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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 23-10385
____________________

JANUARY LITTLEJOHN,
JEFFREY LITTLEJOHN,
Plaintiffs-Appellants,
versus
SCHOOL BOARD OF LEON COUNTY, FLORIDA,
ROCKY HANNA,
Individually and in his official capacity as
Superintendent of Leon County Schools,
DR. KATHLEEN RODGERS
Individually and in her official capacity as
Former Assistant Superintendent Equity Officer
and Title IX Compliance Coordinator for Leon County Schools,
RACHEL THOMAS,
Individually and in official capacity as
Counselor at Deerlake Middle School,
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2 Opinion of the Court 23-10385

ROBIN OLIVERI,
Individually and in her official capacity as
Assistant Principal of Deerlake Middle School,

Defendants- Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Florida
D.C. Docket No. 4:21-cv-00415-MW-MJF
____________________

Before ROSENBAUM, NEWSOM, and TJOFLAT, Circuit Judges.

ROSENBAUM, Circuit Judge:
Our system of government divides the government’s pow-
ers among three branches: the legislature, the executive, and the
judiciary. Each branch generally performs different types of ac-
tions.
This case requires us to determine whether Defendants-Ap-
pellees Leon County School Board and its employees’ actions,
which Plaintiffs-Appellants January and Jeffrey Littlejohn chal-
lenge, were legislative or executive. That distinction governs
which analytical framework we apply in a substantive-due-process
case like this one.
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23-10385 Opinion of the Court 3

The Littlejohns allege that the Board and its officials violated
their parental due-process rights when the officials met with and
permitted the Littlejohns’ thirteen-year-old child to express the
child’s gender identity at school. In compliance with the Board’s
guidelines at the time, school officials developed a gender-identity-
related “Student Support Plan” for and with the child without the
Littlejohns’ involvement and contrary to the Littlejohns’ wishes.
As we explain, these actions are executive, not legislative, in
nature. So we apply the substantive-due-process framework that
governs analysis of executive actions. That framework asks
whether the officials’ conduct “shocked the conscience.” Because
the school officials’ actions here do not satisfy that standard as a
matter of law, after careful consideration and with the benefit of
oral argument, we affirm the district court’s order dismissing the
Littlejohns’ claims.
I. BACKGROUND

A. Factual Background1

At the time relevant to this litigation, the Littlejohns’ child

was thirteen years old and attended Deerlake Middle School in Tal-
lahassee, Florida. The Littlejohns’ child was assigned female at
birth, but before the 2020–21 school year, asked to go by they/them
pronouns and a “male” name, J. The Littlejohns did not allow their

1 We recount the facts in the light most favorable to the Littlejohns. See Burban
v. City of Neptune Beach, 920 F.3d 1274, 1278 (11th Cir. 2019).
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4 Opinion of the Court 23-10385

child to use a different name or pronouns, though they permitted

the child to use “J.” as a “nickname” at school. Mrs. Littlejohn in-
formed the child’s teacher that a private therapist that the Lit-
tlejohns hired was seeing the child, and she asked the teacher not
to use a different name or pronouns for the child. But the child told
school counselor Rachel Thomas that the child wanted to use the
name J. and they/them pronouns.
The School Board maintains a Lesbian, Gay, Bisexual,
Transgender, Gender Nonconforming and Questioning Support
Guide (“Guide”). The School Board’s LGBTQ+ Equity Committee
developed the Guide, under the supervision of Superintendent
Rocky Hanna and Assistant Superintendent Dr. Kathleen Rodgers.
The Guide is “a tool for schools, students and their parents and le-
gal guardians to effectively navigate existing laws, regulations and
policies that support LGBTQ+ [Leon County School] students.”
At the time of the events underlying this litigation, the 2018
version of the Guide was in effect. The School Board released an
updated Guide in June 2022. But because the 2018 Guide governed
Defendants’ actions here, we consult the 2018 Guide in this appeal.
Among other resources, the 2018 Guide contained a Ques-
tion-and-Answer portion, which discussed parental-notification
procedures. It instructed staff not to notify parents if a student’s
behavior led staff to believe the student was LGBTQ+:
Q: A student has exhibited behavior in school leading admin-
istrators or teachers to believe the student is LGBTQ+.
Should the parents or legal guardians be notified?
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23-10385 Opinion of the Court 5

