Allow Me to Retort: A Black Guy’s Guide to the Constitution

by Elie Mystal

Substantive due process demands actual fairness, not just technical fairness. Predictably, conservatives hate it. Conservatives reject a view of the law that guarantees fairness. And conservatives hate unenumerated rights, because unenumerated rights could be whatever I (or five justices on the Supreme Court) say they are. Today I claim an unenumerated right to have eyes. Tomorrow I might claim an unenumerated right to reasonable accommodations should my sight be taken from me. In the future, I might claim an unenumerated right to have Geordi’s visor from Star Trek made available to me, free of charge, from a universal health care provider. “Where does it end?” asks the conservative jurist. What’s the point of winning the birth lottery if the government is just going to step in and level the playing field? Conservatives are always worried that protecting too many rights might one day lead to a society that’s fundamentally fair.