Before the term “substantive due process” was ever applied to the unenumerated rights protected under the Constitution, there was already plenty of history regarding such rights. When we see current partisans attack the United States Supreme Court for citing to texts and treatises from the 1700s, we are seeing tantrums thrown by people who fail to understand that their are revealing their ignorance of the American constitutional system with every utterance.
Why write this now? Dobbs, of course
After listening to the oral arguments in Dobbs v. Jackson Women’s Health Organization, I expected that the SCOTUS majority would decide to overrule the unsupportable prior precedents of Roe v. Wade (1973), its accompanying case Doe v. Bolton (1973), and the sequel case Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), all three of which are commonly referred to simply as Roe, and return the abortion issue to the states. As I posted on Facebook back at the start of 2022, I had intended to write a series of these articles on unenumerated Constitutional rights and “substantive due process” on Facebook in May 2022 (beginning a month before the expected opinion in Dobbs in June) to explain why overturning Roe and Casey was the correct LEGAL decision, regardless of the POLITICAL challenges that it poses. Since then, I’ve moved these musings over to Substack, but the project remains the same.
[SPOILER ALERT: returning the issue to the states is not equivalent to making abortion illegal in the U.S., despite the number of articles contending that it is, but recent surveys have shown that about one-third of Americans believe this to be true. I’m not sure whether this belief is due to a lack of education or effective propaganda, and I really don’t care. Speaking as someone who is anti-Roe but pro-choice (at least for the first trimester of the pregnancy), I don’t have a lot of friends on either side of this fight!]
At the very end of this article (under the subheading “And yet . . .”), I began to introduce the upcoming topic. But several hours later on the same day came the leak of the first draft of the final opinion in Dobbs. And that leak has thrown that entire project off whack. Once the first draft leaked, people’s minds closed and everything became polarized. Abortion once again became solely an argument about political power, not about following the Constitution. As a result, I’ve been wondering if this project was even worth doing, as the rhetoric from both sides ramped up in volume and led to both real and pretend outrage from both sides. Why bother if no one wants to listen?
But then came something I discussed in Quick Loop #10: an outpouring of feminist outrage over a footnote in the draft Dobbs opinion that was entirely unconnected to the decision and represented a policy argument that the majority opinion expressly disregarded. And then I saw it again on two different issues on the same day (May 15): first, a claim of religious influence (specifically Catholic) on the draft opinion, written by a leftist Catholic New York Times columnist (who occasionally has written columns that are not nonsense), and second, an NPR attack on the draft opinion for citing to sources from the 1700s, including the non-sequitur line that “because there was a time when women had no rights at all, we should not expect to have any now”.
All of these sources were coming from the left, but the stuff coming from the right has little better, especially arguments that are more moral than legal. At the moment, there is a movement on the right called “abortion abolitionism” that wants to prosecute women who have abortions for murder. Now that position is at odds with the most prominent supporters of the Dobbs draft, but it has significant support on the far right, especially within the Southern Baptist Convention — even though the leaders of that group and most other pro-life groups oppose such laws. The “abolitionists” support laws that do not even permit abortions when necessary to physically save the life of the mother, which probably is an unconstitutional position and also makes it difficult to understand how they can claim their position is in any way “pro-life”.
And that convinced me that I actually did need to write something that would try to explain the reason that I believe Roe, Doe, and Casey need to be overturned, in the same way that prior SCOTUS decisions unmoored in the text of the Constitution or the language of unenumerated rights have been, such as Dred Scott v. Sandford, Plessy v. Ferguson, and some similar turkeys — and others (such as the Insular Cases) should have been. There are a whole raft of arguments and issues that need to be addressed in a post-Roe landscape, but first we need to understand why Roe must go — and why that doesn’t imply anything about how states should respond if it does go.
