Rejecting Uncontrolled Authority Over the Body: The Decencies of Civilized Conduct, the Past and the Future of Unenumerated Rights

Abstract:     
When Roe v. Wade was decided, many constitutional scholars viewed it as a unique event, an aberrant invocation of unenumerated rights forged under the twin pressures of an occluded legislative process and women's urgent demands for reproductive autonomy. Three decades later, this critique is a less persuasive reading of the constitutional landscape.

A generation of constitutional development and a broader view of the sweep of constitutional history situates Roe as part of a pattern of decisions protecting the bodies of we the people against the violence and control of the state. The pattern does not appear clearly in most constitutional law casebooks, for it has been woven of parallel developments in several rubrics. Rights of prisoners under the Eighth Amendment, rights of the victims of police abuse under the Fourth Amendment and the due process clauses, and rights of bodily autonomy in medical contexts have combined to form a coherent constitutional practice. Notwithstanding the absence of a canonical theory, federal judges in the last generation have substantively confronted both brutal bureaucrats and callous legislators. In the course of those confrontations, they have elaborated an extratextual constitutional doctrine of moral minimalism that denies the state-even in pursuit of legitimate public ends-uncontrolled authority over the bodies of those who are subject to its power.

This Essay traces the development of this constitutional practice, and the norms, history and tradition that undergird it.

Keywords: Civil Rights, Constitutional law, Courts, Judges, Law & Society, Medical Jurisprudence, Politics, bodily autonomy, state violence, prisoner rights, Eighth Amendment, police abuse, due process, moral minimalism, Roe v. Wade, unenumerated rights

JEL Classifications: K19, K42

Accepted Paper Series