A: No. Outing a student, especially to parents, can be very

dangerous to the student[’]s health and well-being. Some
students are not able to be out at home because their parents
are unaccepting of LGBTQ+ people out. As many as 40%
of homeless youth are LGBTQ+, many of whom have been
rejected by their families for being LGBTQ+. Outing stu-
dents to their parents can literally make them homeless.
The Guide also included a template for a Transgender/Gen-
der Nonconforming Student Support Plan. That template con-
tained an intake checklist asking whether the child’s parents were
“aware” of their gender identity, whether the parents were “sup-
portive,” and whether the parents were to be notified.
After the Littlejohns’ child expressed a desire to socially tran-
sition at school, Thomas and other school staff met with the child
to develop a Student Support Plan. Because the child did not af-
firmatively request parental presence at that meeting, in accord
with the Guide, school officials did not notify the Littlejohns. And
the Student Support Plan stated that the Littlejohns were “aware,
but not supportive” of their child’s desire to use a preferred name
and pronouns.
When the Littlejohns learned about their child’s Student
Support Plan meeting and social transition at school, they con-
tacted school and district administrators. Thomas and Assistant
Principal Robin Oliveri called Mrs. Littlejohn, and Thomas told her
that the Littlejohns were not invited to their child’s Student Sup-
port Plan meeting because, “by law,” the child had to request
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6 Opinion of the Court 23-10385

parental attendance. And, Thomas stated, the child was “pro-

tected” under a non-discrimination law that did not require paren-
tal notification. Oliveri added that the school designed its protocol
of not including parents without the child’s approval to protect the
child’s safety.
The Littlejohns then repeatedly called and emailed Dr.
Rodgers. Eventually, Dr. Rodgers stated in an email to the Lit-
tlejohns, “We currently do not have any Florida specific law that
obligates us to inform the parents or says we cannot listen to the
student without their parent present.” 2
B. Procedural History

The Littlejohns sued the School Board, Hanna, Rodgers,

Thomas, and Oliveri, alleging that they violated the Littlejohns’
substantive-due-process and privacy rights under both federal and
state law. In their operative First Amended Complaint, the

2 After the Littlejohns filed suit, Florida enacted its “Parents’ Bill of Rights”
law. See Fla. Stat. § 1014.01 et seq (2021). That law provides that the State or
its entities cannot “infringe on the fundamental rights of a parent to direct the
upbringing, education, health care, and mental health of his or her minor child
without demonstrating that such action is reasonable and necessary to achieve
a compelling state interest and that such action is narrowly tailored and is not
otherwise served by a less restrictive means.” Id. § 1014.03. In June 2022, the
School Board approved a revised Guide “consistent with the pronouncements
in Florida’s Parents’ Bill of Rights” and related legislation. The 2022 Guide
provides, among other things, that “School personnel must not intentionally
withhold information from parents unless a reasonably prudent person would
believe that disclosure would result in abuse, abandonment, or neglect . . . .”
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23-10385 Opinion of the Court 7

Littlejohns asserted five causes of action: three under 42 U.S.C. §

1983 and the United States Constitution and two under the Florida
Constitution.3
As relevant here, the Littlejohns alleged that Hanna and Dr.
Rodgers violated their parental-due-process and familial-privacy
rights by preparing and authorizing the Guide. They also asserted
that Thomas violated their parental-due-process and familial-pri-
vacy rights by meeting with and developing a Student Support Plan
for their child without notifying them. As for Oliveri, the Lit-
tlejohns alleged that she violated their parental-due-process and fa-
milial-privacy rights by “concealing information” about the child’s
social transition at school. Finally, the Littlejohns contended that
the School Board violated their parental-due-process and familial-
privacy rights by authorizing and implementing the 2018 Guide, as
well as by authorizing their exclusion from their child’s Student
Support Plan meeting.
The Littlejohns sought both damages and prospective relief.
They sought a “declaration that Defendants violated [their] funda-
mental rights” by (1) permitting their child to “select[] a new ‘af-
firmed name and pronouns,’ without parental notification and con-
sent”; (2) prohibiting school staff from communicating with them
about their child’s “discordant gender identity”; and (3) instructing
school staff to “deceive” them by “using different names and

