January Littlejohn v. School Board of Leon County Florida

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10385

____________________

JANUARY LITTLEJOHN,

JEFFREY LITTLEJOHN,

Plaintiffs-Appellants,

versus

SCHOOL BOARD OF LEON COUNTY, FLORIDA,

ROCKY HANNA,

Individually and in his official capacity as

Superintendent of Leon County Schools,

DR. KATHLEEN RODGERS

Individually and in her official capacity as

Former Assistant Superintendent Equity Officer

and Title IX Compliance Coordinator for Leon County Schools,

RACHEL THOMAS,

Individually and in official capacity as

Counselor at Deerlake Middle School,

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2 Opinion of the Court 23-10385

ROBIN OLIVERI,

Individually and in her official capacity as

Assistant Principal of Deerlake Middle School,

Defendants- Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 4:21-cv-00415-MW-MJF

____________________

Before ROSENBAUM, NEWSOM, and TJOFLAT, Circuit Judges.

ROSENBAUM, Circuit Judge:

Our system of government divides the government’s pow-

ers among three branches: the legislature, the executive, and the

judiciary. Each branch generally performs different types of ac-

tions.

This case requires us to determine whether Defendants-Ap-

pellees Leon County School Board and its employees’ actions,

which Plaintiffs-Appellants January and Jeffrey Littlejohn chal-

lenge, were legislative or executive. That distinction governs

which analytical framework we apply in a substantive-due-process

case like this one.

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23-10385 Opinion of the Court 3

The Littlejohns allege that the Board and its officials violated

their parental due-process rights when the officials met with and

permitted the Littlejohns’ thirteen-year-old child to express the

child’s gender identity at school. In compliance with the Board’s

guidelines at the time, school officials developed a gender-identity-

related “Student Support Plan” for and with the child without the

Littlejohns’ involvement and contrary to the Littlejohns’ wishes.

As we explain, these actions are executive, not legislative, in

nature. So we apply the substantive-due-process framework that

governs analysis of executive actions. That framework asks

whether the officials’ conduct “shocked the conscience.” Because

the school officials’ actions here do not satisfy that standard as a

matter of law, after careful consideration and with the benefit of

oral argument, we affirm the district court’s order dismissing the

Littlejohns’ claims.

I. BACKGROUND

A. Factual Background1

At the time relevant to this litigation, the Littlejohns’ child

was thirteen years old and attended Deerlake Middle School in Tal-

lahassee, Florida. The Littlejohns’ child was assigned female at

birth, but before the 2020–21 school year, asked to go by they/them

pronouns and a “male” name, J. The Littlejohns did not allow their

1 We recount the facts in the light most favorable to the Littlejohns. See Burban

v. City of Neptune Beach, 920 F.3d 1274, 1278 (11th Cir. 2019).

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4 Opinion of the Court 23-10385

child to use a different name or pronouns, though they permitted

the child to use “J.” as a “nickname” at school. Mrs. Littlejohn in-

formed the child’s teacher that a private therapist that the Lit-

tlejohns hired was seeing the child, and she asked the teacher not

to use a different name or pronouns for the child. But the child told

school counselor Rachel Thomas that the child wanted to use the

name J. and they/them pronouns.

The School Board maintains a Lesbian, Gay, Bisexual,

Transgender, Gender Nonconforming and Questioning Support

Guide (“Guide”). The School Board’s LGBTQ+ Equity Committee

developed the Guide, under the supervision of Superintendent

Rocky Hanna and Assistant Superintendent Dr. Kathleen Rodgers.

The Guide is “a tool for schools, students and their parents and le-

gal guardians to effectively navigate existing laws, regulations and

policies that support LGBTQ+ [Leon County School] students.”

At the time of the events underlying this litigation, the 2018

version of the Guide was in effect. The School Board released an

updated Guide in June 2022. But because the 2018 Guide governed

Defendants’ actions here, we consult the 2018 Guide in this appeal.

Among other resources, the 2018 Guide contained a Ques-

tion-and-Answer portion, which discussed parental-notification

procedures. It instructed staff not to notify parents if a student’s

behavior led staff to believe the student was LGBTQ+:

Q: A student has exhibited behavior in school leading admin-

istrators or teachers to believe the student is LGBTQ+.

Should the parents or legal guardians be notified?

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A: No. Outing a student, especially to parents, can be very

dangerous to the student[’]s health and well-being. Some

students are not able to be out at home because their parents

are unaccepting of LGBTQ+ people out. As many as 40%

of homeless youth are LGBTQ+, many of whom have been

rejected by their families for being LGBTQ+. Outing stu-

dents to their parents can literally make them homeless.

The Guide also included a template for a Transgender/Gen-

der Nonconforming Student Support Plan. That template con-

tained an intake checklist asking whether the child’s parents were

“aware” of their gender identity, whether the parents were “sup-

portive,” and whether the parents were to be notified.

After the Littlejohns’ child expressed a desire to socially tran-

sition at school, Thomas and other school staff met with the child

to develop a Student Support Plan. Because the child did not af-

firmatively request parental presence at that meeting, in accord

with the Guide, school officials did not notify the Littlejohns. And

the Student Support Plan stated that the Littlejohns were “aware,

but not supportive” of their child’s desire to use a preferred name

and pronouns.

When the Littlejohns learned about their child’s Student

Support Plan meeting and social transition at school, they con-

tacted school and district administrators. Thomas and Assistant

Principal Robin Oliveri called Mrs. Littlejohn, and Thomas told her

that the Littlejohns were not invited to their child’s Student Sup-

port Plan meeting because, “by law,” the child had to request

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parental attendance. And, Thomas stated, the child was “pro-

tected” under a non-discrimination law that did not require paren-

tal notification. Oliveri added that the school designed its protocol

of not including parents without the child’s approval to protect the

child’s safety.

The Littlejohns then repeatedly called and emailed Dr.

Rodgers. Eventually, Dr. Rodgers stated in an email to the Lit-

tlejohns, “We currently do not have any Florida specific law that

obligates us to inform the parents or says we cannot listen to the

student without their parent present.” 2

B. Procedural History

The Littlejohns sued the School Board, Hanna, Rodgers,

Thomas, and Oliveri, alleging that they violated the Littlejohns’

substantive-due-process and privacy rights under both federal and

state law. In their operative First Amended Complaint, the

2 After the Littlejohns filed suit, Florida enacted its “Parents’ Bill of Rights”

law. See Fla. Stat. § 1014.01 et seq (2021). That law provides that the State or

its entities cannot “infringe on the fundamental rights of a parent to direct the

upbringing, education, health care, and mental health of his or her minor child

without demonstrating that such action is reasonable and necessary to achieve

a compelling state interest and that such action is narrowly tailored and is not

otherwise served by a less restrictive means.” Id. § 1014.03. In June 2022, the

School Board approved a revised Guide “consistent with the pronouncements

in Florida’s Parents’ Bill of Rights” and related legislation. The 2022 Guide

provides, among other things, that “School personnel must not intentionally

withhold information from parents unless a reasonably prudent person would

believe that disclosure would result in abuse, abandonment, or neglect . . . .”

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Littlejohns asserted five causes of action: three under 42 U.S.C. §

1983 and the United States Constitution and two under the Florida

Constitution.3

As relevant here, the Littlejohns alleged that Hanna and Dr.

Rodgers violated their parental-due-process and familial-privacy

rights by preparing and authorizing the Guide. They also asserted

that Thomas violated their parental-due-process and familial-pri-

vacy rights by meeting with and developing a Student Support Plan

for their child without notifying them. As for Oliveri, the Lit-

tlejohns alleged that she violated their parental-due-process and fa-

milial-privacy rights by “concealing information” about the child’s

social transition at school. Finally, the Littlejohns contended that

the School Board violated their parental-due-process and familial-

privacy rights by authorizing and implementing the 2018 Guide, as

well as by authorizing their exclusion from their child’s Student

Support Plan meeting.

The Littlejohns sought both damages and prospective relief.

They sought a “declaration that Defendants violated [their] funda-

mental rights” by (1) permitting their child to “select[] a new ‘af-

firmed name and pronouns,’ without parental notification and con-

sent”; (2) prohibiting school staff from communicating with them

about their child’s “discordant gender identity”; and (3) instructing

school staff to “deceive” them by “using different names and

3 In their original complaint, the Littlejohns also asserted two causes of action

under Florida statutes, but they did not reallege them in their First Amended

Complaint.

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8 Opinion of the Court 23-10385

pronouns around parents than are used in school.” They also

sought nominal and compensatory damages against the Board and

against the individual Defendants in their individual capacities.

Defendants moved to dismiss. The district court granted the

motion without prejudice. First, the district court held that the re-

lease of the 2022 Guide mooted all claims for injunctive relief, as

those claims were based on the superseded 2018 Guide. Next, the

district court found that the individual Defendants were entitled to

qualified immunity on the damages claims. As for the damages

claims against the School Board, the district court determined that

the challenged actions—the failure to include the Littlejohns in the

Student Support Plan meeting and allowing the Littlejohns’ child

to socially transition at school—did not violate the Littlejohns’

rights under the “shock the conscience” test. And because the dis-

trict court concluded that the School Board’s actions did not “shock

the conscience,” it dismissed the claims. Finally, the district court

declined to exercise supplemental jurisdiction over the Florida con-

stitutional claims after it dismissed the federal claims.

The Littlejohns timely appealed. 4 On appeal, they do not

challenge the district court’s mootness determination on the 2018

Guide or its decision not to exercise supplemental jurisdiction over

the Florida-law claims. So we do not discuss those claims further.

4 On appeal, eleven organizations, along with a coalition of 21 states, filed

briefs as amici curiae in support of the Littlejohns and reversal.

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II. STANDARD OF REVIEW

We review a grant of a motion to dismiss for failure to state

a claim de novo, accepting the complaint’s allegations as true and

construing them in the light most favorable to the plaintiff. Burban

v. City of Neptune Beach, 920 F.3d 1274, 1278 (11th Cir. 2019).

III. DISCUSSION

To survive a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), a complaint must contain “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2). In

other words, a plaintiff must “plead[] factual content that allows the

court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

As we’ve noted, the Littlejohns assert that Defendants vio-

lated their substantive-due-process rights to “make decisions con-

cerning the care, custody, and control of their children” and to “di-

rect the medical and mental health decision-making for their chil-

dren,” as well as their right to familial privacy. Our substantive-

due-process precedent recognizes certain rights as “fundamental,”

meaning they are “objectively, deeply rooted in this Nation’s his-

tory and tradition, and implicit in the concept of ordered liberty,

such that neither liberty nor justice would exist if they were sacri-

ficed.” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)

(cleaned up). Because it makes no difference to the outcome here,

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we assume without deciding that the Littlejohns invoke “funda-

mental” rights. 5

On appeal, the Littlejohns challenge only the district court’s

dismissal of their claims seeking damages. Again, the Littlejohns

sought damages for Defendants’ alleged violations of their funda-

mental parental-due-process and familial-privacy rights. And they

based these claims on Defendants’ actions permitting their child to

socially transition at school without their involvement or authori-

zation, including Defendants’ creation of a Student Support Plan

for the child.

We conclude that the district court correctly dismissed those

claims. To explain why, we divide our discussion into three parts.

Section A explains the different analytical frameworks we apply in

substantive-due-process cases about executive and legislative ac-

tion, respectively. Section B shows that the Littlejohns challenge

executive, not legislative, action. As a result, the “shocks the con-

science” standard—not strict scrutiny—applies. And Section C

concludes that the Littlejohns have not alleged conduct that

5 Substantive-due-process jurisprudence requires a “a ‘careful description’ of

the asserted fundamental liberty interest.” Glucksberg, 521 U.S. at 721 (quoting

Reno v. Flores, 507 U.S. 292, 302 (1993)). The Supreme Court has recognized

parents’ “fundamental right . . . to make decisions concerning the care, cus-

tody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000)

(plurality opinion). Under the umbrella of that right, it has also recognized

parents’ “plenary authority to seek [medical] care for their children, subject to

a physician’s independent examination and medical judgment.” Parham v. J.R.,

442 U.S. 584, 604 (1979). We express no opinion about whether Defendants’

actions implicated the Littlejohns’ child’s medical or mental-health care.

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“shocks the conscience,” so the district court correctly dismissed

their claims.

A. We apply different analytical frameworks to assess ex-

ecutive and legislative actions that allegedly violated

substantive-due-process rights.

The Fourteenth Amendment’s Due Process Clause prohibits

a state or its officials from “depriv[ing] any person of life, liberty,

or property, without due process of law.” U.S. CONST. amend. XIV,

§ 1. Due process has both a procedural and substantive compo-

nent. See Glucksberg, 521 U.S. at 719–20. This case concerns the

latter: substantive due process.

To state a substantive-due-process claim under § 1983, a

plaintiff must allege “(1) a deprivation of a constitutionally pro-

tected interest, and (2) that the deprivation was the result of an

abuse of governmental power sufficient to raise an ordinary tort to

the stature of a constitutional violation.” Hoefling v. City of Miami,

811 F.3d 1271, 1282 (11th Cir. 2016) (citation and internal quotation

marks omitted).

To determine whether Defendants’ actions violated the Lit-

tlejohns’ rights, we must first identify whether Defendants’ chal-

lenged actions were “legislative” or “executive” in nature. That’s

so because our due-process precedent applies different evaluative

frameworks to “legislative” and “executive” actions. See McKinney

v. Pate, 20 F.3d 1550, 1557 n.9 (11th Cir. 1994) (en banc).

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“Executive” action violates a plaintiff’s substantive due-pro-

cess rights—even if the right involved is a fundamental one—if the

action “shocks the conscience.” See County of Sacramento v. Lewis,

523 U.S. 833, 846 (1998).

In contrast, we use different levels of scrutiny to determine

whether legislative action violates a plaintiff’s substantive due-pro-

cess rights. To identify the correct level of scrutiny, we “craft[] a

careful description of the asserted right” and ascertain whether it

is so “deeply rooted in this Nation’s history and tradition” as to be

fundamental. Waldman v. Conway, 871 F.3d 1283, 1292 (11th Cir.

2017) (quoting Glucksberg, 521 U.S. at 721). If legislative action im-

plicates a fundamental right, that action must survive strict scru-

tiny. See id. If it involves a right that is not fundamental, we subject

that action to rational-basis review. See FCC v. Beach Commc’ns, Inc.,

508 U.S. 307, 313 (1993).

The Littlejohns challenge this description of the governing

frameworks. They point to our language in McKinney and argue

that the “shocks the conscience” test does not apply to their funda-

mental-rights claim, no matter whether Defendants’ action was

“executive” or “legislative.” 6 And to be sure, we have characterized

the “shocks the conscience” standard as “[a]n alternate substantive

6 Defendants assert that the Littlejohns forfeited this claim by failing to raise it

in the district court. We need not assess that contention because, as we ex-

plain, the Littlejohns’ claim fails on the merits, in any case.

