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The fragility of unenumerated rights

WASHINGTON, DC - MAY 17:  Clouds are seen above The U.S. Supreme Court building on May 17, 2021 in Washington, DC. The Supreme Court said that it will hear a Mississippi abortion case that challenges Roe v. Wade. They will hear the case in October, with a decision likely to come in June of 2022. (Drew Angerer/Getty Images)
WASHINGTON, DC - MAY 17: Clouds are seen above The U.S. Supreme Court building on May 17, 2021 in Washington, DC. The Supreme Court said that it will hear a Mississippi abortion case that challenges Roe v. Wade. They will hear the case in October, with a decision likely to come in June of 2022. (Drew Angerer/Getty Images)

Unenumerated rights.

Those are the rights that may not be explicitly laid out in the words of the Constitution, but are considered essential to American life anyway.

In 1997 then-Chief Justice William Rehnquist said:

“We have repeatedly emphasized that fundamental rights are those that are deeply rooted in our nation’s traditions.”

History and tradition. That’s what Justice Samuel Alito’s points to in his draft opinion that could overturn abortion rights in this country.

What else might the justices think is not deeply rooted in the “history or tradition” of the United States?

“Obviously, that has implications for other cases,” Kenji Yoshino says. “Same sex marriage is not deeply rooted in this nation’s history and tradition. Contraception. The rights of interracial marriage.”

“If we’re really taking a baseline that says the right to be recognized as an unenumerated right has to be deeply rooted in this nation’s history and tradition, all of those rights are now imperiled,” Yoshino adds.

Today, On Point: Understanding unenumerated rights.

Guests

Kenji Yoshino, professor of constitutional law at NYU School of Law. Director of the Center for Diversity, Inclusion and Belonging. (@kenji_yoshino)

Jack Beatty, On Point news analyst. (@JackBeattyNPR)

Also Featured

Kathryn Tucker, special counsel at Emerge Law Group. She argued the cause of the respondents in the 1997 Washington v. Glucksberg case.

Related Reading

Los Angeles Times: “Op-Ed: A retro reading of the Constitution imperils many rights beyond abortion” — “As astute commentators have noted, the draft opinion in Dobbs vs. Jackson Women’s Health Organization not only seeks to overrule Roe vs. Wade, but might also someday threaten other decisions like Obergefell vs. Hodges, which secured the right to same-sex marriage.”

This article was originally published on WBUR.org.

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