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David Sloss discusses how the Supreme Court has ruled in Dobbs v. Jackson Women’s Health and New York State Rifle v. Bruen, addressing gun rights and incorporation doctrine.

Image courtesy of interviewee. January 18, 2024

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This video video discusses the evolution of substantive due process and incorporation doctrines in U.S. constitutional law, primarily focusing on how these doctrines protect individual rights against state actions, particularly through the lens of the 14th Amendment.

Initially, before 1947, these doctrines were unified and centered on economic rights. However, significant developments occurred post-1947, particularly with Justice Hugo Black's idea of "total incorporation," suggesting that the Bill of Rights should apply to the states, which the Supreme Court did not fully adopt. Instead, the Court established "selective incorporation," applying clauses of the Bill of Rights to the states gradually through various decisions from 1948 to 1971.

The revival of substantive due process in the 1960s marked a shift toward protecting rights related to privacy and autonomy, particularly in relation to contraception and abortion. The paper highlights pivotal Supreme Court cases, including "McDonald v. City of Chicago" (2010), which incorporated the Second Amendment against states and restricted state power regarding gun laws, contrasting this with the recent "Dobbs v. Jackson" (2022) decision that removed federal abortion protections.

The author critiques the current judicial approach favoring enumerated rights under incorporation doctrine (like gun rights) while limiting unenumerated rights (like abortion), arguing this leads to arbitrary distinctions and shifts power from elected legislatures to federal courts. Throughout, the text points out the inconsistency and potential for rights, such as the right to bear arms, which might not universally meet the criteria for fundamental rights recognized by international human rights standards.

Finally, the paper concludes that the frameworks for determining which rights are fundamental could benefit from an approach that includes international human rights law, to provide a more objective basis for decision-making in contentious areas like gun rights and abortion.

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The, the paper we're discussing starts out

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by talking about the development

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of both substantive due process doctrine

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and, incorporation doctrine.

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So before 1947,

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these two doctrines were really one doctrine

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and the doctrine focused on protection of

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fundamental rights under the due process clause

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of the 14th Amendment.

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The idea was that the 14th Amendment,

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protects individuals from infringement

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of their fundamental rights by state governments,

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and that federal courts have a role to play in,

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enforcing those rights against state governments.

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Remember, in the US we have a system that divides power

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between the federal government and the state governments.

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Uh, for a long time, the idea was,

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if I want my rights protected against state governments,

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I look to state courts

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and state law if I want my rights protected

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against the federal government.

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I look to federal courts and federal law,

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but applying the 14th Amendment due process clause basically

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got federal courts involved

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in using the federal constitution to protect

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individuals from infringement of rights

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by state governments.

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So in the early 19, in the early, 20th century,

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the court really focused a lot on economic rights

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as fundamental rights.

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Uh, and then there was really a major revolution in the US

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in the 1930s that, scaled back,

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federal constitutional protection for economic rights.

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Uh, and that left, you know, a small number

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of rights protected under the 14th amendment due process

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clause, but frankly, not a whole lot.

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So then 1947 is a critical turning point

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because in that year,

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in a case called Adamson v California, justice, Hugo Black,

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proposed this idea of

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what he called total incorporation.

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And the basic idea was that, in his view, one

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of the main purposes of the 14th Amendment was to

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incorporate the bill of rights against the states.

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So what that means is the Bill

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of Rights is really the first eight amendments

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to the Constitution,

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and their whole range of rights protected them.

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Uh, originally it was understood that the Bill of Rights

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limits the federal government,

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but does not apply to the state governments.

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So his idea was that the 14th Amendment made all

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of those provisions in the Bill of Rights,

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the first eight amendments binding on the state governments,

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and that was known as total incorporation.

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But the Supreme Court never actually bought black's idea

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of total incorporation.

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And instead, what happened is, in a whole series

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of decisions between about 1948

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and 1971,

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the court engaged in a processes come to be known as

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selective incorporation, where one by one,

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and it wasn't just amendment by amendment,

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but really clause by clause of particular amendments,

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the court says this clause

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of the Sixth Amendment is binding on the states.

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This clause of the eighth Amendment is binding on

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the states, et cetera.

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Right? And by the time we get to 1971, most

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of the rights in the Bill

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of Rights are binding on the states under this doctrine,

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known as, selective incorporation.

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Um, meanwhile, there's a revival of

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substantive due process doctrine that begins in the 1960s.