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due process test” used where the challenged action does not impli-

cate a fundamental right. McKinney, 20 F.3d at 1556 n.7.

But after we issued McKinney, the Supreme Court clarified in

Sacramento that the executive-action framework we’ve described

above governs all substantive-due-process claims involving execu-

tive action—even those involving fundamental rights. In Sacra-

mento, a high-speed police chase tragically resulted in the death of

a sixteen-year-old. See 523 U.S. at 836–37. The teen’s survivors

sued, claiming that the police officer violated their son’s “substan-

tive due process right to life” through their deliberate or reckless

indifference. Id. at 837.

But the Court disagreed. In reaching that conclusion, the

Court noted that “the touchstone of due process is protection of

the individual against arbitrary action of government,” even if “the

fault lies . . . in the exercise of power without any reasonable justi-

fication in the service of a legitimate governmental objective,” as it

does when a substantive-due-process violation occurs. Id. at 845–

46 (cleaned up). Then, the Court distinguished between substan-

tive-due-process violations that the government commits in its leg-

islative versus its executive capacities. Id. at 846. The Court ex-

plained that “criteria to identify what is fatally arbitrary differ de-

pending on whether it is legislation or a specific act of a govern-

mental officer that is at issue.” Id. That’s because challenges to

“executive action . . . raise a particular need to preserve the consti-

tutional proportions of constitutional claims, lest the Constitution

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be demoted to . . . a font of tort law.” Id. at 847 n.8; see also Paul v.

Davis, 424 U.S. 693, 701 (1976).

When “executive action” is involved, “only the most egre-

gious official conduct can be said to be ‘arbitrary in the constitu-

tional sense.’” Sacramento, 523 U.S. at 846 (quoting Collins v. City of

Harker Heights, 503 U.S. 115, 129 (1992)). And to satisfy that stand-

ard, the Court continued, “the cognizable level of executive abuse

of power” is “that which shocks the conscience.” Id.

So in Sacramento, the Court considered whether the officer’s

deprivation of the teen’s life was “an abuse of executive power so

clearly unjustified by any legitimate objective of law enforcement

as to be barred by the Fourteenth Amendment.” Id. at 840. The

Court determined it wasn’t. Because the death occurred during a

high-speed chase, and officers engaged in that kind of activity must

make split-second decisions, the Court found that the officer’s con-

duct there did not “shock the conscience.” See id. at 855.

Importantly for our purposes, the Court clarified that the

“conscience shocking” inquiry is a “threshold question” that neces-

sarily precedes any fundamental-rights analysis. See id. at 847 n.8.

In other words, even if a plaintiff alleges that executive action vio-

lated a fundamental right, the plaintiff must first show that the ac-

tion “shock[ed] the contemporary conscience.” See id. (character-

izing “egregious behavior” as a “necessary condition” for a

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substantive-due-process violation).7 To the extent that any conflict

exists between Sacramento and our later cases (e.g., Waldman), Sac-

ramento necessarily controls. Cf. United States v. Dubois, 94 F.4th

1284, 1301 (11th Cir. 2024) (“when prior . . . precedents conflict, the

earlier case controls” (quoting MacPhee v. MiMedx Grp., 73 F.4th

1220, 1250 (11th Cir. 2023))).

Our precedent illustrates the Sacramento framework in prac-

tice. Take Maddox v. Stephens, 727 F.3d 1109 (11th Cir. 2013). Mad-

dox concerned the same fundamental parental right that the Lit-

tlejohns assert. In Maddox, the plaintiff alleged that a state social

7 The Dissent asserts that Sacramento does not require us to apply the “shocks

the conscience” standard to state actions that burden a right “implicit in the

concept of ordered liberty,” even if those state actions are executive in charac-

ter. Diss. at 26. In support, it highlights United States v. Salerno, 481 U.S. 739,

746 (1987), as an example of the Court explaining that a plaintiff can state a

substantive-due-process claim by alleging conduct that “shocks the con-

science” or interferes with a right “implicit in the concept of ordered liberty.”

Diss. at 26. We respectfully disagree with that reading of Salerno and Sacra-

mento. We do not parse “the language of an opinion . . . as though we are

dealing with language of a statute.” Reiter v. Sonotone Corp., 442 U.S. 330, 341

(1979). So we cannot take from Salerno’s use of “or” that the “shocks the con-

science” standard does not apply to the Littlejohns’ claim. Rather, we must

assess the body of binding precedent as a whole, including the guidance Sacra-

mento offers. And to the extent that body of binding precedent is conflicting,

we think our best path forward is, as Judge Newsom points out in his concur-

ring opinion, to follow the clearest rule statement, see Newsom Op. at 13–15—

the one that Sacramento provides and that our binding precedent follows. So

precedent directs us to apply the “shocks the conscience” standard to all exec-

utive action, even if the executive action burdens a right “implicit in the con-

cept of ordered liberty” in the process.

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worker violated her parental substantive-due-process rights by re-

moving her child from her custody and placing the child with the

child’s grandmother. Id. at 1113. We found that the plaintiff had

“undisputed[ly]” pled a violation of her substantive-due-process

rights. Id. at 1119. But we said that such a violation was not

enough—rather, only conduct that is “arbitrary or conscience

shocking in a constitutional sense” could trigger a substantive-due-

process violation. Id. (quoting Waddell v. Hendry Cnty. Sheriff’s Off.,

329 F.3d 1300, 1305 (11th Cir. 2003)). So we reversed the district

court’s denial of summary judgment for the social-worker defend-

ant. Id. at 1127.

As Maddox shows, the Littlejohns are mistaken in their con-

tention that the “shocks the conscience” standard does not apply

when we assess claims that the government’s executive actions vi-

olated (even fundamental) substantive-due-process rights.

Nor, as the Dissent contends, are Sacramento’s and Maddox’s

directions about how to apply the “shocks the conscience” standard

dicta. Diss. at 3. Justice Souter offered footnote 8 as a direct re-

sponse to Justice Scalia’s concurrence that refused to apply the

“shocks the conscience” standard. Sacramento, 523 U.S. at 843 n.8.

So the Court’s reasoning as to why the standard applied was neces-

sary to the opinion’s central rationale and its holding that Officer

Smith’s behavior did “not shock the conscience.” Id. at 855.

Whether the Court could have resolved the case on narrower

grounds does not detract from the fact that the shocks-the-con-

science standard was crucial to the grounds on which the Court did

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resolve the case. And that makes it binding. See, e.g., Marbury v.

Madison, 5 U.S. 137, 177 (1803).

But even if it were dicta, we have long distinguished be-

tween “dicta” and “Supreme Court dicta.” Schwab v. Crosby, 451

F.3d 1308, 1325 (11th Cir. 2006). And even assuming Sacramento’s

footnote 8 is dicta, it’s not the “subordinate clause, negative preg-

nant, devoid-of-analysis, throw-away kind of dicta.” Id. Rather, it’s

“well thought out, thoroughly reasoned, and carefully articulated

analysis by the Supreme Court describing the scope of one of its

own decisions.” Id. So we give that reasoning and its clear impli-

cations substantial weight.

In any event, Maddox’s application of the “shocks the con-

science” standard is binding. As the Dissent recognizes, Maddox

held “that it was not clearly established that Stephens’s con-

duct . . . was conscience shocking.” Diss. at 37. If Maddox didn’t

need to prevail under the “shocks the conscience” standard, then

we couldn’t have awarded Stephens qualified immunity on the

ground that we did. In other words, if Maddox could have pre-

vailed by proving only that the defendants violated a fundamental

right under clearly established law, then our conclusion that the

law did not clearly establish that Stephens’s conduct was con-

science shocking would have been irrelevant—the “shocks the con-

science” standard wouldn’t have been an element of Maddox’s

claim. But we held that the “shocks the conscience” standard ap-

plied to Maddox’s parental-rights claim. Maddox, 727 F.3d at 1119.

So we applied the standard and concluded he couldn’t prove that

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18 Opinion of the Court 23-10385

element under clearly established law. Our application of the

“shocks the conscience” standard was therefore necessary to our

holding in Maddox, and it binds us here as prior precedent. See

Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998).

B. The Littlejohns challenge executive, not legislative, ac-

tion, so the “shocks the conscience” standard applies.

We must decide, then, whether the Littlejohns challenge

“legislative” or “executive” action. We begin by defining those

terms. “Executive acts characteristically apply to a limited number

of persons” and “typically arise from the ministerial or administra-

tive activities of members of the executive branch.” McKinney, 20

F.3d at 1557 n.9. “Legislative acts, on the other hand, generally ap-

ply to a larger segment of—if not all of—society; laws and broad-

ranging executive regulations are the most common examples.” Id.

For example, a school board rule of general applicability is “legis-

lative” action. See Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194,

198 (1979) (per curiam). But an “administrative decision” that “af-

fects only a limited class of persons” is a “textbook ‘executive act.’”

Lewis v. Brown, 409 F.3d 1271, 1273 (11th Cir. 2005).

Defendants’ actions with respect to the Littlejohns’ child

were “executive.” The Littlejohns challenge Defendants’ “deci-

sion” to create a Student Support Plan for their child and permit

the child to socially transition at school, an action that “affect[ed]

only a limited class of persons.” See id. Put differently, the Lit-

tlejohns challenge Defendants’ application of the Guide to their

child. That is, they challenge Defendants’ individualized action

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consistent with the Guide’s general directives. That is “executive”

action. See Crymes v. DeKalb County, 923 F.2d 1482, 1485 (11th Cir.

1991) (“A legislative act involves policy-making rather than mere

administrative application of existing policies.”).

To be sure, the Guide itself is arguably “legislative,” as it was

a “broad-ranging” policy that “generally appl[ied] to a larger seg-

ment of . . . society,” the Leon County School District. See McKin-

ney, 20 F.3d at 1557 n.9. But the Littlejohns waived any general

challenge to the Guide (or its adoption and broad implementation).

In their opposition to Defendants’ motion to dismiss, the Lit-

tlejohns asserted that “Defendants’ course of conduct, not the con-

tents of the 2018 Guide,” was the “focus of [their] action.” We can-

not revive this waived issue. See, e.g., United States v. Campbell, 26

F.4th 860, 872 (11th Cir. 2022) (en banc). In any event, the district

court found that the adoption of the 2022 Guide mooted any chal-

lenge to the 2018 Guide, a determination that the Littlejohns do

not challenge on appeal. So all that remains is the Littlejohns’ chal-

lenge to “textbook ‘executive act[s].’” 8 See Brown, 409 F.3d at 1273;

8 We reach a different conclusion than the First Circuit recently did when it

determined a similar school-gender-identity policy was legislative action.

Foote v. Ludlow Sch. Comm., 128 F.4th 336, 346–47 (1st Cir. 2025). We do so for

two reasons. First, the Littlejohns litigated the case differently than did the

plaintiffs in Foote. As we discuss above, the Littlejohns waived their general

challenges to the Guide, its adoption, and its broad implementation. By con-

trast, in Foote, the Protocol was itself the “chief target of the Parents’ com-

plaint.” Id. at 347. The focus of the parents’ challenge in Foote was a more

characteristically legislative act—a general policy and its routine

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20 Opinion of the Court 23-10385

C.B. ex rel. Breeding v. Driscoll, 82 F.3d 383, 385, 387 (11th Cir. 1996)

(holding the suspension of students under an existing school policy

was executive action).

And Maddox made clear that even when a plaintiff alleges vi-

olations of her fundamental parental rights, executive action must

“shock the conscience” to violate due process. See Maddox, 727 F.3d

at 1119. In Maddox, the parental-rights interest was at its apex—a

state official removed a child from her mother’s custody. See id. at

1113. Yet we applied the “shock the conscience” standard all the

same. See id. at 1119. And several of our sister circuits have done

so as well. See, e.g., Doe v. Woodard, 912 F.3d 1278, 1300 (10th Cir.

2019) (applying the “shocks the conscience” standard even when

the plaintiff alleged interference with fundamental parental rights);

Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006) (same); Schmidt

v. Des Moines Pub. Sch., 655 F.3d 811, 816 (8th Cir. 2011) (same); Sief-

ert v. Hamilton County, 951 F.3d 753, 766 (6th Cir. 2020) (same); Miller

applications—not, as we see it here, a more characteristically executive act—

the specific application of a general policy to one person. Second, our prece-

dent does not appear to take as narrow a view of executive action as does the

First Circuit. The First Circuit indicated that executive conduct is typically

associated with “instant judgment.” Id. By contrast, we’ve considered execu-

tive action the application of a broad rule to “only a limited class of persons,”

like the enforcement of zoning regulations. Brown, 409 F.3d at 1273–74. To

be sure, we’ve explained that similar regulations or policies may be legislative

acts themselves, see Crymes, 923 F.2d at 1485–86, and plaintiffs could surely

style their complaints to challenge them as legislative action. But the Lit-

tlejohns didn’t do that here; they challenged the “application of existing poli-

cies” to their child. Id. at 1485. And that, we’ve held, is the hallmark of exec-

utive action.

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23-10385 Opinion of the Court 21

v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999) (same); Goe v.

Zucker, 43 F.4th 19, 30 (2d Cir. 2022) (same), cert. denied sub nom.,

Goe v. McDonald, 143 S. Ct. 1020 (2023).

We must follow our precedent here. See, e.g., United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“Under [the prior panel

precedent rule], a prior panel’s holding is binding on all subsequent

panels unless and until it is overruled or undermined to the point

of abrogation by the Supreme Court or by this court sitting en

banc.”).

C. Defendants’ actions did not “shock the conscience.”

So we must now determine whether Defendants’ actions

“shocked the conscience.” They did not.

As the Supreme Court has clarified, “conduct intended to in-

jure in some way unjustifiable by any government interest is the

sort of official action most likely to rise to the conscience-shocking

level.” Sacramento, 523 U.S. at 849. And “[o]nly the most egregious

conduct” meets this standard. Waldman, 871 F.3d at 1292.

We begin once again with Maddox. We decided Maddox on

qualified-immunity grounds, finding that the plaintiff had not

“cited any case that would make it clear to a reasonable social

worker at the time that her actions were arbitrary or conscience

shocking.” 727 F.3d at 1126. So we did not decide whether the

social worker’s conduct “shocked the conscience” and thus violated

the plaintiff’s substantive-due-process rights. See id. at 1127 n.19.

