--:-- Sean Rameswaram: We're still coming to terms with that Supreme Court leak from last week in the United States. The country is still trying to wrap its head around what the end of Roe v. Wade might mean.
--:-- Sean Rameswaram: And that's why we asked you to call in and leave a message with your questions about Justice Alito's leaked opinion.
--:-- Sean Rameswaram: Hello, my name is Levi. I am from the state of Utah.
--:-- Levi: A good many messages were left. I listened to all of them. On Today Explained, I'd like to have unnumerated rights. Explored more. Unenumerated rights, the ones we have that aren't explicitly spelled out in the Constitution.
--:-- Sean Rameswaram: Because in Justice Alito's opinion, he talked about tradition and heritage of the Constitution. Unenumerated rights like the right to an abortion.
--:-- Levi: So I think exploring the tradition and heritage side of the Constitution versus unenumerated rights could be interesting.
--:-- Sean Rameswaram: Alrighty, thank you. Thank you, Levi.
--:-- Sean Rameswaram: Support for Today Explained comes from Adio. Adio is an AI-native customer relationship management platform that Adio says is built for the next era of companies.
--:-- Sean Rameswaram: A powerful data structure adapts to your business model, sinks in all your contacts in minutes, and enriches your business with actionable data.
--:-- Sean Rameswaram: Adio says it also allows you to create those email sequences, those real-time reports, those powerful automations, which they claim can help you build what matters most, your company.
--:-- Sean Rameswaram: You can go to adio.com slash todayexplained to get 15% off your first year.
--:-- Sean Rameswaram: That's A-T-T-I-O dot com slash todayexplained.
--:-- Sean Rameswaram: All right, everyone, welcome to Con Law 101 at Today Explained.
--:-- Sean Rameswaram: I'm your T.A. Sean Ramos for him.
--:-- Sean Rameswaram: A reminder that office hours are canceled this week in light of the new Kendrick Lamar album, maybe next week.
--:-- Sean Rameswaram: Professor Kenji Yoshino is getting settled.
--:-- Sean Rameswaram: As you know, he's the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law.
--:-- Sean Rameswaram: And today's lecture is all about those rights you don't see explicitly listed out in the Constitution, the unenumerated rights.
--:-- Sean Rameswaram: What the hay are they, professor?
--:-- Sean Rameswaram: This is a head scratcher for many people who come into law school, which is the idea that there are some rights in the Constitution that are nowhere in the text of the Constitution.
--:-- Sean Rameswaram: So the reason that's puzzling, right, is that we think that the whole kind of project of writing down a Constitution is to make sure that things are written down.
--:-- Sean Rameswaram: So why on earth would there be a lot of rights that are just floating without any textual referent that nonetheless have the stature of a constitutional right.
--:-- Professor Kenji Yoshino: It may shock people that the right to vote, the right to marry, and the right to travel across state lines are all unenumerated rights.
--:-- Professor Kenji Yoshino: None of those rights are textually enumerated in the Constitution.
--:-- Sean Rameswaram: So you hear a lot of arguments these days, like, you know, there's no right to an abortion in the Constitution.
--:-- Professor Kenji Yoshino: Professor, you're telling us there's technically no right to go from New York to New Jersey in the Constitution either.
--:-- Sean Rameswaram: Exactly. But nonetheless, the Supreme Court has repeatedly said that right does exist, the right to travel.
--:-- Professor Kenji Yoshino: Say, New York said you're not allowed to travel, period, to Connecticut.
--:-- Sean Rameswaram: That would create an uproar that would go to the courts and it would be struck down in a hot second.
--:-- Professor Kenji Yoshino: So the kind of thing about unenumerated rights is that they exist.
--:-- Professor Kenji Yoshino: There's this grand bargain of the original Constitution in 1789.
--:-- Professor Kenji Yoshino: But the notion is a lot of people said, we're not going to ratify this unless there's a Bill of Rights.
--:-- Sean Rameswaram: So the Bill of Rights gets ratified a couple of years later, but even the Bill of Rights feels really incomplete to a lot of people.
--:-- Professor Kenji Yoshino: And so they shove in this Ninth Amendment that says simply because we've written down certain rights doesn't mean that this is an exhaustive list.
