unenumerated rights, and substantive due process, is just wordplay; that there’s a game here and the game is to roll back rights and those rights do not begin or end with abortion?
David Gans: I do think that’s right. Conservatives, both on the court, and in the conservative legal movement, and in the Senate, want to roll back a century of constitutional jurisprudence that recognizes that the 14th Amendment broadly protects fundamental rights that are inherent in autonomy, dignity, and equal citizenship. And those are not limited to rights that are set forth in the four corners of the Constitution’s text; that comes directly out of the constitutional text and history. That’s reflected in Supreme Court decisions going back over a century, protecting rights to be a parent, rights to marry a loved one, rights to raise one’s children according to one’s values, rights to access contraceptives, and to choose whether or not to have children—including the right to have an abortion.
From the point of view of conservatives, and we saw this repeatedly during Judge Jackson’s hearings, these are all made up rights. And this idea that if it’s not written in the text, it can’t be a fundamental right is deeply problematic in many ways as a matter of the entire history of our Constitution. It goes back to debates at the founding over, should there be a Bill of Rights? And one of the concerns was, look, if you try to list all the rights that are protected, you’re not going to get them all.
There were two big influences at the time of the drafting of the 14th Amendment and the first and most important is the Declaration of Independence. The Framers who wrote the 14th Amendment viewed the Declaration of Independence as the touchstone, the key to the American ideals of freedom of equality. And it was essentially buried because of slavery.
And so the idea behind the 14th Amendment was to restore the Declaration and to call the 14th Amendment the “gem of the Constitution” because it’s going to write the Declaration into the Constitution. The amendment addresses the privileges or immunities of citizenship. It talks about guaranteeing liberty, and due process of law, it guarantees equal protection of the laws. It doesn’t try to enumerate all the rights that it sought to protect, out of this recognition that no possible set of rights would be exhaustive.
And there’s a second point that gets to why the text and history protect unenumerated rights. The 14th Amendment emerges out of the crucible of slavery and it defines the promise of freedom. It’s trying to guarantee those fundamental rights that had been long denied to those held in bondage. During the debates over the amendment the Framers are looking back and asking: What did that mean, to be denied freedom, to be held in slavery?
Many of those key rights were not rights that were in the Constitution. Many of them were key to the Bill of Rights, but many of them weren’t. And what were some of those rights? The right to marry. Because slaves had no rights to marry at all. Frederick Douglass said, “This is a nation that boasts of liberty, but 3 million people have no right to marry.” The right to start a family, to choose who’s in your family; that was all impossible under slavery. Children were treated as a commodity. They could be bought and sold. They could be separated. Parents had no right to care for their children. So, these fundamental rights are very deeply rooted in the history of the 14th Amendment.
After the slave trade closed, a key to the expansion of slavery was the idea that the slave system would replicate itself through forced procreation. The act of raping, forcing, and coercing enslaved women to procreate with other slaves was not a peripheral part of slavery. This was viewed as the core and these ideas were central to the abolitionist critique of slavery that helped change the Constitution and led first to the 13th Amendment, and then to the 14th.
One of the things you see on the court today is conservatives taking this view that we can’t figure out what is a fundamental right unless it’s listed. If it’s in the text, it counts; otherwise it’s not going to be protected or we’ll devise a set of tests so onerous that no right will qualify as fundamental unless it’s listed in the text.
Can you just walk us through the difference between substantive and procedural due process?
Sure, but I want to back up, because part of the story goes back to the fact that a very key piece of the 14th Amendment, which was the privileges or immunities clause that says no state shall enforce a law that denies the privileges and immunities of citizens. This clause was essentially stripped out of the Constitution very early on in 1873 in a case called the Slaughter-House Cases. And since then, many have pushed, both on the left and the right, for the court to restore the protections in line with its text and history. But the court has never done that.
Instead, the due process clause has done the work of protecting fundamental rights. And the response—often from conservatives like Cornyn is to say, well, due process seems to be more about ensuring fair procedures, and it doesn’t make sense to use it to protect fundamental rights from denial by the states.
Essentially what the court has done is to enforce the original meaning of the 14th Amendment that guarantees the fundamental rights that are at its core by using the due process clause. Because as late as 2010, in a case called McDonald v. Chicago, there was a push to use the privileges and immunities clause, which the text and history says is the one that protects fundamental rights.
The response was: There’s too much water under the bridge. We’ve used the due process clause for over a century, and as a matter of precedent, we’re going to continue with that approach.
Can you talk about what it meant when Republicans like Cornyn tried to lash the idea of substantive due process and unenumerated rights to the evils of Plessy v. Ferguson and Dred Scott to Lochner?
A familiar critique from the opponents of substantive due process is that the whole thing is corrupt, root and branch. It started with Dred Scott, because the more famous holding of Dred Scott was that Black persons could never be citizens under the Constitution and therefore Dred Scott had no right to suit.
But the court then went on and said that slave owners had a right, protected by the due process clause, to take their slaves from slave territory into free territory and they invalidated the Missouri Compromise that had prevented that. Then in the Lochner era, the Supreme Court used the due process clause to second-guess the wisdom of social and economic legislation, in a way that had no constitutional foundation. And then in the New Deal, Lochner was overturned.
One of the big problems with Lochner was it sort of ignored that there was a crucial balance between the claimed individual right and the need to regulate social and economic conditions to protect workers, and safeguard their health, which the court, in case after case, ignored. But the court also started putting its due process precedents on a somewhat firmer footing.
The Lochner era also gave us some of the first rights of heart and home, about the right to love, the right to form a home, the right to have children, to decide to raise those children. And then, these rights are further developed under the Warren court, protecting access to contraceptives in the Griswold case, and protecting the right to marry a loved one of another race in the Loving case. These became the basis for Roe in 1973.
So there’s a part of the Lochner era that everyone views as illegitimate, but there’s also a part of the Lochner era that is the beginning of this recognition that these rights of heart and home are fundamental, and guaranteed.
And some of those cases are: Meyer v. Nebraska about the right of parents of German descent to have their child learn German in schools. And Pierce in 1925, about the right of parents to send their child to a private school, rather than a public school. But again, if you take the view of, “where is it written in the text,” then there’s nowhere in the text that talks about the right of parents to raise their child and ensure their child can go to private school or learn German.
But these are fundamental rights. And one of the reasons you can see them as fundamental is that the family is kind of a foundational unit to our society, and the 14th Amendment is a moment where we recognize these are fundamental rights because that’s the difference between being enslaved and being free. You could control your family.
So if you are a Republican right now, and you are pushing against school mask mandates, or you are pushing to control what books your child checks out of the library, or whether they learn critical race theory, a lot of those ideas about what your child learns at school, how much control you have over her freedom and education, are all in that bucket of rights you just listed.
There’s a deep irony here that people like Sens. John Cornyn and John Kennedy are fighting to the teeth against your interpretation of what the 14th Amendment sets out to protect—all of these heart and home and control of children and family autonomy rights rest exactly within that bucket of rights I would think the conservative legal movement would be embracing right now.