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22 Opinion of the Court 23-10385

Because Maddox did not perform the “shocks the conscience” anal-

ysis, it does not resolve the Littlejohns’ claims.

So we look to other precedent applying the “shocks the con-

science” test in the educational context for guidance. True, these

cases did not involve interference with parental due-process rights,

like the Littlejohns allege. But their analysis of the “shocks the con-

science” test remains instructive.

For example, we found that corporal punishment with a

metal weight lock, which ultimately blinded a student in one eye,

was “arbitrary” and “conscience-shocking.” Neal ex rel. Neal v. Ful-

ton Cnty. Bd. of Educ., 229 F.3d 1069, 1075–77 (11th Cir. 2000). We

reasoned that a school official violated a student’s substantive-due-

process rights if “(1) [he] intentionally used an amount of force that

was obviously excessive under the circumstances, and (2) the force

used presented a reasonably foreseeable risk of serious bodily in-

jury.” Id. at 1075. That test, we reasoned, contemplates “egregious

official abuse of force.” Id. at 1076. And we extended Neal’s frame-

work to a case where a school principal “struck [a student] with a

metal cane in the head, ribs and back,” finding that the principal

was not entitled to qualified immunity. Kirkland ex rel. Jones v.

Greene Cnty. Bd. of Educ., 347 F.3d 903, 904 (11th Cir. 2003).

But, since Neal, we have repeatedly rejected claims of “con-

science-shocking” conduct in educational settings. In Dacosta v.

Nwachukwa, 304 F.3d 1045, 1047 (11th Cir. 2002) (per curiam), the

defendant “slammed” a door in the plaintiff’s face, “violently

swung the door,” and “shoved [the plaintiff’s] face.” Even though

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23-10385 Opinion of the Court 23

the defendant was arrested for criminal battery, we concluded that

the defendant’s conduct did not “shock[] the conscience” beyond

the commission of a state-law tort. Id. at 1047–48.

Nor did we find a substantive-due-process violation when a

student died from electric shock after touching a live wire during a

class demonstration. Nix v. Franklin Cnty. Sch. Dist., 311 F.3d 1373,

1374–75 (11th Cir. 2002). The plaintiffs, the deceased student’s par-

ents, argued that school officials “were particularly arbitrary, reck-

less, and deliberately indifferent” in allowing the demonstration to

occur. Id. at 1376. But we concluded that, under our case law, the

plaintiffs’ “allegations of ‘deliberate indifference’” did not ‘“shock

the conscience’ in a way that gives rise to a due-process violation.”

Id. at 1378.

We extended Nix’s reasoning in another case concerning a

student’s death, this time following an “intense” football practice.

See Davis v. Carter, 555 F.3d 979, 980 (11th Cir. 2009). The plaintiffs,

the deceased student’s parents, alleged that the football coaches

failed to provide enough water, ignored the student’s complaints

that he was dehydrated, subjected the student to “rigorous condi-

tioning drills,” and failed to attend to the student even after he col-

lapsed. Id. at 980–81. We found that the football coaches were en-

titled to qualified immunity because their conduct did not “rise to

the conscience-shocking level.” Id. at 984. Though the coaches

may have been “deliberately indifferent to the safety risks posed by

their conduct,” we said, they did not “act[] willfully or maliciously

with an intent to injure,” so they did not violate the student’s

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24 Opinion of the Court 23-10385

constitutional rights. Id. Rather, the plaintiffs’ claims were

“properly confined to the realm of torts.” Id.

Taken together, Nix and Davis impose a high bar: even where

a student dies, school officials’ behavior does not “shock the con-

science” if it is no more than reckless or deliberately indifferent.

See id.; cf. also L.S. ex rel. Hernandez v. Peterson, 982 F.3d 1323, 1331

(11th Cir. 2020) (expressing “doubt that deliberate indifference can

ever be ‘arbitrary’ or ‘conscience shocking’ in a non-custodial set-

ting”). Rather, something more is required, like “malicious[]” con-

duct, see Davis, 555 F.3d at 984, or “obviously excessive” force, see

Neal, 229 F.3d at 1076. We do not have to fix the precise height of

that bar to conclude that the Littlejohns’ allegations do not clear it.

Comparing the facts here to those in our cases above, we

cannot conclude that Defendants’ actions with respect to the Lit-

tlejohns’ child “shocked the conscience.” The child was not physi-

cally harmed, much less permanently so. Contra Neal, 229 F.3d at

1071; Kirkland, 347 F.3d at 904; Dacosta, 304 F.3d at 1047; Nix, 311

F.3d at 1375; Davis, 555 F.3d at 980–81. 9 Defendants did not remove

the Littlejohns’ child from their custody. Contra Maddox, 727 F.3d

at 1113. And Defendants did not force the child to attend a Student

Support Plan meeting, to not invite the Littlejohns to that meeting,

or to socially transition at school. In fact, Defendants did not force

the Littlejohns’ child to do anything at all. Cf. Sacramento, 523 U.S.

9 We do not suggest that only physical harm can support a substantive-due-

process violation. We offer this list only as illustrative (not exhaustive) exam-

ples drawn from our precedent.

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23-10385 Opinion of the Court 25

at 855. And perhaps most importantly, Defendants did not act with

intent to injure. To the contrary, they sought to help the child. Un-

der these circumstances, even if the Littlejohns felt that Defend-

ants’ efforts to help their child were misguided or wrong, the mere

fact that the school officials acted contrary to the Littlejohns’

wishes does not mean that their conduct “shocks the conscience”

in a constitutional sense.

Finally, we are not persuaded by the Littlejohns’ attempts to

distinguish Sacramento and its framework because this case does

not involve “exigent circumstances” or “split-second life or death

decisions.” We agree, of course, that whether government action

“shocks the conscience” depends on context. But the context does

not change the applicable legal framework. After all, Sacramento is

clear that its framework applies to all substantive-due-process cases

that involve executive action. See Sacramento, 523 U.S. at 847

(“[T]he substantive component of the Due Process Clause is vio-

lated by executive action only when it ‘can properly be character-

ized as arbitrary, or conscience shocking, in a constitutional

sense.’” (emphasis added) (citation omitted)); see also id. at 847 n.8

(explaining that “executive action challenges raise a particular need

to preserve the constitutional proportions of constitutional

claims”).

Not only that, but we have applied Sacramento’s framework

in cases that did not concern “split-second” or law-enforcement de-

cisions—most relevantly, Maddox. We reject the Littlejohns’ efforts

to cabin Sacramento and reiterate that the “shocks the conscience”

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26 Opinion of the Court 23-10385

test is appropriate for all substantive-due-process challenges to ex-

ecutive action.

Because the Littlejohns failed to state a claim that Defend-

ants’ (executive) actions “shocked the conscience,” the district

court properly granted Defendants’ motion to dismiss. 10

IV. CONCLUSION

For the reasons we’ve discussed, we affirm the district

court’s grant of Defendants’ motion to dismiss.

AFFIRMED.

10 Because we find that the Littlejohns’ complaint fails to state a claim on the

merits, we do not reach the individual Defendants’ alternative argument that

they are entitled to qualified immunity.

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23-10385 ROSENBAUM, J., Concurring 1

ROSENBAUM, Circuit Judge, concurring:

Judge Newsom’s concurrence today marks at least the

fourth time he’s lamented substantive due process in one of his

opinions. And although his opinion today complains specifically

about substantive-due-process doctrine as it applies to “executive”

state action, 1 the first paragraph of Judge Newsom’s concurrence

takes issue with substantive due process even as we apply it to “leg-

islative” state action. I haven’t previously had a chance to respond

to Judge Newsom’s concerns about substantive due process, 2 but

given that he’s raised the issue repeatedly, I did not think I could

forego answering here.

Judge Newsom has long said he’s “for ditching substantive

due process altogether and exploring” what he thinks is a more

“promising” and “principled” vehicle “for protecting individual

1 To be clear, I don’t write to address Judge Newsom’s critiques of how we’ve

distinguished between substantive-due-process challenges to “legislative” and

“executive” state action or of the “shocks the conscience” test that we apply

to challenges to executive action. Newsom Op. at 3–18. Rather, I address only

what we generally think of when we speak of substantive due process: sub-

stantive-due-process challenges to “legislative” state action—which do not

employ the “shocks the conscience” test. That I don’t address “executive”

substantive-due-process claims and the “shocks the conscience” test is neither

an endorsement of nor objection to these frameworks. It’s just that, in light

of the critical mass of Judge Newsom’s attacks on substantive-due-process

challenges to “legislative” state action, I feel my focus here needs to be on that

(and in any case, this concurring opinion is already quite long doing just that).

2 I was on the en banc Court in Sosa v. Martin County, one of Judge Newsom’s

previous outings with substantive due process. But there, I needed to use my

dissent to explain why the Majority Opinion was incorrect.

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2 ROSENBAUM, J., Concurring 23-10385

rights against state interference”—the Fourteenth Amendment’s

Privileges or Immunities Clause. See Sosa v. Martin County, 57 F.4th

1297, 1307 (11th Cir.) (en banc) (Newsom J., concurring) (citing

Kevin Newsom, Setting Incorporationism Straight: A Reinterpretation

of the Slaughter-House Cases, 109 YALE L.J. 643, 658–87 (2000)), cert.

denied, 144 S. Ct. 88 (2023). In Judge Newsom’s view, substantive

due process “loos[es] judges to foist their policy preferences on so-

ciety.” Newsom Op. at 3.

No doubt a serious charge. But respectfully, I disagree with

Judge Newsom’s conclusion. So before Judge Newsom leaves sub-

stantive due process for constitutional roadkill, I have a few

thoughts.

Let’s start where we agree. We agree that the Constitution

protects certain unenumerated rights. See, e.g., U.S. CONST.

amend. XIV, § 1. It is beyond dispute that our Founders intended

even broad provisions, like the Due Process Clause or the Privi-

leges or Immunities Clause, to constrain government. See Marbury

v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).

But we disagree about the precise meaning of those words

and the doctrine we can pull from them. To put it another way,

we disagree about the methodology by which we should identify

and enforce fundamental rights.

Under current doctrine, which we home in the Due Process

Clause, fundamental rights are those that are deeply rooted in our

Nation’s history and tradition and implicit in our concept of or-

dered liberty. Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

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23-10385 ROSENBAUM, J., Concurring 3

Think marriage, which has always been “the foundation of the fam-

ily and of society.” Maynard v. Hill, 125 U.S. 190, 211 (1888).

For his part, Judge Newsom would prefer to make our fun-

damental-rights jurisprudence anew under the Privileges or Im-

munities Clause. But to my knowledge, Judge Newsom hasn’t yet

shared how his view of the privileges-or-immunities doctrine will

work. Still, he has left open the possibility that the Privileges or

Immunities Clause could accommodate some of the individual lib-

erties our current doctrine secures. See, e.g., Sosa, 57 F.4th at 1307

(Newsom J., concurring); Newsom, Incorporationism, supra, at 736

n.450 (reserving “for another day whether the Court’s privacy de-

cisions . . . might find support in a resurrected Privileges or Immun-

ities Clause” (cleaned up)).

So what’s the difference, a reader might wonder. Given his

charge that substantive-due-process doctrine “loos[es] judges to

foist their policy preferences on society” because “it’s so untethered

from traditional interpretive sources,” Newsom Op. at 3, a reader

might think that the guardrails on substantive due process are sub-

stantially weaker than those on any framework under the Privi-

leges or Immunities Clause.

Not so. See infra Section III.A. No matter whether we travel

under substantive-due-process doctrine, the Privileges or Immuni-

ties Clause, or even certain enumerated-rights amendments, the

first leg of our journey generally requires us to determine whether

the claimed right is a fundamental one. And in each case, we must

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4 ROSENBAUM, J., Concurring 23-10385

employ all the usual tools, like the Constitution’s structure, its his-

tory, and our traditions to assess that. We also consider precedent.

Take the Privileges or Immunities Clause. The text doesn’t

tell us what our predecessors understood a “privilege” or “immun-

ity” to be. Or consider the First Amendment. True, we know the

Constitution protects “the freedom of speech.” U.S. CONST.

amend. I. But we can’t tell from the text alone, for instance,

whether the provision protects those who burn American flags. See

Texas v. Johnson, 491 U.S. 397, 404 (1989). So we resort to our usual

means of interpreting the Constitution—history, tradition, struc-

ture, and precedent—to fill in the gaps. And we do the same thing

when we conduct a substantive-due-process analysis.

That brings us to the second step of a fundamental-rights

analysis. To my knowledge, Judge Newsom hasn’t yet shared how

that would work under his view of the Privileges or Immunities

Clause. So I’ll assume the second step would work in one of two

ways.

One the one hand, the second step may adopt a tiers-of-scru-

tiny approach, as the Supreme Court did when it applied the Privi-

leges or Immunities Clause in Saenz v. Roe, 526 U.S. 489 (1999).

There, the Supreme Court said that we evaluate the constitution-

ality of a law that burdens a fundamental right by subjecting it to

at least strict scrutiny. Id. at 504. That means we ask whether the

law is narrowly drawn to further a compelling government inter-

est, and if it isn’t, the law doesn’t survive. If, on the other hand, the

first step of our analysis reveals the claimed right isn’t fundamental,

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23-10385 ROSENBAUM, J., Concurring 5

then Saenz seems to suggest we apply rational-basis scrutiny, mean-

ing the law stands if we can conceive of a rational basis for it.

But guess what: At the second step of the substantive-due-

process framework, we also apply these same tiers of scrutiny

based on whether a right is fundamental or not. So again, no dif-

ference!

On the other hand, the second step of analysis could follow

the historical approach the Court has employed in some recent

constitutional cases—think the Second Amendment, for instance.

If so, we’d look for “relevantly similar” historical analogues for the

challenged law. But when we do that, the level of generality at

which we define the relevant regulatory tradition that has gov-

erned the asserted right can determine whether we will find a “rel-

evantly similar” historical analogue and thus whether the law

stands or falls. That determination—the level of generality at

which we define the relevant regulatory tradition—is not a binary

one. So by its nature, it allows judges substantial discretion. In-

deed, some might say more than do the tiers of scrutiny.

Yes, it would be great if the Constitution gave us indisputa-

bly clear direction for every question, but it doesn’t. No document

could. But that doesn’t mean that the Constitution’s intent to pro-

tect unenumerated fundamental rights is not clear. It is. Indeed,

it’s beyond dispute that the Constitution protects unenumerated

fundamental rights: the Ninth Amendment’s text says so; the his-

torical record unambiguously reveals the Founders’ intent to pro-

tect unenumerated fundamental rights; the Framers of the

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6 ROSENBAUM, J., Concurring 23-10385

Fourteenth Amendment saw the Fourteenth Amendment as pro-

tecting unenumerated fundamental rights; and the source of that

protection is clearly in Section One of the Fourteenth Amend-

ment—whether under the Due Process Clause or the Privileges or

Immunities Clause, or even some combination of the two.