--:-- Professor Kenji Yoshino: And the Ninth Amendment takes any doubt away from what people believe, because the framers really clearly stated that the enumeration in the Constitution of particular rights was not meant to be exhaustive.
--:-- Professor Kenji Yoshino: It was simply meant to be exemplary.
--:-- Sean Rameswaram: I love this paradox, and I always talk to my con law students about this, which is that there is a textual reference to unenumerated rights.
--:-- Sean Rameswaram: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
--:-- Professor Kenji Yoshino: In other words, there's an enumerated provision in the Constitution that talks about unenumerated rights and guarantees them, right?
--:-- Sean Rameswaram: They preserve the right of the thing they didn't preserve the right for.
--:-- Professor Kenji Yoshino: Exactly. And that was really deliberate and smart.
--:-- Sean Rameswaram: All right, let's skip ahead to 1973 and talk about unenumerated rights as they relate to the decision in Roe v. Wade.
--:-- Sean Rameswaram: If you don't mind me rolling back to 1965, our story really begins there, because that's when the court began to think about the so-called right to privacy.
--:-- Professor Kenji Yoshino: So in 1965, we have a case called Griswold v. Connecticut.
--:-- Professor Kenji Yoshino: This case involves the validity of the Connecticut anti-contraceptive statutes.
--:-- Professor Kenji Yoshino: And what the court said was there isn't a right to privacy anywhere in the Constitution.
--:-- Professor Kenji Yoshino: So right to privacy is an unenumerated right.
--:-- Sean Rameswaram: And also there is no particular right to use contraception either.
--:-- Professor Kenji Yoshino: However, if we look at the enumerated rights in the Constitution, so the First Amendment about the right to assembly, the Third Amendment about the right not to have the government quarter troops in your home during peacetime, implicit in all of those rights is some notion of privacy.
--:-- Professor Kenji Yoshino: Whether that's a space-place conception of privacy, like you can't invade my home, or even a decisional conception of privacy, like you can't invade my mind and force me to incriminate myself against my will.
--:-- Professor Kenji Yoshino: This is the so penumbra analysis where the court says where the right to privacy is enumerated but it implicit in so many of the other enumerated rights like the ones that I just mentioned that we going to preserve it as having a constitutional value.
--:-- Sean Rameswaram: And the right to privacy includes the right to use contraception.
--:-- Professor Kenji Yoshino: Certainly the Ninth Amendment meant to reserve some rights to the people and if there's any right that you would think would be reserved to the people and which the government should not interfere with, it would be this right, yeah.
--:-- Sean Rameswaram: So when we get to 1973, Roe v. Wade is not a bolt from the blue, right?
--:-- Professor Kenji Yoshino: Because the right to contraception has already been protected under the right to privacy.
--:-- Professor Kenji Yoshino: Under the rights of persons to life, liberty, and the pursuit of happiness, I think in as far as liberty is meaningful, that liberty to these women would mean liberty from being forced to continue the unwanted pregnancy.
--:-- Sean Rameswaram: I don't mean to put you on the spot, Professor, but what does the 14th Amendment explicitly say?
--:-- Professor Kenji Yoshino: How good's your memory on this kind of stuff?
--:-- Professor Kenji Yoshino: It's pretty good, I hope.
--:-- Professor Kenji Yoshino: So the 14th Amendment, which was one of the Reconstruction Amendments passed after the Civil War, says, No state shall deny to any person within its jurisdiction the equal protection of the laws, nor deprive them of life, liberty, or property without due process of law.
--:-- Sean Rameswaram: So there are other provisions, but in pertinent part, that liberty piece of it is the portion that says you can't deny anyone of life, liberty, or property without due process of law.
--:-- Professor Kenji Yoshino: So how do we get from this very abstract liberty to sort of cash it out to more kind of retail level specific rights like the right to contraception or the right to abortion?
--:-- Sean Rameswaram: So that's why I think most of us prefer to think of these as unenumerated rights.
--:-- Sean Rameswaram: They're at least unenumerated at that level of specificity.
--:-- Professor Kenji Yoshino: And some would say they're not enumerated in the Constitution at all.
--:-- Sean Rameswaram: Unenumerated in the sense that the word abortion doesn't appear in the Constitution.