3In their original complaint, the Littlejohns also asserted two causes of action
under Florida statutes, but they did not reallege them in their First Amended
Complaint.
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8 Opinion of the Court 23-10385

pronouns around parents than are used in school.” They also

sought nominal and compensatory damages against the Board and
against the individual Defendants in their individual capacities.
Defendants moved to dismiss. The district court granted the
motion without prejudice. First, the district court held that the re-
lease of the 2022 Guide mooted all claims for injunctive relief, as
those claims were based on the superseded 2018 Guide. Next, the
district court found that the individual Defendants were entitled to
qualified immunity on the damages claims. As for the damages
claims against the School Board, the district court determined that
the challenged actions—the failure to include the Littlejohns in the
Student Support Plan meeting and allowing the Littlejohns’ child
to socially transition at school—did not violate the Littlejohns’
rights under the “shock the conscience” test. And because the dis-
trict court concluded that the School Board’s actions did not “shock
the conscience,” it dismissed the claims. Finally, the district court
declined to exercise supplemental jurisdiction over the Florida con-
stitutional claims after it dismissed the federal claims.
The Littlejohns timely appealed. 4 On appeal, they do not
challenge the district court’s mootness determination on the 2018
Guide or its decision not to exercise supplemental jurisdiction over
the Florida-law claims. So we do not discuss those claims further.

4On appeal, eleven organizations, along with a coalition of 21 states, filed

briefs as amici curiae in support of the Littlejohns and reversal.
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23-10385 Opinion of the Court 9

II. STANDARD OF REVIEW

We review a grant of a motion to dismiss for failure to state

a claim de novo, accepting the complaint’s allegations as true and
construing them in the light most favorable to the plaintiff. Burban
v. City of Neptune Beach, 920 F.3d 1274, 1278 (11th Cir. 2019).
III. DISCUSSION

To survive a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), a complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2). In
other words, a plaintiff must “plead[] factual content that allows the
court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
As we’ve noted, the Littlejohns assert that Defendants vio-
lated their substantive-due-process rights to “make decisions con-
cerning the care, custody, and control of their children” and to “di-
rect the medical and mental health decision-making for their chil-
dren,” as well as their right to familial privacy. Our substantive-
due-process precedent recognizes certain rights as “fundamental,”
meaning they are “objectively, deeply rooted in this Nation’s his-
tory and tradition, and implicit in the concept of ordered liberty,
such that neither liberty nor justice would exist if they were sacri-
ficed.” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)
(cleaned up). Because it makes no difference to the outcome here,
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10 Opinion of the Court 23-10385

we assume without deciding that the Littlejohns invoke “funda-

mental” rights. 5
On appeal, the Littlejohns challenge only the district court’s
dismissal of their claims seeking damages. Again, the Littlejohns
sought damages for Defendants’ alleged violations of their funda-
mental parental-due-process and familial-privacy rights. And they
based these claims on Defendants’ actions permitting their child to
socially transition at school without their involvement or authori-
zation, including Defendants’ creation of a Student Support Plan
for the child.
We conclude that the district court correctly dismissed those
claims. To explain why, we divide our discussion into three parts.
Section A explains the different analytical frameworks we apply in
substantive-due-process cases about executive and legislative ac-
tion, respectively. Section B shows that the Littlejohns challenge
executive, not legislative, action. As a result, the “shocks the con-
science” standard—not strict scrutiny—applies. And Section C
concludes that the Littlejohns have not alleged conduct that

5 Substantive-due-process jurisprudence requires a “a ‘careful description’ of

the asserted fundamental liberty interest.” Glucksberg, 521 U.S. at 721 (quoting
Reno v. Flores, 507 U.S. 292, 302 (1993)). The Supreme Court has recognized
parents’ “fundamental right . . . to make decisions concerning the care, cus-
tody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000)
(plurality opinion). Under the umbrella of that right, it has also recognized
parents’ “plenary authority to seek [medical] care for their children, subject to
a physician’s independent examination and medical judgment.” Parham v. J.R.,
442 U.S. 584, 604 (1979). We express no opinion about whether Defendants’
actions implicated the Littlejohns’ child’s medical or mental-health care.
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23-10385 Opinion of the Court 11

“shocks the conscience,” so the district court correctly dismissed

their claims.
A. We apply different analytical frameworks to assess ex-
ecutive and legislative actions that allegedly violated
substantive-due-process rights.

