The Fourteenth Amendment Through Roe-Colored Glasses: Unenumerated Rights and the “Imperial Judiciary”*.

Critics of the “imperial judiciary” have accused the United States Supreme Court of usurping authority from legislators and executives by creating new rights that are found nowhere in the text of the Constitution. In this paper, I use two case studies to argue that unenumerated rights can be reconciled with democratic values. First, the protection of aggressive palliative care in Washington v. Glucksberg (1997) exemplifies a consensus-building decision whereby the Court holds that a broadly accepted norm or practice has constitutional underpinnings. Second, the invalidations of durational residency requirements for welfare benefits in Shapiro v. Thompson (1969) and Saenz v. Roe (1999) represent broadened-access decisions in which the state is required to extend a benefit to an excluded group yet retains the authority to define the benefit's content. These types of decisions are compatible with democratic norms insofar as they do not disable elected representatives from performing their quintessential task: deciding what policy values the state should pursue and how it should purse them. My argument suggests that a focus on Roe v. Wade (1973) exaggerates the ambitions and consequences of judicial protection for unenumerated rights and overlooks how such protection may enhance democratic politics.Polity (2007) 39, 103–124. doi:10.1057/palgrave.polity.2300074 [ABSTRACT FROM AUTHOR]