Thread by @GoldbergPrime

My last tweets on Dobbs. I want to do a thread on "deeply rooted in our nation's history and tradition." It is alarming people. I will explore why Alito used that framework and the pros and cons of using it so you can consider what you think is a good approach. (1)

In a case about whether there is a constitutional right to assisted suicide, called Glucksburg (1997), the Court noted that to find a right that is not explicit in the text of the Constitution (using substantive due process), the right needs to be "deeply rooted..." (2)

This is because when the Court finds a right, it cuts off the democratic process of legislating about something. Normally we want to leave things to the democracy, unless there is a constitutional right. This gets tricky when the right isn't stated. (3)

We all agree to some extent that free speech is a right, because it's written. (What it means is up for debate). But when a right isn't stated, then we don't want judges easily cutting off the legislative process unless it is fundamental. Now what makes a right fundamental? (4)

Glucksburg's articulation of "deeply rooted," which comes from a longer line of cases (@dilanesper has a great thread on this) is one way of ensuring judges don't impose a right into the constitution because of their political preferences. A fundamental right is longstanding. (5)

Obergefell, which held that substantive due process (plus some EP) protects a constitutional right to same-sex marriage, rejected Glucksburg to some degree. The Obergefell Court believed that there are other way to determine if something is a right besides deeply rooted. (6)

But how does one determine if a fundamental right exists if it doesn't have to be tied to our nation's history and traditions? What makes it fundamental? This is a sincere question. There are theories of understanding rights differently as our nation progresses. (7)

So, the debate about "deeply rooted" can reduce to one about whether we constrain judges from overriding the democracy by using history and tradition (if you think that can be constraining) or if we allow judges to re-imagine the Constitution as society develops. (8)

Whatever your views, judges do need to articulate a viable, constraining theory of how we determine if rights that are not enumerated are fundamental that goes beyond their own political views. Glucksburg and its progeny are the usual way of doing this, but not always. (9)

There's originalism v. some form of common law constitutionalism that also comes into play here. So, for example, do you think doctor-assisted suicide should be a constitutional right? What about sending your kids to private school? What makes a right fundamental? (10)

I like Glucksburg, but also recognize it is limiting. Personally, I am torn. I wonder if there is a way to acknowledge cases like Obergefell and also generally defer to Glucksburg. Am I just having my constitutional cake and eating it too? (end)