Unenumerated Rights

Whether you're just starting law school or need some extra inspiration to help you continue, this conversation is here to help. We're joined by Lindsay Kendrick, Dean of Students and the Assistant Dean for Diversity and Inclusion at NYU School of Law, and Susie Spies Roth, Associate Dean, Dean of Students, and Clinical Assistant Professor of Law at Northwestern's Pritzker School of Law.

Welcome to season 2 of Irrational Basis Review! We're kicking things off with an overview of Article II of the Constitution and the President's power to appoint officers and remove them.

When first adopted, the Bill of Rights only applied to the federal government -- not state governments. But in the early twentieth century, the Supreme Court began to rule that the rights enumerated in the Bill of Rights are part of the liberty that is protected by the due process clause in the Fourteenth Amendment. Here's a quick and dirty dive into the incorporation doctrine.

Join us for a deep dive into the Fourteenth Amendment's relationship to sex and gender. Even though Abigail Adams implored her husband John to "remember the ladies" when helping to draft the Constitution, the original text doesn't mention women, much less gender. When the Fourteenth Amendment was adopted in 1868, guaranteeing all American citizens equal protection under the law, it became a tool for women and minorities to fight discrimination.

In Korematsu v. United States, the Supreme Court said that laws that distinguish between people on the basis of race are subject to strict scrutiny. And it purportedly applied that standard in Brown v. Board of Education, the case holding that racial segregation in schools was unconstitutional. In the past couple of decades, however, a new question has arisen—should strict scrutiny apply to laws that distinguish on the basis of race in order to help minorities?

What happens when rational basis gets bitten by a radioactive animus spider?  It becomes super-powered and invalidates a range of discriminatory conduct.  Where did this toothier form of rational basis come from?  And which Justice made it his life’s work to wring every bit of goodness out of the whole concept of animus?  

Start your study of individual rights on the right foot(note) with this discussion of Con Law’s most famous footnote and the tiers of scrutiny that it spawned.

A quick, handy guide to the state action doctrine.

We do a deep dive into unenumerated rights-- where do they come from? Why do they get such a bad rap?  How do we know when an unenumerated right is entitled to the most robust constitutional protections?

A deeper dive of Congress’s power to enact legislation pursuant to the Fourteenth Amendment.