Plus, as I’ve just summarized, the tests we apply to protect

those rights under either substantive-due-process doctrine or the

Privileges or Immunities Clause require us to engage in essentially

the same analysis. And for literally years now, the Supreme Court

(and the lower courts following suit) has applied substantive-due-

process doctrine to consider challenges to claimed unenumerated

fundamental rights.

In short, applied properly and faithfully, substantive due

process does not allow judges to “foist their policy preferences on

society” any more than we may when we construe constitutional

rights under other parts of the Constitution—whether under enu-

merated-rights provisions or the Privileges or Immunities Clause.

This opinion proceeds in three parts. But as a heads up, that

doesn’t mean it’s brief. Before I can address the charge that sub-

stantive due process is the modus operandi of judicial activism, I

must first lay some foundation.

Towards that end, Section I starts with Judge Newsom’s ar-

gument that substantive due process is “unmoored from history.”

Newsom Op. at 2. It shows that our Founders always intended and

the people always understood that our constitutions, both federal

and state, preserved to the people fundamental yet unenumerated

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23-10385 ROSENBAUM, J., Concurring 7

rights. This history lays the groundwork for our understanding of

what makes an unenumerated right fundamental.

Section II then compares modern substantive-due-process

doctrine to those historical principles. It explains that today’s juris-

prudence largely adheres to the understanding that the Founders

and the drafters of the Fourteenth Amendment held about the pro-

cess by which courts identify unenumerated rights and about the

substance of those rights. Far from dismissing “traditional inter-

pretive sources,” id. at 3, substantive-due-process precedent re-

quires that we employ them.

And in Section III, I’ll address head on the assertion that, “[i]f

ever there were a doctrine that gave a veneer of truth to the vicious

lie that judges just decide cases in accordance with their priors, it’s

substantive due process.” Id. Section III responds to Judge New-

som’s suggestion, as well as his pulling of substantive due process’s

fire alarms—Dred Scott and Lochner—as reasons to abandon the

doctrine. And it shows that neither Dred Scott nor Lochner (as erro-

neous and, in Dred Scott’s case, abhorrent as they were) validate the

charge that substantive due process is rotten at its core any more

than Plessy v. Ferguson’s separate-but-equal abomination proves the

Equal Protection Clause is fatally defective.

I. The Constitution protects and Founding Era and Recon-

stitution Era Americans intended for courts to enforce

unenumerated fundamental rights.

Our Constitution rests on a bargain (the “social contract”).

Each of this country’s citizens sacrifices some of their freedom to

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8 ROSENBAUM, J., Concurring 23-10385

form a government that provides for the common defense, pro-

motes the general welfare, and secures the blessings of liberty. U.S.

CONST. pmbl. But we don’t relinquish all our rights. Some, after

all, are “unalienable.” 3 THE DECLARATION OF INDEPENDENCE para.

2 (U.S. 1776). The Framers listed some of those preexisting privi-

leges in the Constitution’s first eight Amendments. Still, at no

point did they intend, or did our country’s citizens understand, the

enumeration of some rights to deny or disparage other limitations

on governmental authority. Indeed, the Ninth Amendment could

not say so any more clearly. Americans always understood that

courts would enforce individuals’ retained rights and would check

acts not within the state and federal governments’ powers.

This understanding of how state and federal constitutions

secure our fundamental rights animated the drafters of the Four-

teenth Amendment’s Section One, which, among other things,

precludes states from “mak[ing] or enforc[ing] any law which shall

abridge the privileges or immunities of the citizens of the United

States” or “depriv[ing] any person of life, liberty, or property, with-

out due process of law.” U.S. CONST. amend. XIV, § 1. The lead-

3 Nowadays, we more commonly use the term “inalienable.” But “unaliena-

ble” and “inalienable” mean the same thing. See Unalienable, BLACK’S LAW

DICTIONARY (12th ed. 2024) (stating as the only definition for the term, “See

inalienable”); Unalienable, OXFORD ENGLISH DICTIONARY,

https://www.oed.com/dictionary/unalienable_adj (last visited October 24,

2024) [https://perma.cc/KMF8-STLN]. To conform to modern preference,

this opinion uses the term “inalienable” except when quoting sources that use

the term “unalienable.”

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23-10385 ROSENBAUM, J., Concurring 9

up to and aftermath of the Civil War made clear that the states had

not adequately secured fundamental rights for some within their

borders—namely, Black Americans. So the Fourteenth Amend-

ment enabled the federal government, including its courts, to en-

force those rights.

This Section details that history. It first recounts Americans’

view of unenumerated, fundamental rights at the Founding. Then,

it discusses fundamental-rights jurisprudence during the Antebel-

lum period. And last, it shows how Americans during Reconstruc-

tion adopted the Fourteenth Amendment to ensure the federal

government could secure Americans’ unenumerated, fundamental

rights. This history lays the groundwork for understanding how

modern substantive due process accords with our predecessor’s un-

derstanding of what makes an unenumerated right fundamental.

A. When Americans ratified the Constitution, they understood

that courts would secure Americans’ unenumerated, funda-

mental rights.

We the people are sovereign in these United States. Through

the state and federal constitutions, we cede some of our natural

freedoms in exchange for an elected government that acts for the

common good. See generally JOHN LOCKE, TWO TREATISES OF

GOVERNMENT (1689); see THE DECLARATION OF INDEPENDENCE

para. 2 (U.S. 1776). To the states, we grant broad police powers to

regulate the public health, safety, and welfare. See, e.g., Munn v. Illi-

nois, 94 US. 113, 124 (1876); Jacobson v. Massachusetts, 197 US. 11, 27

(1905). And to the federal government, we grant a set of

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10 ROSENBAUM, J., Concurring 23-10385

“enumerated powers.” McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316, 405 (1819). But those grants of authority are not absolute.

From both, we retain a set of fundamental rights the government

cannot infringe.

The Framers found this proposition unremarkable. “In large

part, the notion that Americans enjoyed a common set of basic

rights was an engrained assumption that needed no explanation.”

Jud Campbell, General Citizenship Rights, 132 YALE L.J. 611, 634

(2023). 4 The “fundamental principles of civil and religious liberty”

formed “the basis whereon these republics, their laws and

4 These limitations on government generally fall into two buckets: inalienable

natural rights and common-law rights. See Baude, Campbell & Sachs, infra, at

1196–98. The first are “unceded portions of right,” such as the “freedom of

religion,” Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790),

in 18 THE PAPERS OF THOMAS JEFFERSON 131, 132 (Julian P. Boyd ed., 1971)

[hereinafter Jefferson to Webster], the sanctity of the family, Moore v. City of

East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion), or the right to

marry, Obergefell v. Hodges, 576 U.S. 644, 669 (2015), that Americans did not

grant to the government through the social contract. The second, Jefferson

explained, are “certain fences which experience has proved peculiarly effica-

cious against wrong,” such as “trial by jury, Habeas corpus laws, free presses.”

Jefferson to Webster, supra, at 132. In other words, the second bucket includes

rights that developed through the common law or that the colonies’ experi-

ences with Britain proved necessary. See United States v. Williams, 113 F.4th

637, 649 n.5 (6th Cir. 2024) (citing 2 DOCUMENTARY HISTORY OF THE

CONSTITUTION OF THE UNITED STATES OF AMERICA 321 (Washington: Depart-

ment of State, 1894)) (referring to the Third Amendment as a “restrictive” pro-

vision). Americans generally cede their remaining liberties, such as the right

to contract or acquire and possess property, “to be regulated, modified, and,

sometimes, absolutely restrained” by the government for the public good. Og-

den v. Saunders, 25 U.S. 213, 320 (1827) (opinion of Trimble, J.).

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constitutions are erected.” The Northwest Ordinance, Act of Aug.

7, 1789, ch. 8, 1 Stat. 50, 51 n.a. So “the power to violate and disre-

gard” these rights did not “lurk[] under any general grant of legis-

lative authority” or “general expressions of the will of the people.”

Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 657 (1829).

The Framers expressly articulated some (though not all) of

these fundamental rights in the Bill of Rights. Indeed, “there was

broader agreement that Americans enjoyed certain fundamental le-

gal rights with determinate legal content.” William Baude, Jud

Campbell & Stephen E. Sachs, General Law and the Fourteenth

Amendment, 76 STAN. L. REV. 1185, 1199 (2024). After all, the Bill of

Rights was “not intended to lay down any novel principles of gov-

ernment, but simply to embody certain guaranties and immunities

which we had inherited from our English ancestors.” Robertson v.

Baldwin, 165 U.S. 275, 281 (1897).

The “right of the people peaceably to assemble,” for in-

stance, “existed long before the adoption of the Constitution of the

United States”; it “is, and always has been, one of the attributes of

citizenship under a free government” that “‘derives its

source’ . . . from those laws whose authority is acknowledged by

civilized man throughout the world.” United States v. Cruikshank,

92 U.S. 542, 551 (1875) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat)

1, 211 (1824)); see also District of Columbia v. Heller, 554 U.S. 570, 592

(2008) (“[I]t has always been widely understood that the Second

Amendment . . . codified a pre-existing right.”); Crawford v. Washing-

ton, 541 U.S. 36, 54 (2004) (concluding the Sixth Amendment’s

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12 ROSENBAUM, J., Concurring 23-10385

Confrontation Clause referenced “the right of confrontation at

common law”).5

The debate between the Federalists and Anti-Federalists over

the first ten amendments illustrates this point that the Framers un-

derstood the Constitution to protect these rights that pre-existed

it—whether the Constitution expressly named them or not. Anti-

Federalists pushed for a Bill of Rights because they believed the

Necessary and Proper Clause risked granting Congress too much

power. See Brutus No. 2 (1787), reprinted in 2 THE COMPLETE ANTI-

FEDERALIST 372, 374 (Hebert J. Storing, ed., Univ. Chi. Press 1981)

(suggesting the federal government’s power is “complete, with re-

spect to every object to which they extend”). The Federalists of-

fered two responses.

First, echoing the inherent limitations on government that

Americans inherited from the English common law, the Federalists

argued that “a bill of rights is not necessary.” 1 ANNALS OF CONG.

456 (1789) ( Joseph Gales ed., 1834) (remarks of Rep. James Madi-

son). That was so, they reasoned, because a bill of rights would be

a mere “declaration of rights” in which the people were already

“secure,” “whether” a bill of rights “declare[d] them or not.” Id. at

5 The Framers also saw Article 1, Section 10, as articulating preexisting limita-

tions on legislative authority. See THE FEDERALIST No. 44 (James Madison)

(“Bills of attainder, ex-post-facto laws, and laws impairing the obligation of

contracts, are contrary to the first principles of the social compact, and to every

principle of sound legislation.”).

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23-10385 ROSENBAUM, J., Concurring 13

742 (remarks of Rep. Roger Sherman).6 In fact, Federalists like

Noah Webster “spoofed Anti-Federalists” who attempted to list the

several rights they misperceived the new federal government to

now be able to abrogate. AKHIL REED AMAR, AMERICA’S

UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE

LIVE BY 124 (2012). For instance, Webster proposed a mocking

amendment that “Congress shall never restrain any inhabitant of

America from eating and drinking, at seasonable times . . . .” Id.

And second, the Federalists argued that enumerating certain

rights “would disparage those rights which were not placed in that

enumeration.” 1 ANNALS OF CONG. 456 (1789) ( Joseph Gales ed.,

1834) (remarks of Rep. James Madison); AMAR, AMERICA’S

UNWRITTEN CONSTITUTION, supra, at 125. To some, the risks

6 Remarks like these were common. See, e.g., 2 DEBATES ON THE ADOPTION

OF THE FEDERAL CONSTITUTION 161–62 (Jonathan Elliot ed., 2d ed., Philadel-

phia, J.B. Lippincott 1891) (remarks of Theophilus Parsons) (“[N]o power was

given to Congress to infringe on any one of the natural rights of the people by

this Constitution; and should they attempt it without constitutional authority,

the act would be a nullity, and could not be enforced.”); Letter from Pierce

Butler to James Iredell (Aug. 11, 1789) (“A few milk-and-water amendments

have been proposed by Mr. M[adison], such as liberty of conscience, a free

press, and one or two general things already well secured.”), reprinted in DAVID

K. WATSON, THE CONSTITUTION OF THE UNITED STATES: ITS HISTORY,

APPLICATION AND CONSTRUCTION 1368 n.21 (1910); Virginia Ratification Con-

vention Debates (June 16, 1788) (remarks of George Nicholas) (“A Bill of

Rights is only an acknowledgement of the pre-existing claim to rights in the

people. They belong to us as much as if they had been inserted in the Consti-

tution.”), reprinted in 10 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF

THE CONSTITUTION 1334 (John P. Kaminski et al. eds., 1993).

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14 ROSENBAUM, J., Concurring 23-10385

enumeration posed were particularly stark because enumeration

could foreclose “the progress of things,” in which we may “discover

some great and Important” right that “we don’t now think of.” Let-

ter from Edmund Pendleton to Richard Henry Lee ( June 14, 1788),

in 8 THE LETTERS AND PAPERS OF EDMUND PENDLETON 532, 532–33

(David John Mays ed., 1967).

Both responses reflected the Framers’ intuitions that enu-

meration wasn’t necessary to preserve Americans’ fundamental

rights. And the Federalists’ second concern emphasized that enu-

meration might even endanger, rather than secure, fundamental

rights.

Still, ultimately, the Federalists agreed to append a Bill of

Rights to the Constitution, in part, to appease the Anti-Federalists.

See, e.g., Letter from George Washington to James Madison (May

31, 1789), reprinted in 2 THE PAPERS OF GEORGE WASHINGTON,

PRESIDENTIAL SERIES 419, 419 (Dorothy Twohig ed., 1987). Madi-

son recognized some of the Anti-Federalists’ concerns. Although

he acknowledged the “force” of the Federalists’ first “observation”

that a Bill of Rights is not necessary, Madison underscored the prac-

tical, “salutary effect against the abuse of power” that enumeration

might provide. 7 1 ANNALS OF CONG. 456–57 (1789) ( Joseph Gales

ed., 1834) (remarks of Rep. James Madison).

