AP U.S. Government and Politics 3.9: Amendments: Due Process and the Right to Privacy

An enumerated right is expressly listed in constitutional text. An unenumerated right is not expressly named as a separate right but may still receive constitutional protection. Privacy is a central example. Judges and scholars have reasoned that express guarantees imply protected private choices or relationships. The Ninth Amendment also warns that listing certain rights must not be read to deny others retained by the people.

These arguments support the existence of rights beyond a literal list, but do not by themselves settle which claimed right qualifies or how far it extends. A court must identify a constitutional basis and a method for interpreting it. Distinguish the proposition that additional rights exist from a claim that every personal preference is constitutionally protected. Bill of Rights, Ninth Amendment. The disagreement is often about interpreting the Constitution's protections, not about whether the word privacy appears in it. A careful description separates the text, the inference drawn from it, and the particular activity at issue.

Procedural due process asks whether government uses fair, nonarbitrary methods when depriving a person of life, liberty, or property. Substantive due process asks whether the law or action itself impermissibly infringes a constitutionally protected liberty. Giving a person a hearing cannot automatically make every governmental restriction valid. Conversely, an objection to unfair notice does not necessarily establish a substantive right to engage in the regulated activity.

For example, imagine a fictional law restricting a private family decision. A challenge to the absence of a hearing raises a procedural issue. A claim that the government cannot constitutionally impose that restriction, even after a flawless hearing, raises a substantive issue. Courts have used substantive due process in examining alleged arbitrary infringements of individual rights. The approach remains debated: disagreement can concern the existence of the right, the constitutional text supporting it, and the permissible governmental restriction. Describe those separate questions instead of saying due process simply means that government must always get the same outcome.

An unenumerated right is one not expressly listed as a separate constitutional guarantee. Arguments based on implied guarantees or the Ninth Amendment support examining such rights; they do not automatically protect every private preference.

Griswold v. Connecticut (1965) invalidated a state prohibition on married couples' use of contraceptives. It protected marital privacy. The majority described zones of privacy implied by specific guarantees in the Bill of Rights; separate opinions more directly emphasized due process or the Ninth Amendment. The lesson's substantive-due-process framework connects these privacy arguments, but do not attribute every justice's rationale to the majority. Griswold, majority opinion, pages 484-486.

Roe v. Wade (1973) extended constitutional privacy protection to abortion. Dobbs v. Jackson Women's Health Organization (2022) overruled Roe and Casey, holding that the Constitution does not confer a right to abortion and returning regulatory authority to the people and their elected representatives. The majority reasoned that the claimed abortion right was neither textually specified nor deeply rooted in national history and tradition. It distinguished abortion from other privacy precedents and stated that its decision concerned abortion. Do not describe Roe as current controlling law or infer that Dobbs itself repealed every privacy protection. Dobbs, majority opinion, parts II and VI. This account describes the holdings, not a preferred policy position.