Note: This is an educational course, not legal advice.
Some rights the Court protects are not named in the Constitution: to marry, to raise one's children, to refuse medical treatment. How does a judge decide which unnamed (unenumerated) liberties the Due Process Clause protects? Two methods, which you met in general form in originalism and living constitutionalism, divide the justices.
| History and tradition (Glucksberg) | Reasoned judgment (Harlan in Poe; Obergefell) | |
|---|---|---|
| Source | Washington v. Glucksberg (1997), unanimous in judgment | Justice Harlan's dissent in Poe v. Ullman (1961); used in Obergefell v. Hodges (2015) |
| First step | a "careful description" of the asserted right, stated narrowly | identify the interest at stake in a broader principle (for example, marriage) |
| The test | is it "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty"? | does it fit the "rational continuum" of liberty, judged by a tradition that "is a living thing"? |
| Role of history | history sets the limits | history and tradition guide the inquiry but "do not set its outer boundaries" (Obergefell) |
| Leading use | no right to assisted suicide (Glucksberg, 1997) | a right to marry for same-sex couples (Obergefell, 2015) |
Why it works
Supporters of the history and tradition method say it restrains judges. Rights not written in the text should be ones the nation has long recognized, so that judges do not substitute their own values for the people's; everything else is left to democratic choice. Its critics say a narrow description of a right can decide a case before it starts: almost no new claim was "deeply rooted" when described in very specific terms, and the method can freeze past injustices. Supporters of reasoned judgment say the Constitution protects principles of liberty that later generations may see more clearly, guided by precedent and history. Its critics say it gives judges too much room to declare rights that the people never adopted. The justices who use each method all claim to respect both history and the limits of the judicial role; they disagree about how.
Key idea
Two methods for unenumerated rights: Glucksberg asks for a careful description of the right and whether it is deeply rooted in history and tradition; Harlan's Poe dissent, followed in Obergefell, reasons from broader principles with tradition as a living guide. Each has serious defenders; describe each fairly.
Worked example: Describing the right
A patient claims a right to choose an experimental drug not yet approved. Under Glucksberg, what is the first step?
- Give a careful, specific description: "a right of a terminally ill patient to obtain a drug not yet approved," not "a right to make medical decisions."
- Then ask whether that specific right is deeply rooted in the nation's history and tradition.
- If not, rational basis review applies to the law.
Answer: Describe the right narrowly and carefully, then look to history and tradition.
Worked example: Which method?
A majority opinion says that history and tradition "guide and discipline" the inquiry "but do not set its outer boundaries." Which approach is this, and which case?
- The sentence treats history as a guide, not a limit.
- That is Obergefell v. Hodges (2015), following the reasoned-judgment approach.
Answer: Reasoned judgment; Obergefell v. Hodges.
Common mistake
Treating one method as the law's clear answer. The Court has used both, and the justices disagree. Present each in its best form: Glucksberg's supporters stress restraint and democratic choice; its critics say a narrow description of the right can decide the case in advance. Reasoned judgment's supporters stress principle and growth; its critics stress unchecked judicial power.