7 Madison argued that enumeration would guard against overzealous govern-

ing in all its forms. Enumeration, he said, would “establish the public opinion

in . . . favor” of Americans’ rights and “rouse the attention of the whole

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23-10385 ROSENBAUM, J., Concurring 15

Even so, as to the Federalists’ second concern that a declara-

tion of some rights might undermine rights that base principles of

the social contract and English common law secured, Madison con-

sidered it “one of the most plausible arguments” in opposition to

the Bill. Id. at 456. So the people ratified another amendment to

ensure that “[t]he enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage others retained

by the people.” U.S. CONST. amend. IX.

The Ninth Amendment confirmed what Americans already

understood: “[t]he people were entitled to various preexisting and

customary rights already in place at the Founding” as well as rights

the people inherently “withheld from the government . . . when

government was established.” See AMAR, AMERICA’S UNWRITTEN

CONSTITUTION, supra, at 108–09 (confirming the Ninth Amend-

ment protects rights that people inherently “withheld from the

government . . . when government was established,” which may

community,” helping to “control the majority from those acts to which they

might be otherwise inclined.” 1 ANNALS OF CONG. 455 (1789) (Joseph Gales

ed., 1834) (remarks of Rep. James Madison). And, he continued, enumeration

would “impress some degree of respect for [individual liberties],” especially

among legislators who occupied “the most powerful” branch of government.

Id. at 454–55. Plus, Madison remarked, a declaration of rights could spur the

judiciary “to consider themselves in a peculiar manner the guardians of those

rights.” Id. at 457. In this way, the judiciary could overcome its “natural fee-

bleness” and “continual jeopardy of being overpowered, awed, or influenced

by [the] co-ordinate branches.” THE FEDERALIST NO. 78 (Alexander Hamil-

ton). In sum, Madison found persuasive the realist and political, rather than

the legal, justifications for enumeration. Jud Campbell, Judicial Review and the

Enumeration of Rights, 15 GEO. J.L. & PUB. POL’Y 569, 571 (2017).

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16 ROSENBAUM, J., Concurring 23-10385

still “emerge[] long after the Founding” through “practice[] by each

generation of Americans”); see also Griswold v. Connecticut, 381 U.S.

479, 490 (1965) (Goldberg, J., concurring) (“[T]he Framers did not

intend that the first eight amendments be construed to exhaust the

basic and fundamental rights which the Constitution guaranteed to

the people.”). And that was so whether the Constitution expressly

enumerated those fundamental rights or not.

B. Throughout the Antebellum period, courts secured Americans’

unenumerated, fundamental rights.

As the Founders intended, Antebellum courts routinely en-

forced Americans’ fundamental rights. And both state and federal

courts did so even when the pertinent constitution didn’t have a

textual hook explicitly guaranteeing the right at issue.

1. State courts routinely enforced unenumerated rights

against state abridgment.

State courts commonly enforced fundamental rights. And

they did so even though, as the Supreme Court held in Barron v.

Baltimore, 32 U.S. 243, 250–51 (1833), before the ratification of the

Fourteenth Amendment, the Bill of Rights did not bind them.

State courts also enforced fundamental rights even though state

constitutions did not include all the rights that the federal Consti-

tution’s first eight amendments listed. These so-called “Barron con-

trarian” state courts regularly enforced the Bill of Rights’s limita-

tions in their state.

But they did so not because they disagreed with Barron and

thought the amendments bound “the states of [their] own

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23-10385 ROSENBAUM, J., Concurring 17

legislative force” (though some did so believe). Rather, they en-

forced the Bill of Rights’s limitations because they saw the amend-

ments as “declaratory of certain fundamental common-law rights”

owed to any citizen of a free society. AKHIL REED AMAR, THE BILL

OF RIGHTS: CREATION AND RECONSTRUCTION 147, 153 (1998);

Baude, Campbell & Sachs, supra, at 1200 & n.85.

Consider Nunn v. Georgia, 1 Ga. 243 (1846). There, the Geor-

gia Supreme Court enforced a citizen’s right to bear arms for self-

defense even though the adjudication was not “made on clauses in

the State Constitution[].” Id. at 249. The court dismissed the

right’s unenumerated status as immaterial because the Second

Amendment codified “an unalienable right, which lies at the bot-

tom of every free government,” and the people could not have “in-

tended to confer” the power to abridge it “on the local legislatures.”

Id. at 250. Nunn then confirmed that other fundamental rights, like

the right of the people “to be secure in their persons, houses, pa-

pers, and effects, against unreasonable searches and seizures; in all

criminal prosecutions, to be confronted with the witness against

them; to be publicly tried by an impartial jury; and to have the as-

sistance of counsel for their defence,” were “as perfect under the State

as the national legislature”; they “cannot be violated by either.” Id. at

251 (emphasis in original).

Many courts treated the Takings Clause similarly. New Jer-

sey’s constitution, for instance, did not provide for a right to com-

pensation when the government confiscated private property.

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18 ROSENBAUM, J., Concurring 23-10385

Yet New Jersey’s supreme court rejected the argument that

non-enumeration precluded a plaintiff’s takings claim. The court

explained that the limitation was “operative as a principle of uni-

versal law; and the legislature of this State, can no more take pri-

vate property for public use, without just compensation, than if

this restraining principle were incorporated into, and made part of

its State Constitution.” Sinnickson v. Johnson, 17 N.J.L. 129, 146

(1839); see Young v. McKenzie, 3 Ga. 31, 44 (1847) (enforcing the rights

declared in the Takings Clause because it embodies a “great com-

mon law principle . . . applicable to all republican governments, and

which derived no additional force, as a principle, from being incor-

porated into the Constitution of the United States”); Bradshaw v.

Rodgers, 20 Johns. 103, 105–06 (N.Y. Sup. Ct. 1822) (same); L.C. &

C.R.R. Co. v. Chappell, 24 S.C.L. (Rice) 383, 387, 389 (1838) (same);

Hall v. Washington County, 2 Greene 473, 478 (Iowa 1850) (same);

State v. Glen, 52 N.C. (7 Jones) 321, 330–31 (1859) (same).

These examples are not outliers. The force of preexisting,

fundamental rights was “widespread” in state courts and “reflective

of a serious theory of constitutional government”—even though

the Bill of Rights did not, at that time, bind the states. Jason Maz-

zone, The Bill of Rights in the Early State Courts, 92 MINN. L. REV. 1,

26 n.98, 29–31 (2007).

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2. Despite their limited subject-matter jurisdiction, fed-

eral courts also enforced unenumerated rights against

government abridgment.

And federal courts applied that same thinking to many

rights that the Bill of Rights does not expressly declare. Indeed,

federal courts acknowledged and enforced unenumerated rights in

the Antebellum period, although in limited contexts. At that time,

federal courts often lacked jurisdiction over claims that a state de-

nied a citizen’s fundamental rights. Exercised against the states,

those rights, although fundamental, were not federal rights suffi-

cient to trigger federal courts’ arising-under jurisdiction, let alone

one of the Judiciary Act’s limited grants of the Supreme Court’s

appellate jurisdiction. Cf. Calder v. Bull, 3 U.S. (3 Dall.) 386, 392

(1798) (opinion of Chase, J.) (“[T]his court has no jurisdiction to

determine that any law of any state Legislature, contrary to the

Constitution of such state, is void.”). 8 As a result, petitioners could

not pursue state violations of their fundamental rights on appeal

from state courts to the Supreme Court. Compare Trs. of Dartmouth

Coll. v. Woodward, 1 N.H. 111, 114 (1817) (“The legislative power of

this state . . . is limited only by our constitutions and by the funda-

mental principles of all government and the unalienable rights of

mankind.”), with Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4

8 Plus, if a state court upheld a fundamental right as a federal right superior to

a state’s action, the losing party could not appeal its loss to the Supreme Court.

See Judiciary Act of 1789, ch. 20, § 25, 1 Stat. 73, 86 (codified as amended at 28

U.S.C. § 2104); RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER’S THE

FEDERAL COURTS AND THE FEDERAL SYSTEM 25 (7th ed. 2015).

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20 ROSENBAUM, J., Concurring 23-10385

Wheat.) 518, 625, 644–54 (1819) (opinion of Marshall, C.J.) (ruling

only on the Contracts Clause); see also Baude, Campbell & Sachs,

supra, at 1203 (highlighting the same dynamic in Barron).

That said, federal courts did adjudicate fundamental-rights

claims in two circumstances. First, plaintiffs could seek redress for

violations of their fundamental rights under the Constitution’s

Privileges and Immunities Clause, U.S. CONST. art. IV, § 2, cl. 1. (not

to be confused with the Privileges or Immunities Clause, U.S.

CONST. amend. XIV, § 1, which was not ratified until 1868). And

second, courts adjudicated fundamental-rights claims when parties

invoked diversity jurisdiction. I discuss each circumstance in turn.

As to the first circumstance where federal courts adjudicated

fundamental-rights claims, plaintiffs could seek redress for viola-

tions of their fundamental rights under the Constitution’s Privi-

leges and Immunities Clause. At the Founding, the Framers pre-

sumed that a citizen’s home state would guarantee to its citizens

the base freedoms inherent in our social contract. But the Framers

worried that states and their courts might discriminate against out-

of-state Americans. See Erie R. Co. v. Tompkins, 304 U.S. 64, 74 (1938).

So they included the Privileges and Immunities Clause to protect

citizens’ fundamental rights, and they guaranteed a federal forum

to secure the enforcement of those rights. See THE FEDERALIST No.

80 (Alexander Hamilton) (“[I]n order to the inviolable maintenance

of that equality of privileges and immunities to which the citizens

of the Union will be entitled, the national judiciary ought to

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23-10385 ROSENBAUM, J., Concurring 21

preside in all cases in which one State or its citizens are opposed to

another State or its citizens.”).

Corfield v. Coryell is the authoritative case on the matter. 6 F.

Cas. 546 (C.C.E.D. Pa. 1825) (No. 3,230) (Washington, Circuit Jus-

tice). And for our purposes, it both confirms the Founders’ under-

standing of fundamental rights and provides an early template for

how courts applied those initial understandings to distinguish fun-

damental rights from non-fundamental ones.

In Corfield, a Pennsylvania citizen claimed that a New Jersey

law prohibiting him, as a nonresident, from harvesting oysters in

the State violated the Privileges and Immunities Clause because it

deprived him of a right New Jersey guaranteed to its own citizens.

Id. at 551–52. The Court rejected the argument.

The Privileges and Immunities Clause, Justice Washington

clarified, protected only “those privileges and immunities which

are, in their nature, fundamental; which belong, of right, to the cit-

izens of all free governments; and which have, at all times, been

enjoyed by the citizens of the several states which compose this

Union, from the time of their becoming free, independent, and

sovereign.” Id. at 551. Among those rights were “[p]rotection by

the government; the enjoyment of life and liberty, with the right to

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22 ROSENBAUM, J., Concurring 23-10385

acquire and possess property of every kind, and to pursue and ob-

tain happiness and safety.” Id. at 551–52. 9

And under these “general heads” fell many other rights: the

right to “pass through, or to reside in any other state, for purposes

of . . . professional pursuits”; “to claim the benefit of the writ of

habeas corpus; to institute and maintain actions of any kind in the

courts”; “to take, hold and dispose of property”; to be “exempt[]

from higher taxes or impositions than are paid by the other citizens

of the state”; and to participate in “the elective franchise, as regu-

lated and established by the laws or constitution of the state in

which it is to be exercised.” Id. at 552.

But that wasn’t all. Justice Washington recognized that pro-

tected privileges and immunities included “[t]hese, and many oth-

ers which might be mentioned.” Id.

Still, those privileges and immunities did not include oyster

harvesting. The oyster beds at issue were peculiar to New Jersey.

Id. So a right to access them was neither common to all Americans

9 Justice Washington’s qualification that these rights are “subject nevertheless

to such restraints as the government may justly prescribe for the general good

of the whole,” Corfield, 6 F. Cas. at 552, does not undermine the notion that

unenumerated, fundamental rights operate as a limitation on government au-

thority. Rather, Justice Washington’s statement comports with the under-

standing that legislatures could regulate but not abridge people’s rights, a dis-

tinction that turned, in part, on the subject matter of the purported regulation.

See supra note 4; infra Section II; Baude, Campbell & Sachs, supra, at 1196–99,

1237–38. After all, “[n]o fundamental right—not even the First Amendment—

is absolute.” McDonald v. City of Chicago, 561 U.S. 742, 802 (2010) (Scalia, J.,

concurring).

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nor inherent in our system of governance. See id. (explaining citi-

zens of the several states are not entitled to participate in rights

“which belong exclusively to the citizens of any other particular

state”). In fact, history and common-law authorities confirmed

that states generally held exclusive rights to certain public re-

sources, like oysters. Id. (quoting 2 HUGO GROTIUS, THE RIGHTS OF

WAR AND PEACE, ch. 2, § 5). Simply, the right to farm them was

one of the “advantages” that states by positive law “secured to their

own citizens.” Id.; see also Baldwin v. Fish & Game Comm’n, 436 U.S.

371, 387 (1978) (“[W]hen [Justice Washington] considered the reach

of the Privileges and Immunities Clause, [he] included in his list of

situations, in which he believed the States would be obligated to

treat each other’s residents equally, only those where a nonresident

sought to engage in an essential activity or exercise a basic right.”).

I pause to emphasize the distinction Justice Washington

made. He interpreted the Privileges and Immunities Clause to pro-

tect the “various preexisting and customary rights already in place

at the Founding” as well as rights the people “withheld from the

government . . . when government was established.” AMAR,

AMERICA’S UNWRITTEN CONSTITUTION, supra, at 108–09 (discussing

plausible interpretations of the Ninth Amendment). That is, Jus-

tice Washington understood the Privileges and Immunities Clause

to protect rights of “general citizenship,” Butler v. Farnsworth, 4 F.

Cas. 902, 903 (C.C.E.D. Pa. 1821) (No. 2,240) (Washington, Circuit

Justice), inherent in all “free Republican governments,” Calder, 3

U.S. (3 Dall.) at 388 (opinion of Chase, J.).

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24 ROSENBAUM, J., Concurring 23-10385

Indeed, many of the Corfield rights are not enumerated in

the Constitution, but we continue to subject laws that burden them

to heightened scrutiny precisely because they concern “fundamen-

tal matter[s] in a free and democratic society,” Reynolds v. Sims, 377

U.S. 533, 561–62 (1964) (right of suffrage), 10 or issues that are “suf-

ficiently basic to the livelihood of the Nation,” United Bldg. & Con-

str. Trades Council v. Mayor and Council of Camden, 465 U.S. 208, 219,

221 (1984) (quoting Baldwin, 436 U.S. at 383) (pursuit of a common

calling in the various states).

