Abstract
INTRODUCTION: “In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” In Roe v. Wade, the Court considered a woman’s liberty right to decide whether to continue a pregnancy or have an abortion and recognized the constitutional validity of a liberty right to abortion as part of the right to privacy. In Roe, the Court concluded, “[o]nly personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ are included in the guarantee of a right of personal privacy.” Liberty should be “left to gather meaning from experience,” so as to reflect social changes and people’s needs because “the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.” However, in Dobbs v. Jackson Women’s Health Organization, which overturned Roe, the Court concluded that the right to abortion “is not deeply rooted in the Nation’s history and tradition,” and therefore, is not located in “this Nation’s ‘scheme of ordered liberty.” The meaning of liberty that is guaranteed by the Constitution is unstable, even in this modern era. The meaning of liberty has developed over time due to political, social, and economic changes in the United States and around the world. The Constitution’s meaning can evolve when it confronts the legitimate aspirations of autonomous citizens, and trust in the Constitution ensures the claims of those seeking new constitutional interpretations are heard, even when their opinions diverge from the existing interpretation at the time. In his article, Professor Hendrik Hartlog argues the values that groups rely on are shaped by constitutional consciousness, and that constitutional consciousness “began with the dream of an autonomous identity.” Throughout all of America’s history, from the emancipation arguments of Frederick Douglass to the right to bear arms claims by the National Rifle Association (“NRA”), we can see the roles of both the enduring values in the Constitution and the way that constitutional consciousness has evolved in response to changes in society and the will of the people. Both have shaped American values. The Declaration of Independence guaranteed inalienable liberties to American citizens, but depending on social class, the meanings of liberty and the definition of “We the People” have applied disparately to various groups. “Liberty” is individual autonomy as Frederick Douglass argued, self-determination as women suffragists demanded, the right to make a living how we desire as Franklin D. Roosevelt envisioned, and the right to protect ourselves as embodied in the right to bear arms. American values—materialized in the Declaration of Independence—have inspired not only American citizens, but people around the world to strive for a more inclusive future. This article examines the transcending meaning of liberty in the eras of Frederick Douglass, the women’s suffrage movement, Franklin D. Roosevelt (“Roosevelt”), and the NRA’s advocacy surrounding the right to bear arms. Then, this article addresses the Trump Administration’s recent executive orders that restrict transgender people’s freedoms that they had previously been entitled to. As a result of the recent attacks on the rights of transgender people, it is likely courts will decide more transgender-related lawsuits in the future, presumably focusing on the legitimacy of the Administration’s restrictions on transgender people’s rights under the Fourteenth Amendment. The Deeply Rooted Test, discussed in Dobbs and in this article, asks whether a newly asserted liberty deserves constitutional protection by examining the nature of the right and the extent the right is allegedly being infringed upon. However, under the current Deeply Rooted Test, the Court maintains that a right is not entitled to constitutional protection unless it has been historically recognized for centuries—including within English common law prior to the founding of the United States. As long as the Court applies the current Deeply Rooted Test, newly recognized rights and liberties will not be able to obtain constitutional protection. Therefore, I propose a more pragmatic standard that allows courts to reflect on recent changes in society, and, at the same time, to preserve the fundamental value of individual autonomy that the Nation has upheld since its beginning. The newly proposed standard argues that a right can be understood as fitting within American history and tradition if the right involves personal autonomy, has been debated in society for decades, and protects a value consistent with broader constitutional principles. My proposed Deeply Rooted Test employs a simple throughline: there are fundamental American values in individual autonomy. While Dobbs requires courts to interpret the Constitution’s meaning through the lens of the ratification era and to demand centuries of tradition to establish the legitimacy of a right, this article’s proposal allows recent social changes to serve as a legitimate basis for constitutional protections. Finally, this article then examines whether this newly proposed Deeply Rooted Test can apply to the rights of transgender individuals. Though I am not a U.S. citizen, I am inspired by the beauty of American values embedded in the U.S. Constitution. Therefore, in this article, I track the evolution of liberty era by era, believing that American liberty is not a historical accident or partisan project, but a tradition repeatedly tested and repeatedly reaffirmed.