Similar to the discussion about NATO, which was divided into three parts (formation, Pax Americana, and future), this discussion will be divided into at least four parts: first, unenumerated rights at the time of the drafting of the Constitution and the early years of the Constitution; second, the 14th Amendment and the rise of “substantive due process” through the Lochner era; third, the revival of “substantive due process” for Griswold, Roe, and Casey; and finally, the modern disciplines of originalism and textualism and the direction of future claims regarding unenumerated rights. But, since I haven’t written any of these pieces except for the first one, who knows how long the series could be in the end?
I’m going to try to write this fairly simply and not presume any knowledge, so some of you may find this boring and repetitious. I apologize in advance, but this is the general discussion, not the one tailored to those who have already studied Constitutional Law in law school.
Confederation? Perhaps….
After the United Colonies achieved their freedom from England with the Treaty of Paris in 1783, they were governed by the Articles of Confederation (technically named the “Articles of Confederation and Perpetual Union”), which had been proposed by the Second Continental Congress in 1777 and ratified by 12 colonies by 1779 and all 13 by 1781 (with Maryland as the holdout over Virginia’s land charter claims to the west (running all the way to the Mississippi River), which Virginia had agreed to renounce upon adoption; the area soon became the state of Kentucky).
From the beginning, the new country was straining to survive, because each state put its own interests first, leading to a mishmash of tariffs and regulations within the Confederation (which was given the name “The United States of America” by the Articles). The only real area of cooperation was how to treat the territories acquired from Britain in the Treaty of Paris that stretched to the Mississippi River (where French claims resumed), when the Continental Congress agreed on two different proposals from Thomas Jefferson in 1784 (organizing the land as federal territories) and 1785 (dividing the land using the New England township method and then selling it to fund the government) that eventually became the Northwest Ordinance of 1787.
For example, Vermont had been claimed by New York since colonial times, because its land grant from the British crown gave it the land west of the Connecticut River that hadn’t already been given to Massachusetts and Connecticut. However, New York had never been able to take possession of Vermont — in part because most of the settlers there had been granted their land by New Hampshire, which decided that the land west of the Connecticut River that was not claimed by Massachusetts was its by default. New York did not recognize the New Hampshire Grants and tried to regrant the land. However, prior to the French and Indian Wars, New York could not establish sovereignty due to both the local settlers and the Native American tribes already living there, and then, after the French and Indian Wars ended, Vermont had a rebel government formed by the settlers that styled it as an independent country, despite New York’s objections. However, the Vermont government wanted to participate as a state under the Articles, but New York blocked it, which created real animosity between New York and all three of its New England state neighbors (Connecticut, Massachusetts, and of course New Hampshire). Because New York hadn’t tried to oust the colonists with land grands from New Hampshire, there wasn’t any active fighting taking place, but every passing day made a war seem more inevitable.
Oh, and can you picture the TV show The Office taking place at Dunder Mifflin Paper Company in Scranton, Connecticut? British King Charles II granted the land in the Wyoming Valley, including Scranton and Wilkes-Barre, to Connecticut in 1662, but then he also included the same land in the grants to William Penn that became Pennsylvania in 1681. Once the Native Americans were removed, both colonies granted land titles to settlers. Both cities were actually founded by Connecticut settlers, but Pennsylvania settlers were living outside of them. Ultimately, Pennsylvania and Connecticut fought three wars (known as the Pennamite-Yankee Wars) over the Wyoming Valley area. In 1782, after the first two wars (largely won by Connecticut), the Continental Congress tried to resolve the dispute in favor of Pennsylvania, despite a ruling in favor of Connecticut from King George III in 1771; the main effect of the Continental Congress ruling was the third Pennamite-Yankee War in 1784 — which Pennsylvania “won” when it requested a truce and then broke it just after the Connecticut forces agreed to it, a move which gave Pennsylvania possession but lost all public support for its position (and forced the removal and cashiering of the Pennsylvania military commander). A fourth war loomed.
The states start to cooperate
But then came a 1785 negotiated agreement between Virginia and Maryland over the rights to their shared waterways, including Chesapeake Bay and the Potomac River, known as the Mount Vernon Compact because it had been negotiated at George Washington’s estate — with Washington, who was not a formal participant but was very interested in these water rights, presiding.