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But whereas the old substantive due process doctrine

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in the sort of, early part

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of the 20th century focused on economic rights,

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modern substantive due process doctrine

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that really gets going in the 1960s focuses on

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privacy and autonomy.

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And so under that doctrine, we get res, protections

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for the right to use contraceptives

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and ultimately protections for abortion rights.

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And most of modern substantive due process then really

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focuses on abortion rights,

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which are protected under the 14th Amendment, basically from

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1973 until, until last year when the court decided,

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Doss, right.

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Meanwhile, incorporation doctrine really stops in

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1971, and nothing happens with it until 2010.

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And then in 2010, in a case called McDonald v, city

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of Chicago, the Supreme Court says, well,

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the Second Amendment is binding on the states under

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incorporation doctrine.

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And McDonald was a pretty revolutionary decision

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because for more than 200 years, state

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and local governments had been free to enact,

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whatever gun control measures they wanted,

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free from any federal constitutional constraints.

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And now, all of a sudden in 2010, the court says, well,

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the Constitution actually limits the power of state

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and local governments to enact gun control measures.

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Uh, excuse me.

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And, that, you know,

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2010 decision in McDonald is in an important precursor

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for the court's, 2022 decision in Bruin,

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which puts further restrictions on the ability of state

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and local governments to enact,

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what I would consider reasonable gun control measures.

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And so we get these two cases coming down in

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June 20th, 2020, sorry, June, 2022,

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which are brune on guns, which limits the power of state

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and local governments to enact gun control regulations

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under so-called incorporation doctrine

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and Dobbs on abortion, which free state

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and local governments to,

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enact restrictions on abortion originally before 1947.

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Substantive due process

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and incorporation were really both treated

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as a single doctrine,

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and they're both based on the same text,

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same constitutional text, which is the due process clause

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of the 14th amendment.

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The due process clause of the 14th Amendment says,

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no state shall deprive any person of life, liberty,

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or property without due process of law.

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And although on its face

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that sounds like a procedural pro protection,

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it's been generally understood since at least the 1890s that

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that that,

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particular constitutional provision also provides

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substantive protection.

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There's some basic, you know, rights of life, liberty,

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and property that are so fundamental

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that governments may not infringe those rights regardless of

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what process they use, right?

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So this is the core idea of substantive due process.

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And it's also, frankly, the core idea

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of incorporation doctrine.

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Uh, and both doctrines are concerned with trying

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to determine what are those fundamental rights

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that state and go local governments may not infringe.

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Um, and, you know, how do we,

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how do we determine those rights, you know?

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So the,

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and the court, today, you know, when the court is trying

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to figure out what are fundamental rights,

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it's got these different linguistic formulations that sort

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of set a standard for what qualifies

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as a fundamental, right?

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But if you look at the linguistic formulations the court

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uses, for that, it's basically the same test for

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what qualifies as a fundamental right under incorporation

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doctrine, and what qualifies as a fundamental right under

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substantive due process.

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So the ostensible distinction between the two is

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that, incorporation protects

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what are called enumerated rights.

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Substantive due process protects what are called

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un enumerated rights.

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Enumerated meaning the right is spelled out explicitly in

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the text of the Constitution, un enumerated,

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meaning it's not spelled out explicitly in the

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text of the Constitution.

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So it is true that the Second Amendment talks

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About, you know, the right to bear arms.

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Um, there's nothing explicit in the text of the Constitution

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that talks about the right to have an abortion

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or even the right to privacy.

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So from the court standpoint today, they sort of, you know,

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favor judicial protection of enumerated rights.

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They disfavor protection of un enumerated rights,

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and that's why we get, you know,

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gun rights coming out one way

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and abortion rights coming out a different way.

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But in fact, that distinction is more illusory than real.

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So the court's most recent incorporation,

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so-called incorporation case, is,

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a decision in 2020, which held that the right

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to a unanimous jury verdict,

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which is protected under the Sixth Amendment,

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is binding on state governments.

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But that's not actually an enumerated, right?

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There's nothing in the Sixth Amendment about a right

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to a unanimous jury verdict, right?

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So the court treats that in its doctrine

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as an enumerated, right?

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But it's actually, I mean,

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the Sixth Amendment talk does talk about a right

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to a jury trial,

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but there's nothing in the sex amendment about a right

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to a unanimous jury verdict.

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And the court had previously said that right?

