Abigail R. Moncrieff (Cleveland State University – Cleveland State University College of Law) has posted The Uncertainty Principle: A Reconceptualization of American Substantive Rights on SSRN. Here is the abstract:
One of the most persistent puzzles in constitutional jurisprudence is how to cabin the set of protected liberties. The Constitution is explicit that enumerated rights are not the only ones “retained by the people,” but the document provides no guidance as to how the Court—or anyone else—should determine which unenumerated rights ought to be protected. The rise of the “history and tradition” test in Dobbs lends renewed urgency to this puzzle. Originalism risks ossification of the racist and sexist landscape that characterized 1791 and 1868 America. This Article offers an alternative limiting principle that can cabin the concept of liberty without resort to history, tradition, or general law. The principle, instead, is grounded in uncertainty. The Article first derives an uncertainty principle from John Stuart Mill and Harriet Taylor Mill’s On Liberty. While the Mills’ treatise is best known for its so-called “harm principle,” I argue—based on a close reading of the Mills’ writings—that “harm,” to the Mills, was merely an imperfect proxy for technocratic certainty as to net costs. In the Mills’ own words, their ideal society was one that “leaves the freedom and choice of individuals in all uncertain matters undisturbed, and only requires them to abstain from modes of conduct which universal experience has condemned.” The Article then uses the Mills’ uncertainty principle to describe modern constitutional liberty. The uncertainty principle, I argue, explains (1) the otherwise-troubling exclusion of “social and economic rights” from the American constitution, (2) the entrenchment of religious freedom and the freedom of speech in American constitutionalism, (3) the nearly-unanimous but hard-to-defend scholarly view that Lochner was wrongly decided while Griswold was rightly decided, and (4) why abortion and guns present hard cases. Ultimately, I argue, the uncertainty principle does a remarkably good job of describing many current constitutional doctrines and practices, and it provides a workable limiting principle to cabin the scope of protected liberty without regressing our rights to those protected in 1868 or 1791.