The Fourteenth Amendment’s Due Process Clause prohibits

a state or its officials from “depriv[ing] any person of life, liberty,
or property, without due process of law.” U.S. CONST. amend. XIV,
§ 1. Due process has both a procedural and substantive compo-
nent. See Glucksberg, 521 U.S. at 719–20. This case concerns the
latter: substantive due process.
To state a substantive-due-process claim under § 1983, a
plaintiff must allege “(1) a deprivation of a constitutionally pro-
tected interest, and (2) that the deprivation was the result of an
abuse of governmental power sufficient to raise an ordinary tort to
the stature of a constitutional violation.” Hoefling v. City of Miami,
811 F.3d 1271, 1282 (11th Cir. 2016) (citation and internal quotation
marks omitted).
To determine whether Defendants’ actions violated the Lit-
tlejohns’ rights, we must first identify whether Defendants’ chal-
lenged actions were “legislative” or “executive” in nature. That’s
so because our due-process precedent applies different evaluative
frameworks to “legislative” and “executive” actions. See McKinney
v. Pate, 20 F.3d 1550, 1557 n.9 (11th Cir. 1994) (en banc).
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12 Opinion of the Court 23-10385

“Executive” action violates a plaintiff’s substantive due-pro-

cess rights—even if the right involved is a fundamental one—if the
action “shocks the conscience.” See County of Sacramento v. Lewis,
523 U.S. 833, 846 (1998).
In contrast, we use different levels of scrutiny to determine
whether legislative action violates a plaintiff’s substantive due-pro-
cess rights. To identify the correct level of scrutiny, we “craft[] a
careful description of the asserted right” and ascertain whether it
is so “deeply rooted in this Nation’s history and tradition” as to be
fundamental. Waldman v. Conway, 871 F.3d 1283, 1292 (11th Cir.
2017) (quoting Glucksberg, 521 U.S. at 721). If legislative action im-
plicates a fundamental right, that action must survive strict scru-
tiny. See id. If it involves a right that is not fundamental, we subject
that action to rational-basis review. See FCC v. Beach Commc’ns, Inc.,
508 U.S. 307, 313 (1993).
The Littlejohns challenge this description of the governing
frameworks. They point to our language in McKinney and argue
that the “shocks the conscience” test does not apply to their funda-
mental-rights claim, no matter whether Defendants’ action was
“executive” or “legislative.” 6 And to be sure, we have characterized
the “shocks the conscience” standard as “[a]n alternate substantive

6 Defendants assert that the Littlejohns forfeited this claim by failing to raise it
in the district court. We need not assess that contention because, as we ex-
plain, the Littlejohns’ claim fails on the merits, in any case.
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23-10385 Opinion of the Court 13

due process test” used where the challenged action does not impli-
cate a fundamental right. McKinney, 20 F.3d at 1556 n.7.
But after we issued McKinney, the Supreme Court clarified in
Sacramento that the executive-action framework we’ve described
above governs all substantive-due-process claims involving execu-
tive action—even those involving fundamental rights. In Sacra-
mento, a high-speed police chase tragically resulted in the death of
a sixteen-year-old. See 523 U.S. at 836–37. The teen’s survivors
sued, claiming that the police officer violated their son’s “substan-
tive due process right to life” through their deliberate or reckless
indifference. Id. at 837.
But the Court disagreed. In reaching that conclusion, the
Court noted that “the touchstone of due process is protection of
the individual against arbitrary action of government,” even if “the
fault lies . . . in the exercise of power without any reasonable justi-
fication in the service of a legitimate governmental objective,” as it
does when a substantive-due-process violation occurs. Id. at 845–
46 (cleaned up). Then, the Court distinguished between substan-
tive-due-process violations that the government commits in its leg-
islative versus its executive capacities. Id. at 846. The Court ex-
plained that “criteria to identify what is fatally arbitrary differ de-
pending on whether it is legislation or a specific act of a govern-
mental officer that is at issue.” Id. That’s because challenges to
“executive action . . . raise a particular need to preserve the consti-
tutional proportions of constitutional claims, lest the Constitution
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14 Opinion of the Court 23-10385

