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Home > BYU Law Review Collections > BYU L. Rev. > Vol. 50 (2024) > Iss. 2 (2024)

 

BYU Law Review

Abstract

In a series of cases stretching over a century, the Court made a right’s roots a constitutive feature of its identity. Highlighting the analytic centrality of deep roots to the recognition of rights, Dobbs v. Jackson Women’s Health withdrew prior judicial recognition of a woman’s right to reproductive choice, arguing that such a right was not properly rooted in the American legal tradition. But what does it mean for a right to have deep roots? A surprising feature of American constitutionalism is that there is no single answer to the basic analytic question of what it means for a right to be deeply rooted.

As this Article explains, there are multiple ways rights have roots and can take root. The Court has variously found a right to have deep roots grounded in conceptual necessity, ancient history, developmental history, relational fit, or procedural status. This multiplicity has been a strength of American constitutionalism, offering multiple routes to recognize rights. But as this Article argues, if Dobbs is read to narrow the range of acceptable roots, it threatens the future of fundamental rights in ways that are inconsistent with a deep tradition in American constitutional practice. This Article argues instead for embracing a constitutional history and tradition that fosters the possibility of rights growth through a multiplicity of roots entanglements. In particular, this Article explores the importance of a history and tradition of recognizing rights that are rooted through their relation to other rights as an alternative to rights that are rooted in a long historical lineage.

In choosing to apply a narrow historical inquiry to identify roots, the Dobbs Court ignored the possibility of a right having conceptual or relational roots—alternatives deeply embedded in American constitutional practice. In so doing, Dobbs provides a case study for examining deeply rooted analysis as a method of fundamental rights inquiry. The opinion also demonstrates the pitfalls in adopting a narrow historical analysis, not only for the internal validity of the opinion’s reasoning, but also for the longterm future of fundamental rights. The Court claimed that by adopting a narrow fundamental rights methodology it would avoid the problem of substituting its values for those properly found in the Constitution. Contrary to these aspirations to value–neutrality, this Article demonstrates that the Court’s justification for overturning Roe and Casey depends on normative choices that selected (1) a particularly narrow version of a historical inquiry into the right’s roots; (2) a narrow framing of the right itself; (3) an emphasis on the claimed moral distinctiveness of a woman’s choices regarding her pregnancy; and (4) a reliance on an adverbial claim that prior analysis of the right’s roots were, in some unspecified manner, “egregiously wrong.” Each of these choices, this Article argues, are deeply flawed. The consequence of the Court’s value-laden analytical and framing choices, despite the majority’s claims to the contrary, is that the rationale of Dobbs threatens multiple other rights with roots previously recognized through the alternative methods that Dobbs ignores.

In contrast to Dobbs’ internally flawed attempt to narrow fundamental rights analysis, this Article examines the multiple meanings of deeply rooted to demonstrate the surprising organic constitutional implications of taking deeply rooted rights analysis seriously. By so doing, it lays the groundwork both for defending other rights susceptible to uprooting under Dobbs’ logic and for protecting the jurisprudential aspirations reflected in what Justice Kennedy described for the Court in Lawrence v. Texas as “the components of liberty in its manifold possibilities,” through which “every generation can invoke its principles in their own search for greater freedom.” As this Article demonstrates, static constitutionalism strictly hidebound to the past of the kind Dobbs seems to endorse is inconsistent with this other deeply embedded constitutional history and tradition of organic rights growth. Or, framed in another way, because the constitutional method of Dobbs is inconsistent with the method exemplified by prior opinions, the future of fundamental rights rests on recognizing the multiplicity of ways that rights can be deeply rooted in American constitutionalism.

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© 2024 Brigham Young University Law Review

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