--:-- Professor Kenji Yoshino: Exactly. So you could say, oh, well, the word liberty is in the Constitution, the word abortion is subsumed within that, but that's too much of a leap for me, at least.
--:-- Sean Rameswaram: I would prefer to call them unenumerated rights.
--:-- Sean Rameswaram: Now, everyone knows what follows is decades of backlash, but let's home in on Alito's draft opinion striking down Roe v. Wade.
--:-- Sean Rameswaram: What's his beef with abortion as an unenumerated right?
--:-- Professor Kenji Yoshino: So Alito is not saying there's no such thing as unenumerated rights in the Constitution.
--:-- Professor Kenji Yoshino: If it's not written down, you don't have it, which is sometimes what you hear people who are less well versed in constitutional law say.
--:-- Sean Rameswaram: He's not saying that.
--:-- Professor Kenji Yoshino: What he's saying is that this particular right, the right to have an abortion, is not one of the unenumerated rights that deserves protection.
--:-- Sean Rameswaram: So that drives us, Sean, to the million dollar question, which is how on earth do we distinguish between the unenumerated rights that are in and the unenumerated rights that are out.
--:-- Professor Kenji Yoshino: And this is what this entire debate that has been opened up by this leaked draft opinion is about.
--:-- Sean Rameswaram: Because Alito's methodology goes back to a 1997 case called Washington versus Glucksburg.
--:-- Professor Kenji Yoshino: And in Washington versus Glucksburg, the Supreme Court says that the way in which we find unenumerated rights and recognize them is to make sure that they are, and here I'm quoting, quote, deeply rooted in this nation's history and traditions and implicit in the concept of ordered liberty.
--:-- Sean Rameswaram: We have also insisted that the fundamental right at issue in a particular due process case be framed rather precisely.
--:-- Professor Kenji Yoshino: So the notion is we will guarantee an unenumerated right if and only if we can find a long historical provenance for that right.
--:-- Sean Rameswaram: And I guess by long historical provenance. We're talking more than, what, the 50 years since Roe v. Wade?
--:-- Professor Kenji Yoshino: Exactly. It's not specified, but it sounds like, you know, centuries and centuries, right?
--:-- Sean Rameswaram: Because, you know, Alito's going all the way back to the common law in England, right? Much less the founding of this country.
--:-- Professor Kenji Yoshino: Why is Justice Alito going back to common law England in whatever it might be, the 16th, 17th century?
--:-- Professor Kenji Yoshino: I think that just suggests to us that what he thinks of when he thinks about this nation's history and traditions is that the span of time and the scale of time that we're thinking about should be measured in centuries and millennia rather than years and decades.
--:-- Sean Rameswaram: We should make a law that would stand the test of time so that hundreds and hundreds of years from now, they'll look back and say, no need to update this one at all. They nailed it back in 1235.
--:-- Professor Kenji Yoshino: I don't know.
--:-- Sean Rameswaram: You know, I can like order a whole restaurant to my house on my telephone from my closet now.
--:-- Professor Kenji Yoshino: I don't think there's a lot of common law that really, you know, dictates how that should work.
--:-- Sean Rameswaram: Does it feel a little, I don't know, antiquated?
--:-- Professor Kenji Yoshino: Yes, it absolutely does.
--:-- Sean Rameswaram: And your, you know, audible and to me visible exasperation here is something that I really want to sort of honor, right?
--:-- Professor Kenji Yoshino: Because I think that that is what many people are feeling when they read this opinion.
--:-- Sean Rameswaram: And we know that there is a better way.
--:-- Sean Rameswaram: And 2015 in the Obergefell opinion.
--:-- Professor Kenji Yoshino: And many people are focused on Obergefell because it legalized the right to same-sex marriage and made that the law of the land.
--:-- Professor Kenji Yoshino: But Obergefell is important for another reason as well, which is that this 1997 case that I mentioned, Washington versus Glucksburg, that told us to look at, you know, the nation's history and traditions in order to discern which unenumerated rights were recognized, gets seriously undermined by this Obergefell case.
--:-- Sean Rameswaram: So the Obergefell case, which is Justice Kennedy writing for a majority of the court, says, look, you know, history is a starting point, but it's not the ending point of this analysis.