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Is not binding on the states

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because it's not spelled out in the Constitution,

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and states can do what they want.

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And then in 2020, the court changes his mind

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and says, this is binding on the states.

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And they say they're applying incorporation doctrine,

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which in theory is applying enumerated rights,

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except this is not a right

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that's spelled out in the Constitution.

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So why does that count as incorporation?

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Whereas abortion counts as substantive due process?

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It's sort of an arbitrary distinction.

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The main test the court uses these days to determine

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what rights are fundamental rights is a historical test,

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and they're looking for rights that are deeply rooted

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in the nation's history and tradition, right?

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Um, but, the, the, the test is,

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in my view, sort of theoretically incoherent.

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And here's why. Because when a,

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when the court decides that X right, qualifies

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as a fundamental right, the main consequence

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of that is they are transferring

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decision making authority from state legislatures

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to federal courts.

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So consider, McDonald

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and gun rights as an example, right?

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For more than 200 years, up until 2010,

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decisions about the scope of protection for gun rights

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or the right to bear arms, right?

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Were made by state legislatures

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and derivatively by local governments

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and federal courts didn't interfere when the court

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decides that gun rights are a fundamental, right?

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Effectively, what it's doing is it is transferring

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responsibility for transferring decision making authority

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from state and local legislatures to federal courts, right?

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Um, now they try to justify that by history.

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But you know, the history is very clear on this, that

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for more than 200 years, that that power

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to make those decisions was vested in state

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and local governments, right?

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And there are two possibilities here.

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One is that, state

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and local governments are also are all basically providing

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the same protection for gun rights.

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And if that's true, then the only thing you accomplish

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by transferring authority from, you know,

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elected legislators to unelected judges

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is you transfer authority from elected

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legislators to unelected judges.

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Why should we do that? You know?

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And if there's actually a variety of state

246
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and local laws on the subject, which was the case sort of

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before McDonald, right?

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One of the foundational premises

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of our constitutional system, well,

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two foundational premises of our constitutional system.

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One is that we divide authority between, you know,

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state governments on the one hand,

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and federal governments on the other hand.

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And two is that we have a preference for decision making

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by democratic bodies

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because they're elected rather than decision making

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by unelected judges, right?

258
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And so,

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and that allows, you know, that allows for,

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different legislatures in different states

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to make different judgements about what's the right level

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of protection for gun rights and what are sensible controls

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and restrictions on guns, right?

264
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Um, and the court invokes history to wipe all that away.

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But, but how does a history of, you know, it makes no sense.

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It's sort of illogical to say that a,

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that a traditional history that divides this power

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among the 50 states supports a decision to concentrate

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that power in the Supreme Court.

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The history doesn't support that,

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and yet they say they rely on history to sort

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of make that decision.

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So the, the historical test just cannot, you know,

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even in whatever the history shows,

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the historical test cannot even in theory provide a coherent

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theoretical justification for the main thing

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that they're doing here, which is transferring decision

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making authority from state legislatures to federal courts.

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For 1947,

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the court was really looking more at natural law principles.

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And I do think that, at least in theory,

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that makes sense, right?

283
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The, the, the

284
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Constitution itself includes a provision,

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the Ninth Amendment, which says basically that, look,

286
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the rights spelled out in the first eight amendments

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are not the only, you know, important rights, right?

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There are other important fundamental rights too,

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and substantive due process doctrines sort

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of recognizes that.

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And in fact, when there was a revival

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of the doctrine in the 1960s, at least some

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of the justices really wanted

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to base it on the Ninth Amendment.

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And the idea in the Ninth Amendment

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that there are fundamental rights that if we have, you know,

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if we wanna preserve a system of government,

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which we can loosely refer to as sort of liberal democracy,

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there have to be limits on the power of government

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to infringe.

301
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You know, we could call 'em inalienable rights,

302
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we could call 'em fundamental rights.

303
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But there's this idea rooted in natural law that all of us

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as human beings are endowed with certain inalienable rights

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or fundamental rights, that if we really wanna say

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that we live in a system of free government,

307
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government may not infringe those rights.

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So I think that idea is very intuitively

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appealing to a lot of people.

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The problem is always, well, who gets to decide

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what those fundamental rights are?

312
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Right? You know, when we,

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if we talk about abortion, right?

314
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There's one group of people

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who think the fetus has a fundamental right to life.

316
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And there's another group of people

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who think the woman has a fundamental right

318
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to control her body, right?

