Defining By Denying

Rethinking Rights

On June 24, 2022, women across the United States awoke to find they had been stripped of a right enjoyed for nearly fifty years—the right to choose whether to terminate a pregnancy or carry it to term. For all its bluster and grievance, Justice Alito’s opinion for a 5-3 Supreme Court in Dobbs v. Jackson Women’s Health latched upon one indisputable fact: until relatively recently, one would search the American law reports and legislative records in vain for a deeply rooted recognition, let alone mention, of a woman’s right to choose whether to beget a child. In the Court’s words, the Constitution does not protect the right to abortion because it is not deeply rooted in our history and tradition.

That in itself should come as no surprise. As the dissenting justices noted, a corpus of law authored by white, landed men would tend to overlook the more “feminine” aspects of life. Yet the dissenters’ disagreement with the majority was not so great as might be supposed. Justices Breyer, Sotomayor, and Kagan agreed that history and tradition govern the Constitution’s protection of individual rights; they just looked both to a livelier tradition and from a more generalized vantage. Alito focused narrowly on the traditional reference to or regulation of abortion. The dissenters drew from the broader but long recognized principle of bodily autonomy. It should be emphasized, however, that both majority and dissent looked to evidence of some affirmative tradition to resolve the debate. Such analysis, I contend, remains incomplete.

In fairness to both wings of the Court, American law has long looked to such affirmative traditions of one sort or the other to demarcate the contours of American citizenship and free-personhood, though this should not be taken for granted. After all, while the Ninth Amendment tells us that more constitutionally cognizable rights exist than are mentioned in the Bill of Rights, it doesn’t tell us how to discern them. But aside from Justice Harlan’s assertion that black American’s equal civil accommodations counted “among those [rights] which are fundamental to citizenship in free republican government”—an assertion the Court rejected in 1883’s ironically named Civil Rights Cases—the lack of guidance did not prove too troublesome for the first few decades of the Federal Courts more active role in the late nineteenth and early twentieth centuries delineating the contours of citizenship under the Fourteenth Amendment. Jurists schooled in post-Lockean political theory naturally took the rights of property and contract for granted (the former tangentially mentioned in the Bill of Rights, the latter not at all), even if they disagreed that various maximum rate or minimum wage laws infringed those rights. And common sense governed the rest. As the Court explained in 1923’s Meyer v. Nebraska, recognizing the right to control the upbringing of one’s children, parents have always had that authority.

The Sexual Revolution and 1965’s Griswold v. Connecticut forced the Court to grapple seriously with the question of how to discern the unenumerated bounds of personhood within a rapidly diversifying society of opposed viewpoints. Could Connecticut criminalize marital use of contraception? Certainly some (ahem, Catholics) thought the prohibition not only established but even mandated by natural or divine law. Without going that far, two justices (Black & Stewart) thought Connecticut well within bounds because the Constitution had nothing to say on the matter, no matter how silly the pair thought the law was. By contrast, the remaining seven justices agreed that the Constitution protected married couples’ right to contraception, but fractured into three different theories. Justice Harlan (grandson of the 1800s Justice Harlan) thought the Due Process Clause of the Fourteenth Amendment protected against Connecticut’s “violat[ion of] basic values ‘implicit in the concept of ordered liberty.’” Justice Goldberg thought marital privacy so “basic and fundamental and deep-rooted in our society” as to surely fall within the Ninth Amendment’s reference to yet unenumerated rights. And Justice Douglas constructed a right to privacy upon the pillars of the First Amendment (right of association), Third Amendment (privacy from quartering of soldiers), Fourth Amendment (privacy of person and affects from unreasonable search), and the Fifth Amendment (privacy of mind and person against self-incrimination) which he thought certainly encompassed the (obviously) sacrosanct privacy of marital relations. Thus even the liberals of the Warren Court started with history and tradition.

Discerning new rights from some extant tradition provided boundaries to the endeavor, but it left the Court open to wild swings in application. How lively is that tradition? How closely do we frame the claimed right? In 1989, Michael H. v. Gerald D. asked whether a non-marital but biological father had constitutionally protected parental rights. Justice Scalia’s plurality opinion answered, no, because American law has not traditionally recognized the rights of multiple fathers; Justice Brennan answered, yes, because American law has long cherished parenthood and familial relations.