--:-- Professor Kenji Yoshino: Are we really supposed to assume that tradition always gets it right?
--:-- Sean Rameswaram: The hope of Obergefell is to say, yeah, history is relevant, right?
--:-- Professor Kenji Yoshino: But we're not going to go back and look at, you know, antiquity, right, or the common law in order to figure out what rights we have in a 21st century society.
--:-- Sean Rameswaram: Professor, would you say that this idea that unenumerated rights to an abortion does not have, you know, deep roots in American history or tradition, is that the central idea of Alito's draft opinion?
--:-- Professor Kenji Yoshino: Yes.
--:-- Sean Rameswaram: And this idea could be applied to many other decisions the Supreme Court has made in the past decades?
--:-- Professor Kenji Yoshino: Yes 110 yes Same marriage interracial marriage you know contraception Any of those rights are now fully in play if you're going to say that an unenumerated right to be recognized has to be deeply rooted in this nation's history and traditions.
--:-- Sean Rameswaram: All right, gang, why don't we take a few minutes, stretch your legs, more with Professor Kenji Yoshino here at Today Explained in a few.
--:-- Sean Rameswaram: Support for today's show comes from Adio.
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--:-- Sean Rameswaram: All right, Today Explained.
--:-- Sean Rameswaram: And we are going to jump back into it with constitutional law professor Kenji Yoshino.
--:-- Sean Rameswaram: Professor, before we left off, you said 110% yes.
--:-- Sean Rameswaram: This Alito reading of Roe v. Wade we got in the leaked draft opinion last week suggests that there are other unenumerated rights that could be next.
--:-- Professor Kenji Yoshino: That's exactly right.
--:-- Sean Rameswaram: What else is on the chopping block?
--:-- Professor Kenji Yoshino: So the right to same-sex marriage, which was decided in 2015 in the Obergefell case, because applying Alito's standard, the right to same-sex marriage, is not deeply rooted in the nation's history and traditions.
--:-- Sean Rameswaram: I would also look in the LGBT context at same-sex sexual intimacy in Lawrence, which is seen as the Brown v. Board of the gay rights movement.
--:-- Sean Rameswaram: In the race context, at least the liberty, right to interracial marriage portion of Loving v. Virginia in 1967 could also be imperiled.
--:-- Sean Rameswaram: And then finally, just to round this out, moving over to gender and reproductive rights as well, Griswold v. Connecticut in 1965 protected the right to contraception as an unenumerated right, and that could go by the wayside as well.
--:-- Professor Kenji Yoshino: And so this is not beyond the pale.
--:-- Sean Rameswaram: I'm not saying that all of these rights are going to fall.
--:-- Professor Kenji Yoshino: Right.
--:-- Sean Rameswaram: And Alito acknowledges this himself in the draft, right?
--:-- Professor Kenji Yoshino: He says, don't worry, we're not coming for all your other unenumerated rights.
--:-- Sean Rameswaram: But you're saying there is still the possibility if they sort of open up this can of worms.
--:-- Professor Kenji Yoshino: Is that right?
--:-- Professor Kenji Yoshino: Yes.
--:-- Sean Rameswaram: Can I just say at the outset that I really don't like Supreme Court opinions that say like, oh, this is just a ticket good for one day, nothing to see here.
--:-- Professor Kenji Yoshino: Because the whole point of laying out a principle as a court of law is that it applies to other cases.
--:-- Sean Rameswaram: So I didn't like it when they did it in Bush versus Gore of saying like, this is just a precedent that's limited to its facts.
--:-- Professor Kenji Yoshino: I didn't even like it when they used it to uphold affirmative action the last time saying this holding may be narrowly conscribed to the facts in this case, which are unusual.
--:-- Sean Rameswaram: I don't think you get to say that.
--:-- Professor Kenji Yoshino: I think that's for subsequent courts to interpret.
--:-- Sean Rameswaram: I don't think you get to say, well, here's this principle that I'm articulating, but it's not going to extend very far.
--:-- Professor Kenji Yoshino: That's especially true when you get a situation like this, where they're laying out a test, and they're saying to be an unenumerated right that's recognized by this court, you have to be deeply rooted in the nation's history and traditions.
