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The Legitimacy of Fundamental Rightsasserted Using Substantive Due Process: Privacy, Abortion, Sodomy, and Marriage Jamie Kainalu Nakoa University of Lynchburg

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The Legitimacy of Fundamental Rightsasserted Using Substantive Due Process: Privacy, Abortion, Sodomy, and Marriage Jamie Kainalu Nakoa University of Lynchburg University of Lynchburg Digital Showcase @ University of Lynchburg Undergraduate Theses and Capstone Projects Spring 3-2015 The Legitimacy of Fundamental RightsAsserted Using Substantive Due Process: Privacy, Abortion, Sodomy, and Marriage Jamie Kainalu Nakoa University of Lynchburg Follow this and additional works at: https://digitalshowcase.lynchburg.edu/utcp Part of the Political Science Commons Recommended Citation Nakoa, Jamie Kainalu, "The Legitimacy of Fundamental RightsAsserted Using Substantive Due Process: Privacy, Abortion, Sodomy, and Marriage" (2015). Undergraduate Theses and Capstone Projects. 121. https://digitalshowcase.lynchburg.edu/utcp/121 This Thesis is brought to you for free and open access by Digital Showcase @ University of Lynchburg. It has been accepted for inclusion in Undergraduate Theses and Capstone Projects by an authorized administrator of Digital Showcase @ University of Lynchburg. For more information, please contact [email protected]. The Legitimacy of Fundamental RightsAsserted Using Substantive Due Process: Privacy, Abortion, Sodomy, and Marriage Jamie Kainalu Nakoa Submitted in partial fulfillment of the graduation requirements for Honors in Political Science Political Science Department School of Humanities and Social Sciences Lynchburg College March, 2015 Dr. Lorna Dawson Dr. Timothy Meinke Dr. Katherine Gray Abstract The aim of my research was to determine, through an original intent approach to the United States Constitution, whether the asserted “fundamental” rights associated with the Due Process and Equal Protection Clauses of the Fourteenth Amendment were reflective of the Framers’ intentions for the rights protected by the Ninth Amendment, or if the Supreme Court has been illegitimately engaging in substantive due process. Through a case study using qualitative document analysis on the right to privacy, the right to abortion, the right to sodomy, and the right to marry, I concluded that there are no rights protected by the Ninth Amendment because it was intended to be a rule of construction for the Constitution and Bill of Rights. Additionally, when subjected to a legitimacy test, the rights to privacy, abortion, and sodomy were all illegitimately asserted using substantive due process. Only the right to marry was legitimately asserted using substantive due process. Furthermore, the analysis resulted in the serious consideration of a living Constitution approach in order to afford the Court more legitimacy. n Table of Contents Abstract............................................................................................................................................ii Table of Contents........................................................................................................................... iii Introduction...................................................................................................................................1-2 Research Question...............................................................................................................2 Literature Review..........................................................................................................................2-4 The Ninth Amendment........................................................................................................2 Asserted Fundamental Rights..............................................................................................3 The Fourteenth Amendment................................................................................................3 Research Design............................................................................................................................4-6 Hypothesis............................................................................................................................4 Data and Analysis.......................................................................................................................6-52 The Framers’ Intentions for the Ninth Amendment...................................................... 6-13 Anti-Federalists........................................................................................................6 Federalists................................................................................................................9 Rights Retained by the People...............................................................................12 Jurisprudence Analysis.................................................................................................13-52 Table 1: Legitimacy of Substantive Due Process Rights.......................................14 The Right to Privacy.........................................................................................15-21 Olmstead v. United States (1928)..............................................................15 Griswold v. Connecticut (1965).................................................................17 The Right to Abortion...................................................................................... 21-33 Eisenstadt v. Baird (1972)........................................................................ 21 Roev. Wade (1973)................................................................................... 25 Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)...... 29 The Right to Sodomy....................................................................................... 33-41 Bowers v. Hardwick (1986).......................................................................33 Lawrence v. Texas (2003)..........................................................................37 The Right to Marry.......................................................................................... 41-52 Loving v. Virginia (1967)..........................................................................41 Perry v. Schwarzenegger (2010).............................................................. 44 United States v. Windsor (2013)............................................................... 46 Conclusion.....................................................................................................................................52 Appendix A: Rights Retained by the People.................................................................................54 References......................................................................................................................................56 iii Introduction The United States Supreme Court has identified a multitude of unenumerated rights as “fundamental.” These rights include, but are certainly not limited to, the right to privacy (See Griswold v. Connecticut 381 U.S. 479 [1965]), the right to abortion (See Roe v. Wade 410 U.S. 113 [1973]), the right to rear one’s own children (See Wisconsin v. Yoder 406 U.S. 205 [1972]; see also Pierce v. Society of Sisters etc. 268 U.S. 510 [1925]), the right to travel (See Shapiro v. Thompson 394 U.S. 618 [1969]) and the right to same sex sexual activity (See Lawrence v. Texas 539 U.S. 558 [2003]). Though these “fundamental” rights are nowhere to be found explicitly in the United States’ Constitution, the Framers included the Ninth Amendment which alludes to other rights that are “retained by the people.” Similarly, the Fourteenth Amendment refers to indistinct “privileges or immunities of citizens of the United States.” Since the Supreme Court stripped the Fourteenth Amendment of all of its substance by gutting the privileges and immunities clause in the Slaughter-House Cases, 83 U.S. 36 (1873), the Court has expanded the protection of substantive rights under the Fourteenth Amendment using the Due Process and Equal Protection Clauses, which were originally intended to protect procedural rights. This process, known as substantive due process, was applied to the economic realm (See Lochner v. New York, 198 U.S. 45 [1905]) until it was repudiated and deemed illegitimate in West Coast Hotel Company v. Parrish, 300 U.S. 379 (1937), when Chief Justice Hughes asserted that the “legislature is entitled to its judgment” (Rossum and Tarr, 157). One year later, in footnote 4 of United States v. Carolene Products Company 304 U.S. 144 (1938), Justice Stone outlined what would become the justification for applying Due Process to civil liberties despite its poor reputation in what is referred to as the “Lochner era.” Vague references to unenumerated rights combined with the questionable Due Process jurisprudence prompted me 1 to question whether the asserted “fundamental” rights that the Supreme Court of the United States has identified through the Due Process and Equal Protection Clauses of the Fourteenth Amendment are natural rights that the Framers intended to be protected by the Ninth Amendment, or has the Supreme Court been illegitimately engaging in substantive due process? Literature Review The text of the Ninth Amendment says “The enumeration of certain rights, shall not be construed to deny or disparage others retained by the people” (US Const, amend. IX). There is an incredible amount of debate over what this one amendment means and how it should be interpreted. Some scholars interpret the Ninth Amendment as a rule of construction that has no substantive content at all (Pollock 1983; Rapaczynski 1988). Kurt Lash interprets the Ninth Amendment as having substantive content, but contends that this content is only judicially enforceable at the state and local level (2004). Calvin Massey
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