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Substantive Due Process: How the Supreme Court accounts for social progress.


Can the Constitution protect a person’s right to choose their gender?

Last week’s White House statement disfavoring transgender people prompted today’s post. We want to show you one of the ways that social change can be incorporated into the Constitution.

First, some context:

In 1789 in the Bill of Rights, the American people gained a good set of “substantive” rights, like:

  • Freedom of speech and religion,
  • Right to bear arms,
  • Freedom from unreasonable search and seizure,
  • Freedom from cruel and unusual punishment…

Here are examples of a few more that came later:

  • Freedom from slavery (1865),
  • Right to equal protection under the law (1866),
  • Women’s right to vote (1919)
  • Aged 18+’s right to vote (1971)…

Constitutional amendments are difficult to pass. They require approval of 2/3 of each of the House and Senate, in addition to 3/4 of the states. (Caveat: there’s a second method that’s never been used before).

An alternative for substantive rights?

We want to show you how the Supreme Court has used its power of constitutional interpretation to add new substantive rights — without constitutional amendment.

See what we mean in this week’s explainer – our first interactive graphic!

Click here to view the interactive graphic.

About the Author

Mariam Morshedi

Mariam Morshedi

Mariam Morshedi is the Founder and Executive Director of Subscript Law. Before starting Subscript Law, she practiced civil rights law for AARP Foundation, where she litigated housing, consumer and disability rights issues.

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