be demoted to . . . a font of tort law.” Id. at 847 n.8; see also Paul v.
Davis, 424 U.S. 693, 701 (1976).
When “executive action” is involved, “only the most egre-
gious official conduct can be said to be ‘arbitrary in the constitu-
tional sense.’” Sacramento, 523 U.S. at 846 (quoting Collins v. City of
Harker Heights, 503 U.S. 115, 129 (1992)). And to satisfy that stand-
ard, the Court continued, “the cognizable level of executive abuse
of power” is “that which shocks the conscience.” Id.
So in Sacramento, the Court considered whether the officer’s
deprivation of the teen’s life was “an abuse of executive power so
clearly unjustified by any legitimate objective of law enforcement
as to be barred by the Fourteenth Amendment.” Id. at 840. The
Court determined it wasn’t. Because the death occurred during a
high-speed chase, and officers engaged in that kind of activity must
make split-second decisions, the Court found that the officer’s con-
duct there did not “shock the conscience.” See id. at 855.
Importantly for our purposes, the Court clarified that the
“conscience shocking” inquiry is a “threshold question” that neces-
sarily precedes any fundamental-rights analysis. See id. at 847 n.8.
In other words, even if a plaintiff alleges that executive action vio-
lated a fundamental right, the plaintiff must first show that the ac-
tion “shock[ed] the contemporary conscience.” See id. (character-
izing “egregious behavior” as a “necessary condition” for a
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23-10385 Opinion of the Court 15

substantive-due-process violation).7 To the extent that any conflict

exists between Sacramento and our later cases (e.g., Waldman), Sac-
ramento necessarily controls. Cf. United States v. Dubois, 94 F.4th
1284, 1301 (11th Cir. 2024) (“when prior . . . precedents conflict, the
earlier case controls” (quoting MacPhee v. MiMedx Grp., 73 F.4th
1220, 1250 (11th Cir. 2023))).
Our precedent illustrates the Sacramento framework in prac-
tice. Take Maddox v. Stephens, 727 F.3d 1109 (11th Cir. 2013). Mad-
dox concerned the same fundamental parental right that the Lit-
tlejohns assert. In Maddox, the plaintiff alleged that a state social

7 The Dissent asserts that Sacramento does not require us to apply the “shocks
the conscience” standard to state actions that burden a right “implicit in the
concept of ordered liberty,” even if those state actions are executive in charac-
ter. Diss. at 26. In support, it highlights United States v. Salerno, 481 U.S. 739,
746 (1987), as an example of the Court explaining that a plaintiff can state a
substantive-due-process claim by alleging conduct that “shocks the con-
science” or interferes with a right “implicit in the concept of ordered liberty.”
Diss. at 26. We respectfully disagree with that reading of Salerno and Sacra-
mento. We do not parse “the language of an opinion . . . as though we are
dealing with language of a statute.” Reiter v. Sonotone Corp., 442 U.S. 330, 341
(1979). So we cannot take from Salerno’s use of “or” that the “shocks the con-
science” standard does not apply to the Littlejohns’ claim. Rather, we must
assess the body of binding precedent as a whole, including the guidance Sacra-
mento offers. And to the extent that body of binding precedent is conflicting,
we think our best path forward is, as Judge Newsom points out in his concur-
ring opinion, to follow the clearest rule statement, see Newsom Op. at 13–15—
the one that Sacramento provides and that our binding precedent follows. So
precedent directs us to apply the “shocks the conscience” standard to all exec-
utive action, even if the executive action burdens a right “implicit in the con-
cept of ordered liberty” in the process.
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16 Opinion of the Court 23-10385

worker violated her parental substantive-due-process rights by re-

moving her child from her custody and placing the child with the
child’s grandmother. Id. at 1113. We found that the plaintiff had
“undisputed[ly]” pled a violation of her substantive-due-process
rights. Id. at 1119. But we said that such a violation was not
enough—rather, only conduct that is “arbitrary or conscience
shocking in a constitutional sense” could trigger a substantive-due-
process violation. Id. (quoting Waddell v. Hendry Cnty. Sheriff’s Off.,
329 F.3d 1300, 1305 (11th Cir. 2003)). So we reversed the district
court’s denial of summary judgment for the social-worker defend-
ant. Id. at 1127.
As Maddox shows, the Littlejohns are mistaken in their con-
tention that the “shocks the conscience” standard does not apply
when we assess claims that the government’s executive actions vi-
olated (even fundamental) substantive-due-process rights.
Nor, as the Dissent contends, are Sacramento’s and Maddox’s
directions about how to apply the “shocks the conscience” standard
dicta. Diss. at 3. Justice Souter offered footnote 8 as a direct re-
sponse to Justice Scalia’s concurrence that refused to apply the
“shocks the conscience” standard. Sacramento, 523 U.S. at 843 n.8.
So the Court’s reasoning as to why the standard applied was neces-
sary to the opinion’s central rationale and its holding that Officer
Smith’s behavior did “not shock the conscience.” Id. at 855.
Whether the Court could have resolved the case on narrower
grounds does not detract from the fact that the shocks-the-con-
science standard was crucial to the grounds on which the Court did
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23-10385 Opinion of the Court 17

