Let's Talk About "Unenumerated Rights"

At the 1788 North Carolina convention to ratify the Constitution, future #SCOTUS Justice James Iredell warned that a written bill of rights would lead people in the future to argue — wrongly — that those rights not specifically mentioned in the Constitution wouldn’t be protected. pic.twitter.com/AJnZtj14mS

— Steve Vladeck (@steve_vladeck) May 4, 2022

The draft Dobbs opinion isn't really about substantive due process, except as it picks up some language related to that doctrine and tosses it airily about. What it really rests on is the idea of "unenumerated rights" because, as Alito points out, "abortion" is not mentioned in the Constitution.  It is, in other words, talking about substantive due process; but only to pay lip service to it.  Mostly Alito's opinion is about "originalism."  Which I contend is a wholly insupportable legal theory which has no place in serious legal analysis.

Justice Alito Somberly Ties Noose After Realizing He Not Mentioned In Constitution https://t.co/9UfF6l1NKn pic.twitter.com/KCahckZQ65

— The Onion (@TheOnion) May 3, 2022

One would like to think that was true, but the argument it mocks is the point of the satire. What isn't mentioned is not thereby excluded, and Alito's appeal to the myth of the "intent of the Founders," or of the drafters of the 14th Amendment, is the real problem.

For those who insist that, notwithstanding the draft opinion in Dobbs, #SCOTUS would *never* revisit same-sex marriage, here's what Justices Thomas and Alito had to say in October 2020 about the Court's 5-4 ruling in Obergefell:https://t.co/FEUtw4Z00R pic.twitter.com/8h4VIb4Y76

— Steve Vladeck (@steve_vladeck) May 5, 2022

Obergefell, says the author of the Dobbs draft, rests on an "unenumerated right."  I'm sure substantive due process will save that right; right?

And, once more with feeling, it has bugger all to do with substantive due process.

Good morning to everyone except the white dudes spending an *exceptional* amount of time on the “Dobbs won’t apply to any other rights but Roe!” takes.

— KSV (@KSVesq) May 5, 2022

I would just like to recaption this to: 5 justices handling stare decisis:

Me, trying to stop my husband from engaging with trolls pic.twitter.com/0t9JwcrJzD

— KSV (@KSVesq) May 5, 2022