--:-- Sean Rameswaram: So all four of those cases, I'm not saying they're all on the chopping block necessarily, but they're all freshly imperiled.
--:-- Professor Kenji Yoshino: And we should not buy for a second, if it indeed becomes published as the law of the land, that this is not going to have implications for all those other contexts as well.
--:-- Sean Rameswaram: And the Supreme Court of the United States has a very specific name for this phenomenon of respecting its precedents.
--:-- Sean Rameswaram: You hear it in confirmation hearings, you read it in opinions, it's called stare decisis.
--:-- Professor Kenji Yoshino: If this opens up this opportunity to overturn presidents on whims, is it a direct violation of this sacred stare decisis?
--:-- Sean Rameswaram: So the even-handed part of me wants to say, like unenumerated rights, it's not like you're totally for unenumerated rights or against unenumerated rights.
--:-- Professor Kenji Yoshino: There's a middle ground that we're trying to figure out how to manage.
--:-- Sean Rameswaram: With stare decisis, it's not like we can say every single thing that the court has uttered is precedent forever.
--:-- Professor Kenji Yoshino: There have to be standards in which you can overrule precedents.
--:-- Sean Rameswaram: There are some famously very bad decisions that everyone agrees were very bad.
--:-- Professor Kenji Yoshino: Exactly.
--:-- Sean Rameswaram: So, you know, for example, Alito makes a lot of hay out of saying, well, look, you know, we had to overturn Dred Scott as a precedent with a constitutional amendment.
--:-- Professor Kenji Yoshino: That was the opinion that said Black individuals could not be citizens.
--:-- Sean Rameswaram: Also, Plessy v. Ferguson, that's the 1896 case that was overturned by Brown v. Board of Education.
--:-- Sean Rameswaram: So Plessy upheld the doctrine of separate but equal as being consistent with the Constitution.
--:-- Professor Kenji Yoshino: The question with stare decisis is not, you know, do you always retain precedent or do you just ignore precedent and rule whatever you want?
--:-- Sean Rameswaram: It's always going to be somewhere in between.
--:-- Professor Kenji Yoshino: But this Casey decision that doubled down on Roe in 1992, Casey laid out a very careful set of factors to weigh in thinking about whether or not precedent should be followed
--:-- Sean Rameswaram: And it laid out essentially four elements
--:-- Professor Kenji Yoshino: And the first of those was whether or not the rule of the prior decision had proven to be simply unworkable like lower courts make sense of it
--:-- Sean Rameswaram: Second the question was whether or not there had been reliance interest on the precedent
--:-- Professor Kenji Yoshino: And there the court said a whole generation has come to rely on Roe and ordered their social and economic lives around it
--:-- Sean Rameswaram: So we can't sweep the rug out from under all those individuals who have grown up thinking that they have this basic right to their bodily autonomy and integrity?
--:-- Professor Kenji Yoshino: And then the third and the fourth, has there been a change in doctrine or has there been a change in fact?
--:-- Sean Rameswaram: In other words, have subsequent cases chipped away at the original decision?
--:-- Professor Kenji Yoshino: And fourth, have there been facts that have come to light since the original decision that make us see the case totally differently?
--:-- Sean Rameswaram: Is part of the problem here that we've been too reliant on the Supreme Court to usher in progress in the United States instead of legislating it, the right to contraception, the right to interracial marriage, the right to same-sex sexual activity or same-sex marriage, all of it from the Supreme Court and not Congress.
--:-- Professor Kenji Yoshino: I think there's an even deeper problem here, right, which is that those groups that would most avail themselves of those rights, whether that's the LGBT community, whether that's women, whether that's racial minorities, were not part of the framing of the Constitution.
--:-- Sean Rameswaram: So we have, you know, what I often call status-based exclusions from we the people that existed at our founding and for many centuries thereafter.
--:-- Professor Kenji Yoshino: And so if you or I would not have been participants, right, in the framing of the Constitution, not just because, you know, all those people are dead, but because they wouldn't have included the social groups to which we belong, then how legitimate is a document that purports to bind all of us?
--:-- Sean Rameswaram: You know, people almost laugh when someone says like, oh, there should be a constitutional amendment about that, because it almost seems like they've entered the domain of utopian politics because it seems so implausible that the Constitution would be amended.
