How is a right born? Many of the rights that Americans take for granted are not protected by law and are not mentioned in the Constitution. Instead, they have been interpreted in our legal tradition by Supreme Court decisions.
Many of these so-called unwritten rights are, through some quirk of judicial history, recognized by a legal doctrine called substantive due process. They protect interracial and same-sex marriages, teaching a foreign language, birth control, an extended family’s decision to share a home, and more. Until June, abortion was one of those rights. But with Dobbs v. Jackson Women’s Health Organization, the Supreme Court removed abortion from this list. And in his concurring opinion, Justice Clarence Thomas renewed an old argument when he suggested that everything the rights contained in a substantive due process need to be reconsidered.
The Dobbs The majority insisted their decision did not challenge other unwritten rights, and legal experts say Thomas’ radical vision is unlikely to come to fruition. But the decision nonetheless inspired panic among groups of Americans who had found little other protection under federal law. And it signaled a narrowing of new rights the court may consider protecting in the future.
In this special issue, the Washington Post Magazine has sought to make human an otherwise complex area of law. In an introductory essay, New York University law professor Kenji Yoshino—who advised us on this project—explains how the legal framework for substantive due process came about and its possible future after. Dobbs. The stories that follow illustrate the impact on individuals, families, and communities of key unwritten rights that the Supreme Court has, over the past century, recognized in substantive due process.
Of course, liberals and conservatives disagree on how the court should use this power, whether these rights are best left to legislation, and even whether some of them should exist. But whatever your point of view on these questions, one thing is undeniable: These unwritten rights shape how Americans go about their daily lives.
—Steven Johnson and Whitney Joiner, co-editors, The Unwritten Rights Issue
—Richard Just, Editor, The Washington Post Magazine