Reimagining Substantive Due Process Liberty Interests as Privileges or Immunities of Citizenship

Abstract

This article engages with Justice Thomas’s proposal to reimagine select modern substantive due process (SDP) liberty interests as privileges or immunities of citizenship. It is well known that the branch of SDP theory that allows a court to declare uncodified, unenumerated fundamental rights within the Fourteenth Amendment’s Due Process Clause has been controversial. The conservative bench’s stripping of federally-protected abortion choice in Dobbs v. Jackson Women’s Health Organization marked the first pruning of a recognized SDP liberty interest since the liberal bench overturned Lochner v. New York in 1937. It also called into question whether this iteration of the U.S. Supreme Court will continue to honor other established SDP rights. Although Justice Thomas’s Dobbs concurrence declared that he would support overturning the Griswold-line of SDP privacy cases, he also offered a possible alternative future wherein some of those liberty interests might be reimagined as privileges or immunities of citizenship. This proposal merits discussion in at least two respects: first, to advance the basic understanding of the Privileges and/or Immunities Clauses themselves; and second, for the opportunity to establish a firmer foundation for certain unenumerated rights. This article thus engages with previous scholarship and jurisprudence surrounding these three clauses while adding a new analysis: namely, an initial thought experiment addressing the specific issue of whether it is plausible to reimagine any SDP liberty interests as privileges or immunities of citizenship and, if so, which rights would be encompassed.