--:-- Professor Kenji Yoshino: It's only been amended 27 times over the course of our nation's history, and 10 of those obviously were in that big installment of the Bill of Rights two years after the framing of the Constitution.
--:-- Sean Rameswaram: So that's not very many times.
--:-- Professor Kenji Yoshino: And that means that the document is unable to update itself so that if you take a historically bound understanding of the document, as originalism often does, or these stingy, you know, understandings of unenumerated rights as expounded by Alito do, then the people who are going to get the short end of the stick are going to be that component of today's we, the people, you know, who were unrepresented at the time of the founding, right?
--:-- Sean Rameswaram: So it just seems a little bit too convenient to say, you know, lots of unenumerated rights, but not your unenumerated rights, and lots of stare decisis, but not this particular form of stare decisis.
--:-- Professor Kenji Yoshino: And it seems completely driven by a particular result to think about the Constitution as a document that only protects certain kinds of people.
--:-- Sean Rameswaram: And those certain kinds of people were the people who were around when we, the people, right, in 1789 or during the Reconstruction were there, rather than the much more diverse, heterogeneous society that we are in 2022.
--:-- Professor Kenji Yoshino: Too.
--:-- Sean Rameswaram: Professor, what does it say about the state of our democracy in the United States if a decision like this drops in the coming weeks?
--:-- Professor Kenji Yoshino: Five unelected conservative justices, several of whom were nominated by presidents who lost the popular vote, overturning 50 years of reproductive rights tradition in this country, overturning a right most Americans believe they should have.
--:-- Sean Rameswaram: One of the kind of core tenets of constitutional law is what's known as the counter-majoritarian difficulty.
--:-- Sean Rameswaram: You have sort of five lawyers on a committee in Washington, D.C. deciding the fate of all of us who live in the United States.
--:-- Professor Kenji Yoshino: You know, why is it those individuals get to hand down these decisions that bind all of us.
--:-- Sean Rameswaram: One of the justifications for the counter-majoritarian difficulty is that you have this majority at the top of society, the Supreme Court, handing down opinions that protect minorities at the bottom of society.
--:-- Professor Kenji Yoshino: I think one of the things that you're pointing out here is that this is not that.
--:-- Professor Kenji Yoshino: This is a very tiny minority at the top of society protecting the interests of other individuals who have historically been in power.
--:-- Sean Rameswaram: And so it's not actually a minority at the top of society protecting the underdog.
--:-- Professor Kenji Yoshino: This is a minority at the top of the society protecting a very sedimented status quo.
--:-- Sean Rameswaram: All of us, sadly, are going to need to prepare ourselves for a court that is going to be ruling very much against minorities, right, against a kind of pluralization of what it means to be part of We the People.
--:-- Professor Kenji Yoshino: And so in that sense, this court is more conservative than any court we've had since the early 20th century.
--:-- Sean Rameswaram: This land is your land, and this land is my land.
--:-- Sean Rameswaram: From California to the New York Island, from the Redwood Forest to the Gulf Stream waters, this land was made for you and me.
--:-- Sean Rameswaram: As I went walking that ribbon of highway
--:-- Sean Rameswaram: And I saw above me that in my...
--:-- Sean Rameswaram: Professor Kenji Yoshino, Constitutional Law at New York University's School of Law.
--:-- Victoria Chamberlain: did the assignment.
--:-- Sean Rameswaram: Matthew Collette, Laura Bullard, and Paul Mounsey checked her work.
--:-- Sean Rameswaram: I'm Sean Ramos for I'm class dismissed.
--:-- Sean Rameswaram: We all have moments where we could have done better, like cutting your own hair.
--:-- Sean Rameswaram: Oh, yikes.
--:-- Sean Rameswaram: Or forgetting sunscreen, so now you look like a tomato.
--:-- Sean Rameswaram: Ouch.
--:-- Sean Rameswaram: Could have done better.
--:-- Sean Rameswaram: Same goes for where you invest.
--:-- Sean Rameswaram: Level up and invest smarter with Schwab.
--:-- Sean Rameswaram: Get market insights, education, and human help when you need it.
--:-- Sean Rameswaram: Learn more at schwab.com.