319
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So who's gonna be the sort of umpire who mediates

320
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between those two really conflicting visions of

321
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what qualifies as fundamental rights?

322
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And for a long time, we left it to,

323
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basically state legislatures to figure that out.

324
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Uh, but in the sort of modern era, you know,

325
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post World War ii,

326
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I would say there was an in increasing den tendency to look

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to courts as sort of umpires to,

328
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resolve those disputes, right?

329
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And, what is really interesting,

330
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so, so I'm, a lot

331
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of my background is in international human rights law.

332
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And I took, undertook a project actually several years ago

333
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to look at the court's incorporation doctrine in light

334
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of international human rights law.

335
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And what you get is a series of about 15

336
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or 20 cases, as I said, between 1948

337
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and 1971, where the court is selectively saying

338
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this right in the Bill of Rights is incorporated and

339
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therefore binding on the states.

340
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This right in the Bill of Rights is not incorporated in

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therefore not binding on the states.

342
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And what's interesting is those decisions line up really,

343
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really nicely, not perfectly,

344
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but very closely with, well,

345
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is it in the universal Declaration of Human Rights or not?

346
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If the right is there in the Universal Declaration

347
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of Human Rights, well, it's incorporated,

348
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it's binding on the states.

349
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If it's not there in the Universal Declaration

350
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of Human Rights, it's not incorporated.

351
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It's not binding on the states, you know?

352
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Now the court never actually said that this was

353
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what it was doing, but the court during

354
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that period had a vision of fundamental rights

355
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that really aligned with the vision of fundamental rights

356
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that's there in the Universal Declaration of Human Rights.

357
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And to me, that vision is very, sort of morally appealing.

358
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And I think the doctrine is defensible on that basis.

359
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Notice then, and I think,

360
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we're probably running outta time.

361
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So also to close with this, that,

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under any, you know, if you look to,

363
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what I propose in the paper is looking to a combination

364
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of international human rights law

365
00:19:16.345 --> 00:19:18.285
and comparative constitutional law

366
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to determine which rights qualify as fundamental rights.

367
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And I think this move makes sense

368
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because it does provide an objective test so

369
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that courts are not merely applying their own personal

370
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subjective preferences.

371
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But courts are looking to objective standards to determine

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what rights qualify as fundamental rights.

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And whether you look at international human rights law,

374
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or to comparative constitutional law,

375
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gun rights clearly do not qualify.

376
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Uh, and therefore, in my view,

377
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the court's decision in McDonald

378
00:19:54.805 --> 00:19:57.345
to make the Second Amendment binding on the states

379
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was wrong, and that decision should be reversed.

380
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The situation with abortion rights is more complicated.

381
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International human rights law is fundamentally

382
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ambiguous on abortion rights.

383
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You can find support in international human rights law

384
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for the woman's right to choose,

385
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but you can also find support in international human rights

386
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law for, the right, right to life of the fetus.

387
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Right? So, so it's a little hard to come

388
00:20:28.285 --> 00:20:29.725
to a definitive answer on that.

389
00:20:30.605 --> 00:20:34.365
I did look then not just a comparative constitutional law,

390
00:20:34.785 --> 00:20:37.325
but comparative law more, more broadly.

391
00:20:37.985 --> 00:20:42.005
And what, what's interesting there is,

392
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this is one of the few rights like I have in the

393
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article tables that

394
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List a bunch of different rights

395
00:20:48.085 --> 00:20:50.045
and have, you know, different analysis.

396
00:20:50.185 --> 00:20:51.725
We won't go into all the detail, but,

397
00:20:52.065 --> 00:20:55.085
but, abortion is one of the few rights

398
00:20:55.085 --> 00:20:56.965
where if you break the world into sort

399
00:20:56.965 --> 00:21:00.285
of liberal democracies and everybody else, right?

400
00:21:00.865 --> 00:21:04.725
The US is an outlier among liberal democracies

401
00:21:05.465 --> 00:21:08.125
in its, I mean, now post Dobbs, right?

402
00:21:08.195 --> 00:21:10.165
Just this is just in the last year and a half.

403
00:21:10.305 --> 00:21:13.845
But since the court's decision in Dobbs we're really an

404
00:21:13.845 --> 00:21:17.925
outlier among liberal democracies in not protecting,

405
00:21:18.045 --> 00:21:19.085
a woman's right to choose,

406
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most liberal democracies do protect a woman's right

407
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to choose, even, not, not necessarily

408
00:21:27.245 --> 00:21:28.765
through constitutional law, some

409
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through statutory law, right?

