Most recently, the Court declined to recognize a right of the terminally ill to have the assistance of a physician in ending intractable suffering by hastening death. Aware that decisions recognizing unenumerated rights are particularly vulnerable to the charge that they reflect mere personal predilection rather than legal principle, judges tend to resist claims that rights not enumerated in the Constitution or previously acknowledged by the Supreme Court should be accorded protected status under the Due Process Clause. Quite aware of the linguistic awkwardness of what they are doing, most judges are willing to read the Due Process Clause of the Fourteenth Amendment as protecting the substantive rights listed in the Bill of Rights, such as speech and religion. But the lawyer who argues that the Due Process Clause protects some new unenumerated right will get a cool reception from the courts. With respect to unlisted rights, substantive due process seems doubly divorced from the constitutional text.
This is a sad and unnecessary state of affairs, according to Charles L. Black, Jr., Sterling Professor Emeritus at Yale Law School and adjunct professor of law at Columbia Law School. Deservedly one of the most respected US constitutional scholars, Professor Black begins his latest book, A New Birth of Freedom, with the blunt charge that “the foundations of American human-rights law are in bad shape.” Black observes that the particular rights listed in the Bill of Rights “are very plainly insufficient to found a system [of human rights that is] broad and comprehensive enough for a really free people to walk around in.” He then complains that the doctrine of substantive due process, “a desperate answer to a desperate need,” “has been inflated into a patched and leaky tire on which precariously rides the load of some substantive human rights not named in the Constitution.” In his book, Black “attempts the construction of a better system of reason for the grounding of constitutional human rights in this country.”
Black’s case for a better system rests on three national “commitments”: (1) the opening paragraphs of the Declaration of Independence (1776); (2) the Ninth Amendment (1791), which holds that the Constitution’s enumeration of certain rights shall not be construed to deny or disparage other rights retained by the people; and (3) the Fourteenth Amendment (1868), specifically its Citizenship Clause, defining state and national citizenship, and its Privileges or Immunities Clauses saying, as we have noted, that no state shall make or enforce laws that abridge the “privileges or immunities” of US citizens. Black’s “keystone thesis” is that, based on these three sources, we may use standard forms of legal reasoning to arrive at “an open-ended and open-textured series of human rights.”