But if this mere disagreement over particularity presented an analytic hiccup, the Court has since proven wildly incapable of grappling with the realities of an imperfect, and at times abhorrent, legal tradition. For one, before recognizing the right to consensual homosexual activity rooted in the tradition of bodily autonomy in Lawrence v. Texas (2003), the Court had upheld its criminalization in 1986’s Bowers v. Hardwick, reasoning that such activity could not be deeply rooted—on the contrary, it had been long proscribed (which, to be sure, was true)! For another, while the Court has recognized rights to both interracial (1967’s Loving v. Virginia) and same-sex marriage (2015’s Obergefell v. Hodges), one must admit that neither practice can be said to be “deeply rooted in this Nation’s history and tradition”—as the Court demanded be shown of unenumerated rights in 1997’s Washington v. Glucksberg, rejecting a right to physician-assisted suicide—even if such relationships are arguably “implicit in the concept of ordered liberty” (whatever that means). And, of course, this all came to a head with abortion, recognized in 1973’s Roe v. Wade as a natural extension of the broader trend of privacy and autonomy, stripped in 2022’s Dobbs v. Jackson Women’s Health as not, at a more granular level, “deeply rooted” in our history and tradition. Whatever quibbles one might have with the Court’s more recent rigid crackdown on unenumerated rights, one cannot deny that the inherent conservatism of discerning such rights from history and tradition—of, to borrow from Strauss, discerning the ought from the is—lends itself to such approach.

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This is not to condemn wholesale the turn to history and tradition for guidance. Humility and pragmatism advise against needless reinvention. But tradition warrants little more deference than its present utility. If much good is inherited, so too is much ill. Recall, until January 1, 1863, chattel bondage ranked among the most “deeply rooted” of our ways.

Reliance on affirmative tradition to sketch the contours of personhood has admirable roots in Rousseau’s generalization principle, viewing equality as reciprocity. My interests are just to the extent I recognize those identical interests in others. Lincoln considered such mutual recognition a duty concomitant to the right. One appealing to a “right” appeals to an objective, communal standard which governs us all equally. As Jaffa put it, “he who wills freedom for himself must simultaneously will freedom for others.” More simply, Lincoln wrote, “As I would not be a slave, so I would not be a master.”

So viewed, American law’s reciprocal practice of extending to all those fundamental rights already recognized, “deeply rooted” in our history and tradition, is just. But it remains incomplete. Lincoln reminds us that as much as equality demands reciprocity, it begins with our rejection of subordination. As much as we justly sketch the bounds of citizenship and free-personhood by reflecting on our most cherished interests, we define those bounds just as clearly by their denial to others. Equality demands we ask not only how in our history and tradition we have constructed the citizen, but equally how we have constructed the slave.

The Supreme Court recognized this, if implicitly, in the landmark Loving v. Virginia. While Chief Justice Warren’s opinion concluded by holding that a right so deeply rooted in our culture as marriage could not be abridged on account of race, the larger portion of his opinion attacked Virginia’s antimiscegenation statute as a pillar of white supremacy—not just in the twentieth century, but as one of the original pillars supporting chattel bondage. In so many words, the Court recognized marriage, and interracial marriage at that, as a fundamental right precisely because it had been denied for the purpose of subordinating Black Americans.

Defining citizenship and personhood by the denial of obvious civil and political rights, like voting or due process, is a start. But Loving pushes us further. Marriage does not often strike one as a political, let alone constitutional, matter. Racial animus made it so. And so (as we’ll explore) with many other matters. The democratic compact—our mutual submission to each other’s votes—demands our reciprocal recognition of equal human dignity and decisional capacity. Loving illustrates how the denial of seemingly apolitical personal and social dignities, premised on one’s unequal dignity or decisional capacity, defines both the bounds of citizenship and freedom.

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Returning to the start, then. The turn to history and tradition to discern “unenumerated” rights is not necessarily unjust, but it—even from a more liberal vantage—remains incomplete. That the right to abortion is not “deeply rooted” in our history and tradition is both perfectly unexpected and yet answers only half of the question. Lest we shackle ourselves to past, indeed “deeply rooted,” error, we must also ask whether the denial of a right has served to subordinate. Concerning abortion and women’s bodily autonomy, the answer will presumably be yes. But we’ll get to that next time.