Abstract

This Note argues that the US Constitution mandates that the fundamental rights Lawrence and Obergefell recognize not only should not but cannot be overruled because they are rooted in the Nation’s history and tradition. Such rights find support from the principles of Enlightenment philosopher and guiding figure in the Nation’s governmental ideals, John Locke. Through this connection, the rights Lawrence and Obergefell recognize are properly established in the Nation’s history and tradition and thus deserve enduring constitutional protection. Part I of this Note provides a brief background on substantive due process, analyzes and critiques how Justice Alito approaches substantive due process cases, asserts a living constitutionalist interpretation, and outlines John Locke’s philosophical principles. In Part II, this Note examines Lockean principles and their connection to the Framers of the Constitution. Part III discusses how the Court should apply the Nation’s history and tradition test to appropriately honor the intentions of the Founders of the United States and Framers of the Constitution. In doing so, this part argues that the same-sex rights recognized in Lawrence and Obergefell are rooted in the Nation’s history and tradition. This part also examines how the Court could apply the Nation’s history and tradition test to other rights, such as access to Assisted Reproductive Technologies (ART), to illustrate the broader relevance of this analysis. Part IV addresses potential concerns regarding this Note’s implementation of the Nation’s history and tradition test.

Keywords

Delaney Miller, John Locke, Substantive Due Process, History and Tradition, Samuel Alito, Fundamental Rights, Fourteenth Amendment