resolve the case. And that makes it binding. See, e.g., Marbury v.
Madison, 5 U.S. 137, 177 (1803).
But even if it were dicta, we have long distinguished be-
tween “dicta” and “Supreme Court dicta.” Schwab v. Crosby, 451
F.3d 1308, 1325 (11th Cir. 2006). And even assuming Sacramento’s
footnote 8 is dicta, it’s not the “subordinate clause, negative preg-
nant, devoid-of-analysis, throw-away kind of dicta.” Id. Rather, it’s
“well thought out, thoroughly reasoned, and carefully articulated
analysis by the Supreme Court describing the scope of one of its
own decisions.” Id. So we give that reasoning and its clear impli-
cations substantial weight.
In any event, Maddox’s application of the “shocks the con-
science” standard is binding. As the Dissent recognizes, Maddox
held “that it was not clearly established that Stephens’s con-
duct . . . was conscience shocking.” Diss. at 37. If Maddox didn’t
need to prevail under the “shocks the conscience” standard, then
we couldn’t have awarded Stephens qualified immunity on the
ground that we did. In other words, if Maddox could have pre-
vailed by proving only that the defendants violated a fundamental
right under clearly established law, then our conclusion that the
law did not clearly establish that Stephens’s conduct was con-
science shocking would have been irrelevant—the “shocks the con-
science” standard wouldn’t have been an element of Maddox’s
claim. But we held that the “shocks the conscience” standard ap-
plied to Maddox’s parental-rights claim. Maddox, 727 F.3d at 1119.
So we applied the standard and concluded he couldn’t prove that
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18 Opinion of the Court 23-10385

element under clearly established law. Our application of the

“shocks the conscience” standard was therefore necessary to our
holding in Maddox, and it binds us here as prior precedent. See
Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998).
B. The Littlejohns challenge executive, not legislative, ac-
tion, so the “shocks the conscience” standard applies.

We must decide, then, whether the Littlejohns challenge

“legislative” or “executive” action. We begin by defining those
terms. “Executive acts characteristically apply to a limited number
of persons” and “typically arise from the ministerial or administra-
tive activities of members of the executive branch.” McKinney, 20
F.3d at 1557 n.9. “Legislative acts, on the other hand, generally ap-
ply to a larger segment of—if not all of—society; laws and broad-
ranging executive regulations are the most common examples.” Id.
For example, a school board rule of general applicability is “legis-
lative” action. See Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194,
198 (1979) (per curiam). But an “administrative decision” that “af-
fects only a limited class of persons” is a “textbook ‘executive act.’”
Lewis v. Brown, 409 F.3d 1271, 1273 (11th Cir. 2005).
Defendants’ actions with respect to the Littlejohns’ child
were “executive.” The Littlejohns challenge Defendants’ “deci-
sion” to create a Student Support Plan for their child and permit
the child to socially transition at school, an action that “affect[ed]
only a limited class of persons.” See id. Put differently, the Lit-
tlejohns challenge Defendants’ application of the Guide to their
child. That is, they challenge Defendants’ individualized action
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23-10385 Opinion of the Court 19

consistent with the Guide’s general directives. That is “executive”

action. See Crymes v. DeKalb County, 923 F.2d 1482, 1485 (11th Cir.
1991) (“A legislative act involves policy-making rather than mere
administrative application of existing policies.”).
To be sure, the Guide itself is arguably “legislative,” as it was
a “broad-ranging” policy that “generally appl[ied] to a larger seg-
ment of . . . society,” the Leon County School District. See McKin-
ney, 20 F.3d at 1557 n.9. But the Littlejohns waived any general
challenge to the Guide (or its adoption and broad implementation).
In their opposition to Defendants’ motion to dismiss, the Lit-
tlejohns asserted that “Defendants’ course of conduct, not the con-
tents of the 2018 Guide,” was the “focus of [their] action.” We can-
not revive this waived issue. See, e.g., United States v. Campbell, 26
F.4th 860, 872 (11th Cir. 2022) (en banc). In any event, the district
court found that the adoption of the 2022 Guide mooted any chal-
lenge to the 2018 Guide, a determination that the Littlejohns do
not challenge on appeal. So all that remains is the Littlejohns’ chal-
lenge to “textbook ‘executive act[s].’” 8 See Brown, 409 F.3d at 1273;

