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Publication Date

4-3-2026

Document Type

Article

Abstract

As a guide to understanding—and applying—the doctrine of substantive due process under the Fourteenth Amendment, Obergefell v. Hodges seems to have enjoyed a relatively short reign. Less than ten years after the Supreme Court of the United States held that individuals enjoy a fundamental right under the Fourteenth Amendment to marry a person of the same sex, the Court in Dobbs v. Jackson Women’s Health Organization turned to a different approach to the task of identifying and enforcing unenumerated constitutional rights. Dobbs, like Obergefell, is not without its problems: where the substantive due process analysis articulated in Obergefell lacks rigor, the analysis in Dobbs lacks sufficient attention to context. Obergefell may glance too lightly at history and tradition, but Dobbs accords them a weight they cannot bear.

There is another way to think about unenumerated constitutional rights—more than one, in fact. Alternative approaches lie within the reach of state constitutional law. They are illustrated in a post-Dobbs case from the Massachusetts Supreme Judicial Court (the “SJC”), interpreting the Declaration of Rights—the Commonwealth’s Bill of  Rights-equivalent. The decision in Kligler v. Attorney General argues for thinking differently about unenumerated constitutional rights, as well as the judiciary’s relationship to constitutions and constitutional interpretation. The framework proposed in Kligler recognizes that there are circumstances in which the judicial recognition of unenumerated rights as fundamental is appropriate while, at the same time, it respects the limits of the judiciary’s role in a constitutional democracy.

This Article proceeds, first, to unpack the majority’s approach in Obergefell to substantive due process. I turn next to Dobbs and the doctrinal analysis that the Supreme Court applied in the decision that overturned Roe v. Wade and Planned Parenthood v. Casey. Finally, I consider the recent attention the SJC in Kligler devoted to the development of a comprehensive substantive due process analysis that seeks both to cabin judicial discretion (which the Obergefell framework fails effectively to do) and appreciate the importance of creating an avenue for doctrinal evolution in constitutional law (which the Dobbs framework fails effectively to do). Kligler presents an alternative to the current federal substantive due process analysis—one rooted in a pluralist approach that considers history, precedent, ethical principles, and the practical consequences of recognizing unenumerated interests as fundamental. This framework provides both the analytical guardrails missing from Obergefell and the analytical flexibility missing from Dobbs.

My aim throughout this Article is to examine the complexity of substantive due process problems from the perspective of those lawyers who initially will confront arguments about the metes and bounds of substantive due process and, especially, trial court judges, both state and federal. It is the judges on these courts, and not the relatively well-resourced justices of the Supreme Court, who must in the first instance answer questions about the existence and reach of unenumerated constitutional rights. Respecting the limits of their role, most of these judges will turn—like the advocates appearing before them—to the guidance provided them by the Supreme Court and their state’s highest court and attempt, as best they can, to wring meaning from the decisions of the highest court in the land (and its state counterparts).

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