As a result of this surprising cooperation, James Madison, who was a formal participant on behalf of Virginia, and the Maryland delegates invited the other states to a conference in Annapolis in 1786, with the goal of addressing the many unanticipated defects in the Articles of Confederation. Delegations from five states (Virginia, Delaware, New York, New Jersey, and Pennsylvania) ultimately attended. The designated representatives from New Hampshire, Massachusetts, Rhode Island, and North Carolina failed to arrive before the convention was over, and Maryland and the other three states (Connecticut, South Carolina, and Georgia) never took any action on the invitation, even though the conference was being held in Maryland.
But the most important thing coming out of Annapolis was that two of the delegates who attended were Madison and Alexander Hamilton from New York, and they found that they agreed that the Articles needed to be junked and replaced. Hamilton was even willing to get New York to budge on the Vermont issue if that could happen. The conference recommendation was more modest: to hold a new convention among all the states in Philadelphia in May 1787, with Washington to serve as president of that convention.
Despite the recommendation, the convention might never have taken place if not for Shays’ Rebellion, but the inability of the United States to stop the rebellion against the government of Massachusetts made all of the states leery. Of course, the outcome of the Philadelphia Convention was a recommendation to scrap the Articles of Confederation and adopt a new document, the Constitution, which was drafted there.
The reason for this background is just to show that there was little unanimity after the Revolutionary War among the states about how to proceed as a nation. The convention was strongly divided between federalists, who wanted a central government with real power, and the anti-federalists, who did not. Many of the state delegations contained representatives from both groups. To further the chances of reaching an agreement, the delegates agreed to keep their discussions and votes secret until the end of the convention.
[NOTE: Immediately after the Constitution was adopted, Hamilton proved to be a man of his word. New York agreed to withdraw its claims to Vermont in return for $30,000, and Vermont became the 14th state in 1791, with the New Hampshire Grants serving as the basis for state organization. And, when the Constitution was adopted, Connecticut agreed to transfer its claim to the Wyoming Valley to Pennsylvania as long as the currently-occupied claims were respected, and in return Connecticut was given a strip of land in the Ohio territory referred to as the “Connecticut Western Reserve” — made up of the entire 10 current Ohio counties of Ashtabula, Trumbull, Lake, Geauga, Portage, Cuyahoga, Medina, Lorain, Erie, and Huron, almost all of Summit County, about half of Mahoning County, and portions of Ashland County and Ottawa County. That made Connecticut and Massachusetts the only two states that had two disconnected sections, although the Western Reserve was further away from the rest of its state than Maine was from Massachusetts. How the Western Reserve later became part of Ohio is another story.]
Does the nation even need a Bill of Rights?
One of the items about which there was even less agreement at that convention was the necessity of specifying the rights retained by the people against this new central government — and also against their state governments. The supporters of this new central government, known as the Federalists, believed that no such declaration was necessary, because infringement on such rights was likely to be a state issue, and some of the states (such as Virginia in 1776, with the Virginia Declaration of Rights, largely written by George Mason) had already adopted bills of rights. The opponents of this new government, known as Anti-Federalists, believed that a centralized government would be certain to violate these rights and insisted that the document add an explicit protection of rights, and George Mason left the convention when it became clear that the draft document would not contain such a provision.
One person who was not a delegate to the convention but was a very interested observer was Madison’s friend and political ally Thomas Jefferson, who was then the United States’ ambassador to France and living in Paris. In October 1787, Madison sent Jefferson a copy of the draft Constitution, along with the news that Mason had left the convention over the bill of rights issue and had pledged to oppose adoption of the draft. Two months later, Jefferson responded, generally approving of the draft but noting the following:
I will now add what I do not like. First the omission of a bill of rights providing clearly & without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal & unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land & not by the law of Nations. To say, as [M]r. Wilson does, that a bill of rights was not necessary because all is reserved in the case of the general government which is not given, while in the particular ones all is given which is not reserved, might do for the Audience to whom it was addressed, but is surely a gratis dictum, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation which had declared that in express terms. []
It was a hard conclusion to say because there has been no uniformity among the states as to the cases triable by jury, because some have been so incautious as to abandon this mode of trial, therefore the more prudent states shall be reduced to the same level of calamity. It would have been much more just & wise to have concluded the other way that as most of the states had judiciously preserved this palladium, those who had wandered should be brought back to it, and to have established general right instead of general wrong. Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, & what no just government should refuse or rest on inference.
