Lawrence Friedman (New England Law | Boston) has posted The Varieties of Substantive Due Process Experience: Obergefell, Dobbs and a State Constitutional Alternative on SSRN. Here is the abstract:
As a guide to understanding—and applying—the doctrine of substantive due process under the Fourteenth Amendment, Obergefell v. Hodges seems to have enjoyed a relatively short reign. Less than ten years after the Supreme Court of the United States held that individuals enjoy a fundamental right under the Fourteenth Amendment to marry a person of the same sex, the Court in Dobbs v. Jackson Women’s Health Organization turned to a different approach to the task of identifying and enforcing unenumerated constitutional rights. Dobbs, like Obergefell, is not without its problems: where the substantive due process analysis articulated in Obergefell lacks rigor, the analysis in Dobbs lacks sufficient attention to context. Obergefell may glance too lightly at history and tradition, but Dobbs accords them a weight they cannot bear. This essay discusses another way to think about unenumerated constitutional rights—more than one, in fact. Alternative approaches lie within the reach of state constitutional law. They are illustrated in a post-Dobbs case from the Massachusetts Supreme Judicial Court (the “SJC”), interpreting the Commonwealth’s equivalent to the Bill of Rights. The essay endorses the value of thinking differently about unenumerated constitutional rights, as well as the judiciary’s relationship to constitutions and constitutional interpretation. The SJC’s interpretive framework recognizes that there are circumstances in which the judicial recognition of unenumerated rights as fundamental is appropriate while it limns analytical guardrails that respect the limits of the judiciary’s role in a constitutional democracy.
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