Fundamental Rights and Substantive Due Process
“…nor shall any State deprive any person of life, liberty, or property, without due process of law.”
Most scholars, judges, and politicians agree that there are fundamental rights – those rights deserving the highest degree of protection by the courts – not listed in the Bill of Rights. They do not, however, agree on what those rights are. This, essentially, is the question at the heart of the constitutional debate over the right to privacy, specifically, though not exclusively, as applied to abortion and gay marriage.
The “right to privacy” discussed in this section is something of a misnomer—it does not apply, for example, to privacy in terms of your emails or social media. It might be better described as a right to sexual privacy or a right to reproductive and sexual autonomy. The argument for such a right—in its most general form—is that a liberal democratic government has little business regulating sexual behavior, who one can marry, or deciding how many children one should have. This ideal, however, runs headlong into a long tradition of government regulating such behavior.
As with other areas of constitutional law discussed in these materials, it is difficult to separate one’s views on the constitutionality of abortion or gay rights from one’s preferred legal policy outcome. It should be no surprise, for example, that in recent years liberal justices have supported abortion rights, while conservative justices have not. Nevertheless, it is possible to distinguish between constitutional and political arguments. We focus here on the constitutional, rather than policy or moral dimensions, of contraception, abortion, and gay rights.
The primary themes and constitutional issues in this unit are as follows:
1. What are our fundamental rights? What part of the Constitution establishes these rights? How does the Court decide which—if any—rights outside the Bill of Rights are fundamental?
The answers to these questions are linked to the same sort of analysis seen in the Foundations section, particularly in regard to the incorporation of rights against the states. The most straightforward answer to both questions (which rights are fundamental, which rights should be incorporated against the states) is “only those rights listed in the Bill of the Rights,” i.e. speech, religion, jury trials, and so on.
There are problems with this view, however. The first is the Ninth Amendment, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” While the Ninth Amendment has been mostly ignored by courts in terms of protecting specific rights, it clearly supports the idea that we have rights beyond those enumerated in the Constitution.
A second problem with limiting fundamental rights to the Bill of Rights is that it’s been opposed–with varying strength over time–by both conservative and liberal legal elites since the passage of the Fourteenth Amendment. Though the proposition that the Fourteenth Amendment protects unenumerated fundamental rights was rejected in the Slaughterhouse Cases (where a group of butchers had asserted an unenumerated right to make a living), this view would gain support in later decades, be rejected again by New Deal-era courts, and adopted again in the 1960s, the period where the contemporary right to privacy was established. And beyond more controversial issues, such as economic liberty or abortion, there is strong public support for other non-textual rights, such as the right to marry, the right to travel from state to state, or a right to self-defense.
At present, then, there is a rough judicial consensus that the Constitution protects fundamental rights that are not listed in the Bill of Rights, but less consensus on what those rights are, and even less consensus on the appropriate legal method for identifying them.
2. What is the right to privacy? To what issues does it apply?
The foundational case in this unit is Griswold v. Connecticut, the 1965 decision which first establishes the “right to privacy” by striking down a state law banning the use of birth control. This right, initially framed as removing the government from the “marital bedroom,” soon expanded to protecting birth control in general. It would thereafter extend to protecting a limited right to abortion in Roe v. Wade (1973), a controversial decision that elevated abortion to a top-tier political issue. As we see in the last chapter of this section, the Court overturned Roe in 2022 in Dobbs v. Jackson’s Women’s Health, returning control over abortion to state legislatures. Dobbs is far from the last word on the right to privacy, however, as it both creates new legal conflicts between states with different abortion rules and questions the constitutional foundations of other fundamental rights, such as gay marriage.
3. Are gay rights covered by the right to privacy?
Yes and no. On the one hand, the justifications for protecting gay rights share many similarities with arguments made in right to privacy cases, such as the importance of protecting personal autonomy and choice in regard to decisions involving sex or families. In both areas, the proponents of these rights argue the government has no business dictating such fundamental choices.
On the other hand, some of the Court’s protections for gay rights are better described as labeling government rationales for regulating homosexuals as irrational, rather than elevating sexual orientation to a protected class or particular sexual behavior to a fundamental right.
As noted above, some portions of Dobbs call into question whether gay rights decisions remain good law, though it’s too early to know how such future decisions would be decided. We’ll discuss this possibility in the chapters that follow.