410
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But most liberal democracies

411
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protect a woman's right to choose.

412
00:21:33.985 --> 00:21:36.365
And most authoritarian states do not.

413
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So the United States is sort of aligning itself with,

414
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you know, authoritarian states here in the way it's

415
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approaching abortion these days.

416
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And I find that, troubling.

Evolution of Due Process and Incorporation Doctrines

00:00:00 - The, the paper we're discussing starts out by talking about the development of both substantive due process doctrine and, incorporation doctrine. So before 1947, these two doctrines were really one doctrine and the doctrine focused on protection of fundamental rights under the due process clause of the 14th Amendment. The idea was that the 14th Amendment,
00:00:35 - of their fundamental rights by state governments, and that federal courts have a role to play in, enforcing those rights against state governments. Remember, in the US we have a system that divides power between the federal government and the state governments. for a long time, the idea was, if I want my rights protected against state governments,
00:01:03 - and state law if I want my rights protected against the federal government. I look to federal courts and federal law, but applying the 14th Amendment due process clause basically got federal courts involved in using the federal constitution to protect individuals from infringement of rights by state governments. So in the early 19, in the early, 20th century, the court really focused a lot on economic rights as fundamental rights.
00:01:36 - in the 1930s that, scaled back, federal constitutional protection for economic rights. and that left, you know, a small number of rights protected under the 14th amendment due process clause, but frankly, not a whole lot. So then 1947 is a critical turning point because in that year, in a case called Adamson v California, justice, Hugo Black,
00:02:08 - what he called total incorporation. And the basic idea was that, in his view, one of the main purposes of the 14th Amendment was to incorporate the bill of rights against the states. So what that means is the Bill of Rights is really the first eight amendments to the Constitution, and their whole range of rights protected them. originally it was understood that the Bill of Rights
00:02:38 - but does not apply to the state governments. So his idea was that the 14th Amendment made all of those provisions in the Bill of Rights, the first eight amendments binding on the state governments, and that was known as total incorporation. But the Supreme Court never actually bought black's idea of total incorporation. And instead, what happened is, in a whole series of decisions between about 1948 and 1971,

Incorporation Doctrine: Evolution and Impact

00:03:12 - selective incorporation, where one by one, and it wasn't just amendment by amendment, but really clause by clause of particular amendments, the court says this clause of the Sixth Amendment is binding on the states. This clause of the eighth Amendment is binding on the states, et cetera. Right? And by the time we get to 1971, most of the rights in the Bill of Rights are binding on the states under this doctrine,
00:03:44 - meanwhile, there's a revival of substantive due process doctrine that begins in the 1960s. But whereas the old substantive due process doctrine in the sort of, early part of the 20th century focused on economic rights, modern substantive due process doctrine that really gets going in the 1960s focuses on
00:04:13 - And so under that doctrine, we get res, protections for the right to use contraceptives and ultimately protections for abortion rights. And most of modern substantive due process then really focuses on abortion rights, which are protected under the 14th Amendment, basically from 1973 until, until last year when the court decided, Doss, right.
00:04:48 - 1971, and nothing happens with it until 2010. And then in 2010, in a case called McDonald v, city of Chicago, the Supreme Court says, well, the Second Amendment is binding on the states under incorporation doctrine. And McDonald was a pretty revolutionary decision because for more than 200 years, state
00:05:17 - whatever gun control measures they wanted, free from any federal constitutional constraints. And now, all of a sudden in 2010, the court says, well, the Constitution actually limits the power of state and local governments to enact gun control measures. excuse me. And, that, you know, 2010 decision in McDonald is in an important precursor
00:05:48 - which puts further restrictions on the ability of state and local governments to enact, what I would consider reasonable gun control measures. And so we get these two cases coming down in June 20th, 2020, sorry, June, 2022, which are brune on guns, which limits the power of state and local governments to enact gun control regulations under so-called incorporation doctrine

