Abstract
The recognition of unenumerated rights, rights implied from the text of the constitution, is a political battlefield waged through law with profound implications for all Americans. Generally, there have been two prongs for an inquiry into an unenumerated constitutional right under the Fourteenth Amendment. One is to ask whether the right to be found is objectively deeply rooted in this Nation’s history and tradition. The other is to ask whether the right to be found is fundamental to this Nation’s scheme of ordered liberty. The current Supreme Court has effectively done away with this present-day liberty analysis, saying it is too vague and invites too much judicial discretion. Under the Court’s current direction, the past alone, without thought given to present-day conditions, provides the scope of the inquiry into the existence of an unenumerated right under the Fourteenth Amendment’s Due Process Clause. This Note argues that the liberty prong, alongside the history and tradition prong, is essential to any substantive due process inquiry. To address the current Court’s concerns, this Note prescribes a two-part tweak to the traditional Lawrence-styled liberty analysis to reinvigorate the commonsense notion that present-day conditions should factor into an inquiry questioning the existence of a present-day right.
Recommended Citation
Azor Cole, Due Process Shaped by the Present Instead of the Past: The Needed Reinvigoration of a Lawrence Vision of Due Process, 47 SEATTLE U. L. REV. 1695 (2024).
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