In contrast, when governments guarantee a claimed right

under only some circumstances—such that we can say the right is

not truly common to all free governments—we generally defer to

regulations of that purported right that require “each citizen to so

10 Justice Washington’s mention of voting rights underscores another similar-

ity between Antebellum jurisprudence and our current doctrine. Justice

Washington recognized that states may prescribe regulations on rights to suf-

frage, Corfield, 6 F. Cas. at 552; see U.S. CONST. art. I, § 2, cl. 1, but posited that

the Privileges and Immunities Clause could bar deprivations of the franchise

to those otherwise-eligible individuals who moved from another state, see Ab-

bot v. Bayley, 23 Mass. 89, 92 (1827). This understanding correlates with mod-

ern doctrine’s recognition that, although Americans don’t have the right to

vote for every government office, “once the franchise is granted to the elec-

torate, lines may not be drawn which are inconsistent with the Equal Protec-

tion Clause of the Fourteenth Amendment.” Harper v. Virginia Bd. of Elections,

383 U.S. 663, 665 (1966). So for instance, a state would abridge a citizen’s fun-

damental right to vote by imposing unduly restrictive residency requirements

on suffrage. See, e.g., Carrington v. Rash, 380 U.S. 89, 96 (1965); Dunn v. Blum-

stein, 405 U.S. 330, 360 (1972).

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conduct himself . . . as not unnecessarily to injure another.” Munn,

94 U.S. at 124.

And modern jurisprudence adopts this way of distinguishing

between fundamental and non-fundamental rights. See, e.g., Meyer

v. Nebraska, 262 U.S. 390, 403 (1923) (overturning a conviction for

teaching German because “[n]o emergency has arisen which ren-

ders knowledge by a child of some language other than English so

clearly harmful as to justify its inhibition with the consequent in-

fringement of rights long freely enjoyed”). As Section I.C. of this

Concurrence explains, the Fourteenth Amendment’s drafters relied

heavily on Corfield’s conception of fundamental rights in crafting

Section One of that amendment. The drafters considered funda-

mental those rights that people throughout the several states “have,

at all times, . . . enjoyed.” Corfield, 6 F. Cas. at 551. And now, to

identify whether a claimed right is fundamental, our current sub-

stantive-due-process jurisprudence calls for such an analysis of

trends across jurisdictions. So Corfield shows that modern funda-

mental-rights doctrine generally secures those rights our Founders

intended for the courts to protect.

Returning to the two circumstances in which courts adjudi-

cated fundamental-rights claims in Antebellum times, the second

circumstance occurred when parties invoked diversity jurisdiction.

Diversity jurisdiction enabled federal courts to resolve claims on

non-federal grounds. So plaintiffs could petition federal courts to

review state legislative actions that they thought improperly

abridged their fundamental rights. See Laurence H. Tribe,

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26 ROSENBAUM, J., Concurring 23-10385

Substantive Due Process, in 5 ENCYCLOPEDIA OF THE AMERICAN

CONSTITUTION 2570 (Leonard W. Levy & Kenneth L. Karst eds.,

2000).

Terrett v. Taylor offers a good example of this. 13 U.S. (9

Cranch) 43 (1815). There, Justice Story denied Virginia’s attempt

to seize land that Virginia’s colonial government had granted to the

Episcopal Church. Id. at 43, 50–52. Although no state constitu-

tional provision barred Virginia’s legislation, the Court struck it

down as “utterly inconsistent with a great and fundamental princi-

ple of a republican government.” Id. at 50–51.

Terrett’s resolution and its reasoning mirrored those of the

“vested-rights” cases in which the Supreme Court enforced unwrit-

ten limitations on states’ legislative authority over property. In

Fletcher v. Peck, for instance, “the unanimous opinion of the court”

confirmed that Georgia could not revoke its prior land grants “ei-

ther by general principles which are common to our free institu-

tions, or by the particular provisions of the constitution of the

United States.” 10 U.S. (6 Cranch) 87, 139 (1810) (opinion of Mar-

shall, C.J.); see also id. at 132 (opinion of Johnson, J.) (“I do not hes-

itate to declare that a state does not possess the power of revoking

its own grants. But I do it on a general principle, on the reason and

nature of things . . . .”).

And in Wilkinson v. Leland, Justice Story affirmed the princi-

ples set forth in Taylor. He explained the “fundamental maxims of

a free government seem to require, that the rights of personal lib-

erty and private property should be held sacred,” so no legislative

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act could “transfer the property of A. to B. without his consent.”

Wilkinson, 27 U.S. (2 Pet.) at 657. Indeed, “no [such] case . . . has

ever been held a constitutional exercise of legislative power in any

state in the union.” Id. And that principle has been firmly estab-

lished by the Court since Calder v. Bull. See 3 U.S. (3 Dall.) at 388

(opinion of Chase, J.) (“[A] law that takes property from A. and

gives it to B . . . is against all reason and justice, for a people to

entrust a Legislature with [such] powers”).

To be sure, some contested the reasoning of these decisions.

See id. at 399 (opinion of Iredell, J.) (“[T]he Court cannot pro-

nounce [a legislative act] to be void, merely because it is, in their

judgment, contrary to the principles of natural justice.”). But those

views were outliers at the time. Frederick Mark Gedicks, An

Originalist Defense of Substantive Due Process: Magna Carta, Higher-

Law Constitutionalism, and the Fifth Amendment, 58 EMORY L.J. 585,

651 (2009). And even those jurists acknowledged that unenumer-

ated rights ought to at least inform their reading of statutes. See,

e.g., Minge v. Gilmour, 17 F. Cas. 440, 444 (C.C.D.N.C. 1798) (No.

9,631) (Iredell, Circuit Justice).

Plus, others who disfavored applying unenumerated funda-

mental rights as a matter of federal law acknowledged their force

when a plaintiff invoked the federal courts’ diversity jurisdiction.

See, e.g., Citizens’ Sav. & Loan Ass’n v. City of Topeka, 87 U.S. (20

Wall.) 655, 662–63 (1875) (Miller, J.) (“[T]here are such rights in

every free government beyond the control of the State. . . . There

are limitations on such power which grow out of the essential

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28 ROSENBAUM, J., Concurring 23-10385

nature of all free governments. Implied reservations of individual

rights, without which the social compact could not exist, and which

are respected by all governments entitled to the name.”). So these

disagreements stemmed from a perceived lack of federal authority

to enforce unenumerated fundamental rights, at least in some

cases. But as I discuss later, the Fourteenth Amendment dispelled

that misguided perception.

Ultimately, it’s unsurprising that each of these vested-rights

cases sounds in the unenumerated-rights language state courts em-

ployed in enforcing the rights that the Takings Clause embodies.11

And we can say the same thing about Justice Washington’s ap-

proach to fundamental rights in Corfield; his opinion applies the

same principles that drove state courts to apply substantive Bill-of-

11 The fundamental-rights rationale pervaded vested-rights cases in state

courts as well. See, e.g., Regents of the Univ. of Md. v. Williams, 9 G. & J. 365, 408

(Md. 1838) (“And independently of the constitution of the United States, and

of this state, that act is void as opposed to the fundamental principles of right

and justice, inherent in the nature and spirit of the social compact.”); White v.

White, 4 How. Pr. 102, 111 (N.Y. Sup. Ct. 1849) (“[T]he security of the citizen

against such arbitrary legislation rests upon the broader and more solid ground

of natural rights, and is not wholly dependent upon these negatives upon the

legislative power contained in the constitution. . . . The exercise of such a

power is incompatible with the nature and objects of all governments, and is

destructive to the great end and aim for which government is instituted, and

is subversive of the fundamental principles upon which all free governments

are organized.”); Currie’s Adm’rs v. Mut. Assur. Soc’y, 14 Va. (4 Hen. & M.) 315,

438–39 (1809) (“[The] legislature is bounded . . . by the principles and provi-

sions of the constitution and bill of rights, and by those great rights and prin-

ciples, for the preservation of which all just governments are founded.”).

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Rights protections. These cases reflect the dominant jurisprudence

of the Antebellum period: Both state and federal courts, when con-

fronted with alleged abridgments of fundamental rights, consid-

ered whether the claimed state action burdened a liberty interest

that our system of government inherently protects. Both sets of

courts asked whether the people implicitly withheld the claimed

right at the formation of government, whether the right was com-

mon to Americans across the several states, and whether it had

been historically subject to government regulation or abridgment.

If these considerations sound familiar, it’s because they are.

As I discuss further in Section II, they are essentially the same in-

quiries we conduct under modern substantive-due-process doc-

trine.

The key distinction between our modern jurisprudence and

that of the Antebellum period is that, during the Antebellum pe-

riod, the federal government did not enjoy the same authority it

later gained to guarantee Americans’ fundamental rights. But as

the next section shows, the drafters of the Fourteenth Amendment

expanded that authority.

C. Americans ratified the Fourteenth Amendment to ensure the fed-

eral government, including its courts, would secure unenumerated

fundamental rights against state abridgment.

The drafters of the Fourteenth Amendment intended to

make more readily available federal enforcement of Americans’

fundamental rights. As I’ve mentioned, until that time, the Consti-

tution and Bill of Rights generally did not open federal courts to

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30 ROSENBAUM, J., Concurring 23-10385

fundamental-rights claims. “Under Article IV’s Privileges and Im-

munities Clause, Corfield rights were enforceable only by out-of-

state citizens,” and “under Barron, the rights set out in the first eight

amendments were enforceable only against the federal govern-

ment. Congress thus lacked broader power to secure general fun-

damental rights against state abridgment.” Baude, Campbell &

Sachs, supra, at 1218; see CONG. GLOBE, 39th Cong., 1st Sess. 2765

(1866) (statement of Sen. Jacob Howard). Of course, that was a

feature of the Framers’ constitutional design; the Framers assumed

states would secure their citizens’ fundamental rights.

But by the Civil War, practice had proven that wasn’t neces-

sarily the case. So although the Constitution and Bill of Rights de-

clared some of the fundamental rights guaranteed to the people,

individuals could not depend on an ability to enforce those rights.

As Representative John Bingham, the main drafter of the Four-

teenth Amendment, summarized,

No State ever had the right, under the forms of law

or otherwise, to deny to any freeman the equal

protection of the laws or to abridge the privileges

or immunities of any citizen of the Republic, alt-

hough many of them have assumed and exercised the

power, and that without remedy.

CONG. GLOBE, 39th Cong., 1st Sess. 2542 (1866) (statement

of Rep. John Bingham) (emphasis added).

The Georgia Supreme Court offers a good example of the

trend John Bingham observed. In the mid-1840s, that tribunal

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secured many individual rights that Georgia’s constitution had not

enumerated. See, e.g., Nunn, 1 Ga. at 249, 251 (right to bear arms,

as well as other Bill-of-Rights guarantees); McKenzie, 3 Ga. at 41–42

(takings). But by 1848, the Court clarified that “[f ]ree persons of

color” did not possess many of those rights, as they were not “citi-

zens.” Cooper v. City of Savannah, 4 Ga. 68, 72 (1848). So, the court

held, they were “not entitled to bear arms, vote for members of the

legislature, or to hold any civil office.” Id.

And Cooper was part of a larger trend; other states’ supreme

courts routinely ratified their state’s denials of Black Americans’

fundamental rights. See, e.g., Amy v. Smith, 11 Ky. (1 Litt.) 326, 334

(1822) (upholding law restricting free Black Americans’ right to file

lawsuits); Indiana v. Cooper, 5 Blackf. 258, 259 (Ind. 1839) (upholding

law requiring bond for free Black Americans traveling in the state);

Nelson v. Illinois, 33 Ill. 390, 395 (1864) (upholding law excluding free

Black Americans from “emigration” to and “settlement in” Illi-

nois). Indeed, this trend perhaps reached its awful apex in the no-

torious U.S. Supreme Court case Dred Scott v. Sandford. 60 U.S. (19

How.) 393 (1857) (holding that the Constitution did not extend

American citizenship, with its attendant rights and privileges, to

Black Americans and that slaves are “property” within the meaning

of the Due Process Clause).

Most prominently, the states involved in this trend and this

line of cases denied the fundamental rights that the Civil Rights Act

of 1866 aimed to secure: namely, Black Americans’ rights “to make

and enforce contracts, to sue, be parties, and give evidence, to

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32 ROSENBAUM, J., Concurring 23-10385

inherit, purchase, lease, sell, hold, and convey real and personal

property, and to full and equal benefit of all laws and proceedings

for the security of person and property . . . .” Ch. 31, § 1, 14 Stat.

27 (codified as amended at 42 U.S.C. §§ 1981(a), 1982).

But the Fourteenth Amendment’s drafters expressed out-

rage at these deprivations. They were concerned because Black

Americans had been denied equal rights. And they also clarified

that the federal government should play a role in enforcing all

Americans’ fundamental rights. After all, fundamental rights are

“certain absolute rights which pertain to every citizen, which are

inherent, and of which a State cannot constitutionally deprive

him.” CONG. GLOBE, 39th Cong., 1st Sess. 1833 (1866) (statement

of Rep. William Lawrence) (emphasis added); see id. at 1757 (state-

ment of Sen. Lyman Trumbull) (explaining the Civil Rights Act se-

cures “inherent, fundamental rights which belong to free citizens

or free men in all countries, . . . and they belong to them in all the

States of the Union”).

Crucially, the Fourteenth Amendment’s drafters understood

fundamental rights to encompass more than those that the Consti-

tution’s first eight amendments identify. They invoked the social-

contract precepts that animated the Framers’ view of Americans’

fundamental rights. See, e.g., id. at 1118 (statement of Rep. James

Wilson) (explaining the rights of “general citizenship” are those

that “a citizen does not surrender because he may happen to be a

citizen of the State which would deprive him of them . . . .”).

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In fact, they often referenced Corfield’s broad understanding

of fundamental rights. See, e.g., id. at 1117–18 (statement of Rep.

James Wilson) (quoting 6 F. Cas. at 551–52); id. at 2765 (statement

of Sen. Jacob Howard) (same); see also JOHN HART ELY, DEMOCRACY

AND DISTRUST 29 (1980) (confirming the Fourteenth Amendment’s

“framers repeatedly adverted to the Corfield discussion as the key

to what they were writing”). So perhaps it’s unsurprising that Sec-

tion 1 of the Fourteenth Amendment, which, among other things,

prohibits states from “depriv[ing] any person of life, liberty, or

property, without due process of law,” echoes Corfield’s recognition

of the right to “[p]rotection by the government; the enjoyment of

life and liberty, with the right to acquire and possess property of

every kind, and to pursue and obtain happiness and safety,” 6 F. Cas.

at 551–52.