In response, Madison agreed to support a Bill of Rights just to permit the Constitution to be adopted, but he argued that it would still be ineffective:
In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. . . . Wherever the real power in a Government lies, there is the danger of oppression.
[In fact, the current desire among some to “have a more plastic view of the Second Amendment” is completely consistent with Madison’s concern. Simply put, you cannot have “second-class” Constitutional rights. On the other hand, just as the United States has maintained a standing army ever since the Civil War (because Jefferson’s desired prohibition against doing so was not included in the Bill of Rights), the continuing usefulness of the Second Amendment desperately needs discussion.
[I understand the paranoia that “gun-grabbers” would seize all private weapons in the U.S. if they could, but that seems unlikely in a country with so many guns — and, as far as I know, the last time when an organized group of citizens took up arms agains the U.S. government was the American Civil War. Is “arming ourselves against government tyranny” really a concern, or has it just become an item of rhetoric, similar to chanting “four legs good, two legs bad”?]
Jefferson was pleased with Madison’s willingness to support the Bill of Rights, and pointed out some other benefits that could be provided, including the following:
In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent, and kept strictly to their own department merits great confidence for their learning and integrity. In fact what degree of confidence would be too much for a body composed of such men as Wythe, Blair, and Pendleton? On characters like these the ‘civium ardor prava jubentium’ [translated to English, this roughly means “the rage of the citizens commanding wrongful measures”] would make no impression. . . .
I cannot refrain from making short answers to the objections which your letter states to have been raised. . . . 2. A positive declaration of some essential rights could not be obtained in the requisite latitude. Answer. Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can. . . . 4. Experience proves the inefficacy of a bill of rights. True. But tho[ugh] it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkeable difference between the characters of the Inconveniencies which attend a Declaration of rights, and those which attend the want of it. The inconveniences of the Declaration are that it may cramp government in [its] useful exertions. But the evil of this is shortlived, moderate, and reparable. The inconveniencies of the want of a Declaration are permanent, afflicting and irreparable: they are in constant progression from bad to worse. The executive in our governments is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for long years. That of the executive will come in [its] turn, but it will be at a remote period.
The second point of Jefferson’s became the model of the Bill of Rights, which contained eight specific rights and then a general point in the Ninth and Tenth Amendment that:
IX. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Half a loaf
So Jefferson’s “half a loaf” came into being when the Bill of Rights was ratified in 1791, less than two years after the Constitution. But what were those unenumerated rights protected by the Ninth Amendment? And how were they protected? The original theory was that they were among the “Privileges and Immunities of Citizens in the several States” protected by Article IV, Section II of the Constitution. For example, here is how U.S. Supreme Court justice Bushrod Washington (George's nephew) described those unenumerated rights in 1823:
The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. []
What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions that are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. []
These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) “the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.”
This seems like the perfect end point for article 1: the existence of such unenumerated Constitutional rights has been established, and the basic contents of those rights have been enumerated. The next step involves the development of such rights in the United States under the Constitution, with the corresponding arguments over what Constitutional provisions apply those rights to the individual states.
While I don’t always agree with you on some things, I am one friend you have not lost regarding your opinion on the the issue which has been “leaked”. Somehow I hate to even type the word abortion but thinking constitutionally rather than emotionally or politically, it should be decided by each state. As for rest of the history lesson here, some of which I knew and some I did not, thanks very much! Looking forward to the next edition!