Substantive Due Process and Incorporation Doctrine Overview

00:06:19 - and local governments to, enact restrictions on abortion originally before 1947. Substantive due process and incorporation were really both treated as a single doctrine, and they're both based on the same text, same constitutional text, which is the due process clause of the 14th amendment. The due process clause of the 14th Amendment says, no state shall deprive any person of life, liberty,
00:06:51 - And although on its face that sounds like a procedural pro protection, it's been generally understood since at least the 1890s that that that, particular constitutional provision also provides substantive protection. There's some basic, you know, rights of life, liberty, and property that are so fundamental that governments may not infringe those rights regardless of
00:07:23 - So this is the core idea of substantive due process. And it's also, frankly, the core idea of incorporation doctrine. and both doctrines are concerned with trying to determine what are those fundamental rights that state and go local governments may not infringe. and, you know, how do we, how do we determine those rights, you know? So the,
00:07:57 - to figure out what are fundamental rights, it's got these different linguistic formulations that sort of set a standard for what qualifies as a fundamental, right? But if you look at the linguistic formulations the court uses, for that, it's basically the same test for what qualifies as a fundamental right under incorporation doctrine, and what qualifies as a fundamental right under
00:08:26 - So the ostensible distinction between the two is that, incorporation protects what are called enumerated rights. Substantive due process protects what are called un enumerated rights. Enumerated meaning the right is spelled out explicitly in the text of the Constitution, un enumerated, meaning it's not spelled out explicitly in the text of the Constitution. So it is true that the Second Amendment talks
00:08:57 - there's nothing explicit in the text of the Constitution that talks about the right to have an abortion or even the right to privacy. So from the court standpoint today, they sort of, you know, favor judicial protection of enumerated rights. They disfavor protection of un enumerated rights, and that's why we get, you know, gun rights coming out one way and abortion rights coming out a different way.

Arbitrary Distinctions in Judicial Incorporation

00:09:31 - So the court's most recent incorporation, so-called incorporation case, is, a decision in 2020, which held that the right to a unanimous jury verdict, which is protected under the Sixth Amendment, is binding on state governments. But that's not actually an enumerated, right? There's nothing in the Sixth Amendment about a right
00:09:59 - So the court treats that in its doctrine as an enumerated, right? But it's actually, I mean, the Sixth Amendment talk does talk about a right to a jury trial, but there's nothing in the sex amendment about a right to a unanimous jury verdict. And the court had previously said that right? Is not binding on the states because it's not spelled out in the Constitution, and states can do what they want. And then in 2020, the court changes his mind and says, this is binding on the states.
00:10:31 - which in theory is applying enumerated rights, except this is not a right that's spelled out in the Constitution. So why does that count as incorporation? Whereas abortion counts as substantive due process? It's sort of an arbitrary distinction. The main test the court uses these days to determine what rights are fundamental rights is a historical test, and they're looking for rights that are deeply rooted in the nation's history and tradition, right?
00:11:08 - in my view, sort of theoretically incoherent. And here's why. Because when a, when the court decides that X right, qualifies as a fundamental right, the main consequence of that is they are transferring decision making authority from state legislatures
00:11:35 - So consider, McDonald and gun rights as an example, right? For more than 200 years, up until 2010, decisions about the scope of protection for gun rights or the right to bear arms, right? Were made by state legislatures and derivatively by local governments and federal courts didn't interfere when the court decides that gun rights are a fundamental, right?
00:12:08 - responsibility for transferring decision making authority from state and local legislatures to federal courts, right? now they try to justify that by history. But you know, the history is very clear on this, that for more than 200 years, that that power to make those decisions was vested in state and local governments, right?

Authority Shift: Elected vs. Unelected Decision-Makers

00:12:39 - One is that, state and local governments are also are all basically providing the same protection for gun rights. And if that's true, then the only thing you accomplish by transferring authority from, you know, elected legislators to unelected judges is you transfer authority from elected legislators to unelected judges. Why should we do that? You know? And if there's actually a variety of state and local laws on the subject, which was the case sort of
00:13:12 - One of the foundational premises of our constitutional system, well, two foundational premises of our constitutional system. One is that we divide authority between, you know, state governments on the one hand, and federal governments on the other hand. And two is that we have a preference for decision making by democratic bodies because they're elected rather than decision making by unelected judges, right?
00:13:42 - and that allows, you know, that allows for, different legislatures in different states to make different judgements about what's the right level of protection for gun rights and what are sensible controls and restrictions on guns, right? and the court invokes history to wipe all that away. But, but how does a history of, you know, it makes no sense. It's sort of illogical to say that a,
00:14:16 - among the 50 states supports a decision to concentrate that power in the Supreme Court. The history doesn't support that, and yet they say they rely on history to sort of make that decision. So the, the historical test just cannot, you know, even in whatever the history shows, the historical test cannot even in theory provide a coherent theoretical justification for the main thing
00:14:47 - making authority from state legislatures to federal courts. For 1947, the court was really looking more at natural law principles. And I do think that, at least in theory, that makes sense, right? The, the, the Constitution itself includes a provision, the Ninth Amendment, which says basically that, look,
00:15:19 - are not the only, you know, important rights, right? There are other important fundamental rights too, and substantive due process doctrines sort of recognizes that. And in fact, when there was a revival of the doctrine in the 1960s, at least some of the justices really wanted to base it on the Ninth Amendment. And the idea in the Ninth Amendment that there are fundamental rights that if we have, you know,