8 We reach a different conclusion than the First Circuit recently did when it
determined a similar school-gender-identity policy was legislative action.
Foote v. Ludlow Sch. Comm., 128 F.4th 336, 346–47 (1st Cir. 2025). We do so for
two reasons. First, the Littlejohns litigated the case differently than did the
plaintiffs in Foote. As we discuss above, the Littlejohns waived their general
challenges to the Guide, its adoption, and its broad implementation. By con-
trast, in Foote, the Protocol was itself the “chief target of the Parents’ com-
plaint.” Id. at 347. The focus of the parents’ challenge in Foote was a more
characteristically legislative act—a general policy and its routine
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20 Opinion of the Court 23-10385

C.B. ex rel. Breeding v. Driscoll, 82 F.3d 383, 385, 387 (11th Cir. 1996)
(holding the suspension of students under an existing school policy
was executive action).
And Maddox made clear that even when a plaintiff alleges vi-
olations of her fundamental parental rights, executive action must
“shock the conscience” to violate due process. See Maddox, 727 F.3d
at 1119. In Maddox, the parental-rights interest was at its apex—a
state official removed a child from her mother’s custody. See id. at
1113. Yet we applied the “shock the conscience” standard all the
same. See id. at 1119. And several of our sister circuits have done
so as well. See, e.g., Doe v. Woodard, 912 F.3d 1278, 1300 (10th Cir.
2019) (applying the “shocks the conscience” standard even when
the plaintiff alleged interference with fundamental parental rights);
Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006) (same); Schmidt
v. Des Moines Pub. Sch., 655 F.3d 811, 816 (8th Cir. 2011) (same); Sief-
ert v. Hamilton County, 951 F.3d 753, 766 (6th Cir. 2020) (same); Miller

applications—not, as we see it here, a more characteristically executive act—

the specific application of a general policy to one person. Second, our prece-
dent does not appear to take as narrow a view of executive action as does the
First Circuit. The First Circuit indicated that executive conduct is typically
associated with “instant judgment.” Id. By contrast, we’ve considered execu-
tive action the application of a broad rule to “only a limited class of persons,”
like the enforcement of zoning regulations. Brown, 409 F.3d at 1273–74. To
be sure, we’ve explained that similar regulations or policies may be legislative
acts themselves, see Crymes, 923 F.2d at 1485–86, and plaintiffs could surely
style their complaints to challenge them as legislative action. But the Lit-
tlejohns didn’t do that here; they challenged the “application of existing poli-
cies” to their child. Id. at 1485. And that, we’ve held, is the hallmark of exec-
utive action.
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23-10385 Opinion of the Court 21

v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999) (same); Goe v.
Zucker, 43 F.4th 19, 30 (2d Cir. 2022) (same), cert. denied sub nom.,
Goe v. McDonald, 143 S. Ct. 1020 (2023).
We must follow our precedent here. See, e.g., United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“Under [the prior panel
precedent rule], a prior panel’s holding is binding on all subsequent
panels unless and until it is overruled or undermined to the point
of abrogation by the Supreme Court or by this court sitting en
banc.”).
C. Defendants’ actions did not “shock the conscience.”

So we must now determine whether Defendants’ actions

“shocked the conscience.” They did not.
As the Supreme Court has clarified, “conduct intended to in-
jure in some way unjustifiable by any government interest is the
sort of official action most likely to rise to the conscience-shocking
level.” Sacramento, 523 U.S. at 849. And “[o]nly the most egregious
conduct” meets this standard. Waldman, 871 F.3d at 1292.
We begin once again with Maddox. We decided Maddox on
qualified-immunity grounds, finding that the plaintiff had not
“cited any case that would make it clear to a reasonable social
worker at the time that her actions were arbitrary or conscience
shocking.” 727 F.3d at 1126. So we did not decide whether the
social worker’s conduct “shocked the conscience” and thus violated
the plaintiff’s substantive-due-process rights. See id. at 1127 n.19.
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22 Opinion of the Court 23-10385