And the Framers of the Fourteenth Amendment near-uni-

versally employed the broad language characteristic of fundamen-

tal-rights jurisprudence—not just of the jurisprudence of their

time but also of ours. Compare CONG. GLOBE, 39th Cong., 1st Sess.

3031 (1866) (statement of Sen. John Henderson) (“the rights that

attach to citizenship in all free Governments”), id. at 1833, 1836

(statement of Rep. William Lawrence) (rights that are “inherent in

every citizen of the United States” and “exist anterior to and inde-

pendently of all laws and all constitutions”), and id. at 1089 (state-

ment of Rep. John Bingham) (rights “universal and independent of

all local State legislation”), with Holden v. Hardy, 169 U.S. 366, 389

(1898) (rights “which inhere in the very idea of free government”),

Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (rights which are “so

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34 ROSENBAUM, J., Concurring 23-10385

rooted in the traditions and conscience of our people as to be

ranked as fundamental”), overruled by Malloy v. Hogan, 378 U.S. 1

(1964), and Palko v. Connecticut, 302 U.S. 319, 325 (1937) (rights

which strike at the “very essence of a scheme of ordered liberty”),

overruled by Benton v. Maryland, 395 U.S. 784 (1969).

In other words, the Fourteenth Amendment’s drafters, in ex-

plaining their intent, conveyed that Americans are entitled to a set

of fundamental rights, which “cannot be fully defined in their en-

tire extent and precise nature” but to which “should be added the

personal rights guaranteed and secured by the first eight amend-

ments of the Constitution.” CONG. GLOBE, 39th Cong., 1st Sess.

2765 (1866) (statement of Sen. Jacob Howard) (emphasis added);

see id. (“[H]ere is a mass of privileges, immunities, and rights, some

of them secured by the second section of the fourth article of the

Constitution, which I have recited, some by the first eight amend-

ments of the Constitution.” (emphasis added)).

To that end, Representative Bingham proposed a constitu-

tional amendment to secure federal enforcement of those rights.

Echoing Antebellum jurisprudence, he noted that, although the

Framers assumed Americans enjoyed a set of fundamental rights

that no state could deny, “[a] grant of power . . . is a very different

thing from a bill of rights.” Id. at 1093 (statement of Rep. John

Bingham). Before the Fourteenth Amendment, fundamental

rights largely were not federally enforceable rights. And the federal

government could ensure they became so only if an amendment

“vested [the federal government] with power to hold [the states] to

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answer before the bar of national courts.” Id. at 1090 (statement of

Rep. John Bingham).

As the Supreme Court later confirmed, “one of the primary

purposes . . . of the Fourteenth Amendment was . . . to eliminate

doubt as to the constitutional validity of the Civil Rights Act as ap-

plied to the States.” Hurd v. Hodge, 334 U.S. 24, 32–33 (1948). In

other words, the Fourteenth Amendment sought to end any ques-

tion of the constitutionality of federal civil-rights legislation. The

drafters were concerned at the time about the Civil Rights Act’s

private right of action, which secured a federal forum for plaintiffs

to enforce their rights, ch. 31, § 3, 14 Stat. 27 (1866) (codified as

amended at 42 U.S.C. § 1988). But the Fourteenth Amendment also

ensured the constitutionality of the legislation that followed it, in-

cluding 42 U.S.C. § 1983, see Ku Klux Klan Act of 1871, ch. 22, 17

Stat. 13 (codified as amended at 42 U.S.C. §§ 1983, 1985–1986). 12

12 Although the Fourteenth Amendment sought to enable Congress to enact

private rights of action, Congress may “enforce” the Fourteenth Amendment

through other means, too. U.S. CONST. amend. XIV, § 5. The Fourteenth

and Fifteenth Amendments’ drafters understood each amendment’s enforce-

ment section to implement the expansive language of McCulloch v. Maryland.

See CONG. GLOBE, 39th Cong. 1st Sess. 1118 (1866) (remarks of Rep. James

Wilson) (quoting 17 U.S. (4 Wheat.) 316, 421 (1819)). So the Reconstruction

Amendments support “broad congressional power to administer strong and

even selective medicine to individual states” that have often abridged Ameri-

cans’ fundamental rights. Akhil Reed Amar, The Lawfulness of Section 5 — and

Thus of Section 5, 126 HARV. L. REV. F. 109, 114 (2013) (emphasis omitted). For

instance, Congress may “enact reasonably prophylactic remedial legislation,”

Tennessee v. Lane, 541 U.S. 509, 523 (2004), and, when necessary, even require

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36 ROSENBAUM, J., Concurring 23-10385

After rounds of revision, Representative Bingham intro-

duced a version of the Fourteenth Amendment that resembled its

final form. That revision’s Section One includes precisely the same

second sentence as the one in the version of the Fourteenth

Amendment that Congress ultimately ratified:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property without due pro-

cess of law; nor deny to any person within its juris-

diction the equal protection of the laws.

CONG. GLOBE, 39th Cong., 1st Sess. 2542 (1866) (statement

of Rep. John Bingham). As Bingham introduced it, he emphasized

that “[t]he necessity for the first section of this amendment . . . is

one of the lessons that have been . . . taught to all the people of this

country by the history of the past four years of terrific conflict.”

Id. “[T]hat is, to protect by national law the privileges and immunities

of all the citizens of the republic and the inborn rights of every per-

son within its jurisdiction whenever the same shall be abridged or

denied by the unconstitutional acts of any State.” Id. (emphases

added). Simply, the drafters intended, and Americans understood,13

that states preclear certain laws with the federal government, see South Caro-

lina v. Katzenbach, 383 U.S. 301, 330 (1966).

13 Recent scholarship has shown that the Congressional Globe is highly probative

not just of legislative intent but also the public meaning of the Fourteenth

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the Fourteenth Amendment to enable federal courts to protect all

fundamental rights, not just those enumerated in the Constitu-

tion’s amendments. Indeed, the text of the amendment reflects

that on its face.

After all, Section One purposely employs expansive lan-

guage. Had the drafters envisioned a narrow conception of Amer-

icans’ liberties, they would have listed or referred to those the Bill

of Rights protects. Instead, they recognized that Americans’ rights

“cannot be fully defined in their entire extent and precise nature.”

Id. at 2765 (statement of Sen. Jacob Howard). The drafters “did not

presume to know the extent of freedom in all of its dimensions,”

so they used broad but clear terms to “entrust[] to future genera-

tions a charter protecting the right of all persons to enjoy liberty as

we learn its meaning.” Obergefell v. Hodges, 576 U.S. 644, 664 (2015).

Our duty to secure Americans’ fundamental rights inheres in the

Constitution’s text and history.

Amendment. See Rachel A. Shelden, Finding Meaning in the Congressional Globe:

The Fourteenth Amendment and the Problem of Constitutional Archives, 2 J. AM.

CON. HIST. 715, 730–33 (2024). The Globe seldom contained speeches made to

an invested congressional audience; instead, it reprinted curated addresses that

representatives wished to make to their constituents. Id. at 727–30. So it offers

a unique snapshot of “a congressman’s sense of what mattered to people in

their home districts,” id. at 731, and therefore reflects part of an “expressive of

a feedback loop in which constituents and their representatives conveyed their

views to one another,” id. at 732.

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38 ROSENBAUM, J., Concurring 23-10385

* * *

Ultimately, our modern doctrine successfully discharges that

duty. To be sure, the Supreme Court has concluded it does so un-

der the Due Process Clause instead of the Privileges or Immunities

Clause. See McDonald v. City of Chicago, 561 U.S. 742, 758–59 (2010)

(plurality opinion); cf. Slaughter-House Cases, 83 U.S. 36, 79 (1872)

(Miller, J.) (interpreting the Privileges or Immunities clause to cover

only rights peculiar to federal citizenship). But the only conclusion

that the Founding, Antebellum, and Reconstruction history sup-

ports is that our modern rights jurisprudence (which enforces fun-

damental but unenumerated rights) accurately reflects our Found-

ers’ intentions, regardless of the textual hook. Cf. Dobbs v. Jackson

Women’s Health Org., 597 U.S. 215, 240 n.22 (2022) (quoting Corfield,

6 F. Cas. at 551–52).

So most respectfully, the common refrain that “substantive

due process” is oxymoronic, see, e.g., Sosa, 57 F.4th at 1306; Eknes-

Tucker v. Governor of Alabama, 114 F.4th 1241, 1244 (11th Cir. 2024)

(Pryor, C.J., respecting the denial of rehearing en banc), misses the

point. Perhaps homing the protection of fundamental rights in the

Due Process Clause instead of the Privileges or Immunities Clause

leaves room for debate. 14 But homing them somewhere in the Con-

stitution does not.

14 My point is a pretty narrow one: if the Court is interpreting the Due Process

Clause in accordance with Americans’ intentions when they ratified the Four-

teenth Amendment, stare decisis requires consistency in our fundamental-

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Our doctrine sometimes imperfectly yet accurately captures

the Constitution’s text and its animating principles. See Gundy v.

United States, 588 U.S. 128, 166–67 (2019) (Gorsuch, J., dissenting)

(“When one legal doctrine becomes unavailable to do its intended

work, the hydraulic pressures of our constitutional system some-

times shift the responsibility to different doctrines.” (citing McDon-

ald, 561 U.S. at 758) (plurality opinion)). But that is not a reason to

abandon settled principles of constitutional jurisprudence.

The history is unambiguous. It shows beyond dispute that

the Constitution secures unenumerated rights and that the Consti-

tution includes textual provisions to advance that purpose. That

we interpret the Constitution to do so and to be faithful to the prin-

ciples that animated the Founders and Fourteenth Amendment rat-

ifiers is more important than which textual provision we read as

doing so.

rights jurisprudence. We can conclude that our current doctrine—though in

Judge Newsom’s considered view, homed in the incorrect constitutional

text—still accords with the original understanding of the Fourteenth Amend-

ment’s Section One. And we can also recognize that a doctrinal shift to the

Privileges or Immunities Clause may introduce to our fundamental-rights ju-

risprudence methodological or substantive error by destabilizing a century

and a half of law. Cf. Payne v. Tennessee, 501 U.S. 808, 827 (1991) (explaining

stare decisis “promotes the evenhanded, predictable, and consistent develop-

ment of legal principles . . . and contributes to the actual and perceived integ-

rity of the judicial process”). So without more, I am unconvinced that sub-

stantive due process—an accurate (yet purportedly imperfect) reflection of our

predecessors’ aims—is an approach to constitutional interpretation that we

should leave behind.

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40 ROSENBAUM, J., Concurring 23-10385

The important question, then, is not whether the Due Pro-

cess Clause is the proper textual hook for the doctrine. Rather, the

important question is whether our current doctrine protects, in es-

sence, the rights that Americans at the Founding and at the ratifi-

cation of the Fourteenth Amendment intended courts to secure

from government interference. And as Section II explains, I think

our current doctrine does.

II. Substantive due process sufficiently reflects the Found-

ers’ intentions of how courts would secure Americans’

fundamental rights.

The Fourteenth Amendment guarantees everyone due pro-

cess of law, opens the federal courts to claims of state deprivations

of fundamental rights, and enables the federal government to en-

force those protections.

And that brings me to the next point. As substantive due

process developed in the decades after the Fourteenth Amend-

ment’s ratification, fundamental-rights jurisprudence has more or

less matched the understandings Americans had at the Founding

and at the time the states ratified the Fourteenth Amendment.

The rest of this section proceeds in two parts. First, I review

today’s substantive-due-process doctrine. Then, I highlight the key

similarities between our doctrine and the principles our history il-

lustrates.

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A. Modern jurisprudence secures fundamental rights that are

deeply rooted in this nation’s history and tradition.

Today, when a plaintiff alleges a violation of their unenumer-

ated fundamental rights, we generally employ a two-step inquiry

under substantive due process to resolve the claim. At the first step,

we determine whether a right is “fundamental.” See Washington v.

Glucksberg, 521 U.S. 702, 710 (1997). And at the second, we scruti-

nize the government action either strictly or loosely depending on

whether the right asserted is fundamental.

If the right is fundamental, then we presume the govern-

ment action is wrongful, and the government must show its action

is “narrowly tailored to serve a compelling state interest.” Reno v.

Flores, 507 U.S. 292, 302 (1993). 15 But if the right is not fundamen-

tal, then we presume the government action lawful, and we uphold

the law as long as it is “rationally related to legitimate government

interests.” Glucksberg, 521 U.S. at 728. This rational-relation test is

particularly light-handed—much like a “sieve,” Eknes-Tucker, 114

F.4th at 1296 (Rosenbaum, J., dissenting from the denial of

15 Alternatively, Supreme Court precedent has suggested that a regulatory tra-

dition may establish the constitutionality of a law. See United States v. Rahimi,

602 U.S. 680, 691 (2024) (explaining “if a challenged regulation fits within [our

regulatory] tradition, it is lawful”); Jackman v. Rosenbaum Co., 260 U.S. 22, 31

(1922) (“If a thing has been practiced for two hundred years by common con-

sent, it will need a strong case for the Fourteenth Amendment to affect it.”).

So even if a plaintiff establishes at step one of our fundamental-rights analysis

that the constitution protects “a liberty interest . . . generally speaking, that

must give way when there is a tradition denying the specific application of that

general interest.” Kerry v. Din, 576 U.S. 86, 95 (2015) (plurality opinion).

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42 ROSENBAUM, J., Concurring 23-10385

rehearing en banc)—because we sustain the government’s action if

“there is any reasonably conceivable state of facts that could pro-

vide a rational basis” for it. FCC v. Beach Commcn’s, Inc., 508 U.S. 307,

313 (1993); see Williamson v. Lee Optical of Oklahoma Inc., 348 U.S.

483, 488 (1955).

That is not to say rational-basis review is completely tooth-

less. Courts have stricken action a government has taken under a

mere “pretext of executing its powers.” McCulloch, 17 U.S. (4

Wheat.) at 423. Typically, we have done so when the facts reveal

that a government’s claim to regulate for the public welfare is just

a pretext for its true, “bare . . . desire to harm a politically unpopular

group.” USDA v. Moreno, 413 U.S. 528, 534 (1973); accord Zobel v.

Williams, 457 U.S. 55, 61–63 (1982); City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 446–47 (1985); Romer v. Evans, 517 U.S. 620, 635

(1996). But these cases are few and far between.

The upshot of the difference between strict and rational-ba-

sis scrutiny, then, is that the most important substantive-due-pro-

cess question is whether the claimed right is “fundamental.” After

all, the answer to that question often predicts whether the chal-

lenged law will stand or fall.

