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Corey Brettschneider
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Mary Dudziak
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Joey Fishkin
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Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
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Stephen Griffin
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Jonathan Hafetz
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Jeremy Kessler
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Andrew Koppelman
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Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
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Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
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Linda McClain
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John Mikhail
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Frank Pasquale
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Nate Persily
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Michael Stokes Paulsen
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Deborah Pearlstein
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Rick Pildes
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David Pozen
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Richard Primus
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K. Sabeel Rahman
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Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu

David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
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Mark Tushnet
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Adam Winkler
winkler at ucla.edu

Compendium of posts on Hobby Lobby and related cases

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

Enumerating a Post-Dobbs Pathway

Enumerating a Post-Dobbs Pathway

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Michael C. Dorf

          For the foreseeable future, constitutional lawyers seeking progressive results from the federal courts will need to practice what I have called “ideological jujitsu—turning opponents’ strengths against them.” Nowhere is that more clear than in seeking to develop arguments that aim to restore rights to reproductive freedom and sex equality. This short essay articulates the benefits and potential pitfalls of one particular jujitsu maneuver: reliance on a sharp distinction recent cases draw between enumerated and unenumerated rights.

          In New York State Rifle & Pistol Assn., Inc. v. Bruen, a 6-3 Supreme Court ruled in favor of challengers to New York’s firearms permitting regime because the state had failed to demonstrate that the challenged law was consistent with the history and tradition of firearms regulation at the Founding or during Reconstruction (or during other ostensibly relevant periods). Literally the very next day, in Dobbs v. Jackson Women’s Health Org., the same six Justices ruled against challengers to Mississippi’s ban on abortions after fifteen weeks’ gestation, on the ground (articulated in the majority opinion that spoke for five Justices) that the challengers had failed to demonstrate a history and tradition protecting a right to abortion at the Founding or during Reconstruction (or during other ostensibly relevant periods).

          To a casual or cynical observer, the juxtaposition of the placement of the burden of persuasion in Bruen and Dobbs may look hypocritical and result-oriented: heads I win; tails you lose. And indeed, that perspective may well be accurate. But it is nonetheless possible to articulate a reason of principle—and not mere ideology—why proponents of gun rights do not bear the burden of persuasion but proponents of reproductive rights do bear such a burden.

The plaintiffs in Bruen relied on an enumerated right, so that once they established a prima facie exercise of that right, the issue in the case was whether the state could justify infringing the right. By contrast, the plaintiffs in Dobbs relied on an unenumerated right. Once an unenumerated right is established, the state has the burden of justifying its infringement. But to establish the right in the first place, those claiming it bear the burden of showing it to be deeply rooted in history and tradition. And Justice Alito’s opinion for the Dobbs Court contended that precedents establishing the abortion right were not merely wrong, but “egregiously wrong.”

          We have very good reason to reject the enumerated/unenumerated dichotomy. For one thing, it directly contradicts the construction rule expressly stated in the Ninth Amendment. For another, it ignores the fact that even in cases involving enumerated rights, the constitutional text almost never expressly addresses the precise question at issue. Are campaign expenditures “speech” within the meaning of the First Amendment? Does the use of thermal imaging technology constitute a “search” within the meaning of the Fourth? The specific provisions of the Bill of Rights are not specific enough to mark a genuine distinction between enumerated and unenumerated rights.

However, the point of ideological jujitsu (as practiced by liberals like me) is to work within the conservatives’ premises and turn them towards liberal ends. Accordingly, I propose that to evade the history-and-tradition test, indeed, to turn it to our advantage, we could find a way to shoehorn putative rights like abortion or gender-affirming care into specific provisions of the Bill of Rights.

Free exercise of religion—as the seemingly most favored right of the Roberts Court—is a good place to start. Post-Dobbs, some Jewish groups have argued that very restrictive abortion bans violate their members’ free exercise rights because, under certain circumstances, Judaism requires abortion. State-level versions of the Religious Freedom Restoration Act (RFRA) offer another potential pathway to make that argument, as does the federal RFRA with respect to federal abortion restrictions. Indeed, case law construing the federal and state RFRAs often allows that a plaintiff states a claim even if religion is only a motive for their conduct. Thus, it is not necessary to show that Judaism (or some other religion) literally requires abortion in any circumstance; even if Judaism (or some other religion) merely permits abortion but is a source of values for a person choosing abortion, that may suffice.

The Fourth Amendment provides another potential avenue for grounding some aspects of reproductive and sexual autonomy. Conservatives have long mocked Justice Douglas’s march through the Bill of Rights in Griswold v. Connecticut for its invocation of penumbras and emanations, but the opinion’s discussion of the means necessary to enforce a ban on contraceptive use does resonate with Fourth Amendment values. A police search of what Justice Douglas called “the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives” certainly seems, in the language of the Fourth Amendment, “unreasonable.”

          To be sure, on issues with substantial culture-war salience, judges’ first-order values are likely to dominate implications from precedent or even any jurisprudential commitments implied by the opinions those very judges have previously authored or joined. That is why I am highly skeptical that we can make any headway with the Supreme Court by relying on the Equal Rights Amendment (ERA) as the 28th Amendment. Even assuming the Justices recognize the ERA’s ratification as valid, it is easy to imagine them invoking the dubious logic of Geduldig v. Aiello to hold that under the ERA, as under equal protection, laws targeting pregnancy do not count as discriminating on the basis of sex.

          However, we need to start somewhere. As my reference to state RFRAs suggests, the Supreme Court is not the only venue in which to press arguments for reproductive and sexual freedom. Lower federal courts are another possible site, as are state legislatures and, of course public opinion. And we oughtn’t give up on the Supreme Court. Occasionally, even conservative Justices have liberal impulses. When that happens, we need to offer them conservative tools—such as textualist formalism in Bostock v. Clayton County—to get them where we want them to go. The distinction between enumerated and unenumerated rights has the potential to serve as another such tool. 

Michael C. Dorf is Robert S. Stevens Professor of Law at Cornell Law School. You can reach him by e-mail at [email protected].

Books by Balkinization Bloggers

Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024)

David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024)

Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024)

Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023)

Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)

Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)

Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)

Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)

Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).

Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).

Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)

Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)

Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)

Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)

Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)

Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)

Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)

Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)

Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)

Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)

Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)

Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)

Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)

Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)

Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)

Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)

Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)

Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution

Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)

Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)

John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)

Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)

Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)

Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)

James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)

Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues

Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)

Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)

Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)

Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)

Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)

Jack M. Balkin, Living Originalism (Harvard University Press, 2011)

Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)

Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)

Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)

Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)

Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)

Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)

Balkinization Symposium on The Decline and Fall of the American Republic

Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)

Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)

Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)

Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)

Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)

Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)

Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)

Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)

Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)

David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)

Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)

Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)

Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)

Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)

Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)

Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)

Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)

Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)

Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)

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