Fundamental Rights: Debate and Judicial Authority

00:15:48 - which we can loosely refer to as sort of liberal democracy, there have to be limits on the power of government to infringe. You know, we could call 'em inalienable rights, we could call 'em fundamental rights. But there's this idea rooted in natural law that all of us as human beings are endowed with certain inalienable rights or fundamental rights, that if we really wanna say
00:16:19 - government may not infringe those rights. So I think that idea is very intuitively appealing to a lot of people. The problem is always, well, who gets to decide what those fundamental rights are? Right? You know, when we, if we talk about abortion, right? There's one group of people who think the fetus has a fundamental right to life. And there's another group of people who think the woman has a fundamental right to control her body, right?
00:16:52 - between those two really conflicting visions of what qualifies as fundamental rights? And for a long time, we left it to, basically state legislatures to figure that out. but in the sort of modern era, you know, post World War ii, I would say there was an in increasing den tendency to look to courts as sort of umpires to,
00:17:24 - And, what is really interesting, so, so I'm, a lot of my background is in international human rights law. And I took, undertook a project actually several years ago to look at the court's incorporation doctrine in light of international human rights law. And what you get is a series of about 15 or 20 cases, as I said, between 1948
00:17:57 - this right in the Bill of Rights is incorporated and therefore binding on the states. This right in the Bill of Rights is not incorporated in therefore not binding on the states. And what's interesting is those decisions line up really, really nicely, not perfectly, but very closely with, well, is it in the universal Declaration of Human Rights or not? If the right is there in the Universal Declaration of Human Rights, well, it's incorporated,
00:18:26 - If it's not there in the Universal Declaration of Human Rights, it's not incorporated. It's not binding on the states, you know? Now the court never actually said that this was what it was doing, but the court during that period had a vision of fundamental rights that really aligned with the vision of fundamental rights that's there in the Universal Declaration of Human Rights. And to me, that vision is very, sort of morally appealing. And I think the doctrine is defensible on that basis.

Fundamental Rights: International Law and Comparisons

00:19:01 - we're probably running outta time. So also to close with this, that, under any, you know, if you look to, what I propose in the paper is looking to a combination of international human rights law and comparative constitutional law to determine which rights qualify as fundamental rights. And I think this move makes sense because it does provide an objective test so
00:19:32 - subjective preferences. But courts are looking to objective standards to determine what rights qualify as fundamental rights. And whether you look at international human rights law, or to comparative constitutional law, gun rights clearly do not qualify. and therefore, in my view, the court's decision in McDonald to make the Second Amendment binding on the states was wrong, and that decision should be reversed.
00:20:06 - International human rights law is fundamentally ambiguous on abortion rights. You can find support in international human rights law for the woman's right to choose, but you can also find support in international human rights law for, the right, right to life of the fetus. Right? So, so it's a little hard to come to a definitive answer on that. I did look then not just a comparative constitutional law,
00:20:37 - And what, what's interesting there is, this is one of the few rights like I have in the article tables that List a bunch of different rights and have, you know, different analysis. We won't go into all the detail, but, but, abortion is one of the few rights where if you break the world into sort of liberal democracies and everybody else, right? The US is an outlier among liberal democracies
00:21:08 - Just this is just in the last year and a half. But since the court's decision in Dobbs we're really an outlier among liberal democracies in not protecting, a woman's right to choose, most liberal democracies do protect a woman's right to choose, even, not, not necessarily through constitutional law, some through statutory law, right? But most liberal democracies protect a woman's right to choose. And most authoritarian states do not.
00:21:47 - you know, authoritarian states here in the way it's approaching abortion these days. And I find that, troubling.

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