To determine whether a right qualifies as “fundamental,” we

assess whether the right is “deeply rooted in this Nation’s history

and tradition, and implicit in the concept of ordered liberty, such

that neither liberty nor justice would exist if they were sacrificed.”

Glucksberg, 521 U.S. at 721 (cleaned up). One way to ascertain that

a right is “deeply rooted in this Nation’s history and tradition” or

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“implicit in the concept of ordered liberty” is its enumeration in

the first eight amendments. See Dobbs, 597 U.S. at 237.

But the Due Process Clause does not protect those rights

merely “because [they] are enumerated in the first eight Amend-

ments”; it does so at least largely because those rights are “of such

a nature that they are included in the conception of due process of

law.” Twining v. New Jersey, 211 U.S. 78, 99 (1908), overruled by Mal-

loy, 378 U.S. at 6; see Hurtado v. California, 110 U.S. 516, 538 (1884)

(declining to incorporate the Fifth Amendment right to a grand-

jury indictment). So the bottom-line inquiry for any right the Four-

teenth Amendment secures, enumerated or unenumerated, is

whether “our Nation’s history, legal traditions, and practices” con-

firm that it is deeply rooted and implicit in our concept of ordered

liberty. Glucksberg, 521 U.S. at 710; cf. Poe v. Ullman, 367 U.S. 497, 554

(1961) (Harland, J., dissenting) (“[C]onclusive, in my view, is the ut-

ter novelty of this enactment.”).

When we conduct this inquiry, we often begin with the Eng-

lish common law or, in some cases, even further back with the

right’s “ancient origins.” Obergefell, 576 U.S. at 659 (discussing mar-

riage). Core legal documents (such as the Magna Carta), parlia-

mentary acts, and landmark British cases often supply the relevant

principle or applicable rule of decision at common law. See, e.g.,

Hurtado, 110 U.S. at 522 (citing the Magna Carta); Slaughter-House

Cases, 83 U.S. at 65–66 (explaining “the Parliament of Great Britain

. . . continued to grant to persons and corporations exclusive privi-

leges,” just like Louisiana did to the slaughter-house at issue). And

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44 ROSENBAUM, J., Concurring 23-10385

often, old legal treatises make an appearance—mostly from the re-

curring cast of Bracton, Coke, Hale, and Blackstone—to solidify

our understanding of the prevailing legal norms. See, e.g., Hurtado,

110 U.S. at 522; Glucksberg, 521 U.S. at 710–12; Obergefell, 576 U.S. at

659–60; Dobbs, 597 U.S. at 272.

We rely on these sources because the Framers assumed that

Americans enjoyed many of the same “guaranties and immunities

which we had inherited from our English ancestors.” Robertson,

165 U.S. at 281. But we have noted their limits as well: “The com-

mon law, of course, developed over time,” and the Framers did not

import English common law wholesale. New York State Rifle & Pis-

tol Ass’n v. Bruen, 597 U.S. 1, 35 (2022). So a “long, unbroken line of

common-law precedent stretching from Bracton to Blackstone is

far more likely to be part of our law than a short-lived, 14th-century

English practice.” Id.

Next in our inquiry, we usually survey state and federal law

relating to the claimed right at the Founding or the ratification of

the Fourteenth Amendment. For instance, in declaring that the

Due Process Clause incorporated the Eighth Amendment’s protec-

tion against excessive fines, the Supreme Court found that (a) at the

time of the Founding, “the constitutions of eight States—account-

ing for 70% of the U.S. population—forbade excessive fines,” and

(b) in 1868, “upon ratification of the Fourteenth Amendment,” the

“constitutions of 35 of the 37 States—accounting for over 90% of

the U.S. population—expressly prohibited excessive fines.” Timbs v.

Indiana, 586 U.S. 146, 152 (2019); see also Glucksberg, 521 U.S. at 713–

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16 (surveying the development of American legislation about sui-

cide in rejecting a claim that a right to end one’s life is fundamen-

tal).

But constitutional provisions and statutes are not the only

sources of law we review—any source probative of our actual “le-

gal traditions and practices” can be helpful. See AMAR, AMERICA’S

UNWRITTEN CONSTITUTION, supra, at 103 (“Simply put, many of

the . . . rights of the people . . . may be found in everyday American

life—in the practices of ordinary Americans as they go about their

affairs and in patterns of laws and customs across the land.”). So

for instance, we note how often executive officials or the courts

protected a claimed right, as well as how often they enforced any

purported prohibitions on that right. See, e.g., Lawrence v. Texas, 539

U.S. 558, 569 (2003) (recognizing sodomy laws were rarely “en-

forced against consenting adults acting in private”). We also con-

sider newspapers, periodicals, or other materials that show that

Americans “widely held” a particular view about the claimed right.

See, e.g., Heller, 554 U.S. at 615 (relying on “an editorial” to deter-

mine the Second Amendment’s scope).

These authorities are important because they reveal the un-

derstandings of “those who ratified and adopted the relevant con-

stitutional provision.” Nat’l Rifle Ass’n v. Bondi, 61 F.4th 1317, 1322

(11th Cir.), reh’g en banc granted, opinion vacated, 72 F.4th 1346 (11th

Cir. 2023). So they offer insight into the rights the people under-

stood the Fourteenth Amendment to protect when they voted for

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46 ROSENBAUM, J., Concurring 23-10385

it. And that provides a substantial “claim to democratic legitimacy”

when we declare government action invalid. Id.

Besides evidence from the Founding and Reconstruction, in

determining whether a right is fundamental, we also look to mod-

ern statutory and constitutional trends among states, as well as

other sources probative of the current, prevailing legal practices.

Often, our review confirms the conclusion we gleaned from the

historical materials. See, e.g., Timbs, 586 U.S. at 153 (“Today, ac-

knowledgment of the right’s fundamental nature remains wide-

spread.”); Glucksberg, 521 U.S. at 719 (“[T]he States are currently en-

gaged in serious, thoughtful examinations of physician-assisted su-

icide and other similar issues.”). But other times, it highlights a

radical departure from antiquated ideals. See Obergefell, 576 U.S. at

664.

And that departure may deserve recognition. Legal norms

at common law, at the time of the Founding, and at the ratification

of the Fourteenth Amendment are imperfect proxies of the rights

the “people” retained. After all, not all the “people” could vote to

ratify the Constitution or adopt the Fourteenth Amendment.

Women couldn’t vote until two decades into the 20th century. See

Minor v. Happersett, 88 U.S. 162, 171 (1874); U.S. CONST. amend. XIX;

see also Dobbs, 597 U.S. at 372–73 (Breyer, J., dissenting). And it

wasn’t until a century after the ratification of the Fourteenth

Amendment that we legislatively ensured non-whites’ access to the

franchise. See Voting Rights Act of 1965, Pub. L. No. 89-110, 79

Stat. 437 (codified as amended at 52 U.S.C. §§ 10101, 10301–14,

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23-10385 ROSENBAUM, J., Concurring 47

10501–08, 10701–02). So more recent laws, practices, and under-

standings can provide a much-needed view of what rights all the

people “retained.”

But more to the point, such an inquiry recognizes that “[t]he

nature of injustice is that we may not always see it in our own

times.” Obergefell, 576 U.S. at 664. Those who “wrote and ratified

the Bill of Rights and the Fourteenth Amendment did not presume

to know the extent of freedom in all of its dimensions.” Id. They

used broad language and “entrusted to future generations a charter

protecting the right of all persons to enjoy liberty as we learn its

meaning.” Id.; see Ullman, 367 U.S. at 542 (Harlan, J., dissenting)

(“That tradition is a living thing.”). And rights that “only became

analytically clear or won recognition after the adoption of the

Ninth” and Fourteenth Amendments are still “covered by” their

“letter and spirit.” AMAR, AMERICA’S UNWRITTEN CONSTITUTION,

supra, at 108.

At bottom, each of these pieces of evidence informs our as-

sessment of whether a plaintiff’s claimed right is “fundamental.”

Our focus on these objective indicators of our history and tradition

helps guard against “roaming at large into the constitutional field”

while also ensuring that we do not wholesale forfeit the fundamen-

tal rights our Founders charged the judiciary with securing. Gris-

wold, 381 U.S. at 502 (Harlan, J., concurring).

B. Four similarities among modern fundamental-rights doctrine,

our founding principles, and historical practice show that mod-

ern substantive-due-process doctrine imposes limitations on

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48 ROSENBAUM, J., Concurring 23-10385

government that Americans voted for when they ratified the

Constitution and the Fourteenth Amendment.

In four ways, our fundamental-rights doctrine channels the

Founders’ intentions, and the people’s understandings, when they

declared “that the enumeration of certain rights in the Constitu-

tion does not deny or disparage those rights retained by the peo-

ple.” U.S. CONST. amend IX.

First, our general understanding of what makes a right fun-

damental is essentially the same as it was at the Founding. In other

words, our requirement that a fundamental right is “deeply rooted

in this Nation’s history and tradition” and “implicit in the concept

of ordered liberty” does not materially differ from the frameworks

we see in early caselaw. Whether those rights are described as “vital

principles in our free Republican governments,” Calder, 3 U.S. at

388 (opinion of Chase, J.), “privileges and immunities which . . .

belong, of right, to the citizens of all free governments,” Corfield, 6

F. Cas. at 551, or “[i]mplied reservations . . . , without which the so-

cial compact could not exist,” Loan Ass’n, 87 U.S. at 663, the opin-

ions all invoke the same concept: The people retained a class of

rights when we established our government, so “the power to vio-

late and disregard them” does not “lurk[] under any general grant

of legislative authority” or “general expressions of the will of the

people,” Wilkinson, 27 U.S. (2 Pet.) at 657.

Second, and relatedly, the justification for judicial enforce-

ment of those rights has endured from the Founding to today.

That is, the judiciary protects rights, at least under the Fourteenth

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Amendment, because they are “in their nature, fundamental,” Cor-

field, 6 F. Cas. at 551, not just because we enumerated some of them

in the Constitution.

To be sure, enumeration is one source of authority. But the

Founders, especially the Federalists, understood that base limits on

government action inhered in the social contract, so enumeration

was merely declaratory of rights that already limited government.

And the drafters of the Fourteenth Amendment understood

the same thing when they noted that Sections One and Five of that

amendment “establish[ed] no new right” but merely provided a

means for the federal government “to protect and enforce those

which already belong to every citizen.” CONG. GLOBE, 39th Cong.

1st Sess. 1117 (1866) (statement of Rep. James Wilson); id. at 1836

(statement of Rep. William Lawrence) (“[T]his bill creates no new

right, confers no new privilege, but is declaratory of what is already

the constitutional rights of every citizen in every State . . . .”). It’s

that principle that underwrites our modern caselaw—we protect

rights under the Fourteenth Amendment, at least in part, because

they are “of such a nature that they are included in the conception

of due process of law.” McDonald, 561 U.S. at 759 (plurality opin-

ion) (quoting Twining, 211 U.S. at 99). In other words, the promise

of “due process of law” is not a promise of process for the sake of

process; it’s a promise of process for the sake of ensuring our fun-

damental rights have practical meaning.

Third, the legal methodology—that is, the relevant historical

evidence and precedent—we use to determine whether a right is

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50 ROSENBAUM, J., Concurring 23-10385

fundamental has remained consistent. As early cases said, funda-

mental rights were those that “have, at all times, been enjoyed by

the citizens of the several states which compose this Union.” Cor-

field, 6 F. Cas. at 551; see also Loan Ass’n, 87 U.S. at 663 (“Implied

reservations of individual rights . . . are respected by all govern-

ments entitled to the name.”). So our current inquiry into prevail-

ing legal practices at the common law, across state governments,

and even other countries, matches our earliest instincts about what

made a right “fundamental.”

And that similarity is more than a coincidence. At both the

time of the Founding and ratification of the Fourteenth Amend-

ment, general law played a key role in the American legal system.

Its content “form[ed] the substratum of our laws.” United States v.

Burr, 25 F. Cas. 55, 77 (C.C.D. Va. 1807) (No. 14,693) (Marshall, Cir-

cuit Justice). And in many routine cases, it provided the “princi-

ple”—or the rule of decision—that “would obtain” in the “ab-

sence” of any applicable positive state or federal law. United States

v. Chambers, 291 U.S. 217, 226 (1934). So a reference to rights “re-

spected by all governments entitled to the name,” for instance, was

a reference to rights as the general law defines them. See Baude,

Campbell & Sachs, supra, at 1199 (“Lawyers and judges evinced the

general-law character of these fundamental rights not only by us-

ing terms like these but also by explicitly describing the rights as

shared among multiple jurisdictions.”).

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And when judges in our pre-Erie 16 days had to rely on the

general law to supply a rule of decision, they “found” the general

law in much the same way we now determine whether a right is

fundamental. They reviewed colonial, Founding, and Antebellum-

Era treatises and scholarly works; a study of the English common

law; and a catalog of relevant state-court decisions, among many

other probative sources. See, e.g., Swift v. Tyson, 41 U.S. (16 Pet.) 1,

19–22 (1842); Nichols v. Fearson, 32 U.S. (7 Pet.) 103, 109–12 (1833);

see also St. George Tucker, Appendix to 1 WILLIAM BLACKSTONE,

COMMENTARIES 430 (S. Tucker ed. & comm. 1803). And that review

included an assessment of how law has developed over time. See

Baude, Campbell & Sachs, supra, at 1248 (explaining the general

law “is shaped by legally recognized custom and practice; its con-

tours can change as those practices change”); Danielle D’Onfro &

16 In Erie Railroad Company v. Tompkins, 304 U.S. 64, 71 (1938), the Supreme

Court overturned Swift v. Tyson. Swift held that federal courts sitting in diver-

sity may, in the absence of a pertinent state statute, apply the general law to

commercial disputes. In other words, federal courts in diversity could use

“general reasoning and legal analogies” to determine “the just rule furnished

by the principles of commercial law to govern the case,” 41 U.S. (16 Pet.) at

19, even if state courts applied a different rule of decision. Erie, by contrast,

required federal courts sitting in diversity to interpret all state substantive law

as the “highest court” of a state would. 304 U.S. at 78. And in doing so, Erie

“overruled a particular way of looking at law which dominated the judicial

process” from the Founding to the beginning of the twentieth century. Guar.

Tr. Co. of N.Y. v. York, 326 U.S. 99, 101 (1945). State-court decisions were no

longer “merely evidence” of the proper rule of decision that a federal court

should apply but were now “the controlling formulations” of the applicable

law itself. Id.

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