Because Maddox did not perform the “shocks the conscience” anal-
ysis, it does not resolve the Littlejohns’ claims.
So we look to other precedent applying the “shocks the con-
science” test in the educational context for guidance. True, these
cases did not involve interference with parental due-process rights,
like the Littlejohns allege. But their analysis of the “shocks the con-
science” test remains instructive.
For example, we found that corporal punishment with a
metal weight lock, which ultimately blinded a student in one eye,
was “arbitrary” and “conscience-shocking.” Neal ex rel. Neal v. Ful-
ton Cnty. Bd. of Educ., 229 F.3d 1069, 1075–77 (11th Cir. 2000). We
reasoned that a school official violated a student’s substantive-due-
process rights if “(1) [he] intentionally used an amount of force that
was obviously excessive under the circumstances, and (2) the force
used presented a reasonably foreseeable risk of serious bodily in-
jury.” Id. at 1075. That test, we reasoned, contemplates “egregious
official abuse of force.” Id. at 1076. And we extended Neal’s frame-
work to a case where a school principal “struck [a student] with a
metal cane in the head, ribs and back,” finding that the principal
was not entitled to qualified immunity. Kirkland ex rel. Jones v.
Greene Cnty. Bd. of Educ., 347 F.3d 903, 904 (11th Cir. 2003).
But, since Neal, we have repeatedly rejected claims of “con-
science-shocking” conduct in educational settings. In Dacosta v.
Nwachukwa, 304 F.3d 1045, 1047 (11th Cir. 2002) (per curiam), the
defendant “slammed” a door in the plaintiff’s face, “violently
swung the door,” and “shoved [the plaintiff’s] face.” Even though
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23-10385 Opinion of the Court 23

the defendant was arrested for criminal battery, we concluded that

the defendant’s conduct did not “shock[] the conscience” beyond
the commission of a state-law tort. Id. at 1047–48.
Nor did we find a substantive-due-process violation when a
student died from electric shock after touching a live wire during a
class demonstration. Nix v. Franklin Cnty. Sch. Dist., 311 F.3d 1373,
1374–75 (11th Cir. 2002). The plaintiffs, the deceased student’s par-
ents, argued that school officials “were particularly arbitrary, reck-
less, and deliberately indifferent” in allowing the demonstration to
occur. Id. at 1376. But we concluded that, under our case law, the
plaintiffs’ “allegations of ‘deliberate indifference’” did not ‘“shock
the conscience’ in a way that gives rise to a due-process violation.”
Id. at 1378.
We extended Nix’s reasoning in another case concerning a
student’s death, this time following an “intense” football practice.
See Davis v. Carter, 555 F.3d 979, 980 (11th Cir. 2009). The plaintiffs,
the deceased student’s parents, alleged that the football coaches
failed to provide enough water, ignored the student’s complaints
that he was dehydrated, subjected the student to “rigorous condi-
tioning drills,” and failed to attend to the student even after he col-
lapsed. Id. at 980–81. We found that the football coaches were en-
titled to qualified immunity because their conduct did not “rise to
the conscience-shocking level.” Id. at 984. Though the coaches
may have been “deliberately indifferent to the safety risks posed by
their conduct,” we said, they did not “act[] willfully or maliciously
with an intent to injure,” so they did not violate the student’s
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24 Opinion of the Court 23-10385

constitutional rights. Id. Rather, the plaintiffs’ claims were

“properly confined to the realm of torts.” Id.
Taken together, Nix and Davis impose a high bar: even where
a student dies, school officials’ behavior does not “shock the con-
science” if it is no more than reckless or deliberately indifferent.
See id.; cf. also L.S. ex rel. Hernandez v. Peterson, 982 F.3d 1323, 1331
(11th Cir. 2020) (expressing “doubt that deliberate indifference can
ever be ‘arbitrary’ or ‘conscience shocking’ in a non-custodial set-
ting”). Rather, something more is required, like “malicious[]” con-
duct, see Davis, 555 F.3d at 984, or “obviously excessive” force, see
Neal, 229 F.3d at 1076. We do not have to fix the precise height of
that bar to conclude that the Littlejohns’ allegations do not clear it.
Comparing the facts here to those in our cases above, we
cannot conclude that Defendants’ actions with respect to the Lit-
tlejohns’ child “shocked the conscience.” The child was not physi-
cally harmed, much less permanently so. Contra Neal, 229 F.3d at
1071; Kirkland, 347 F.3d at 904; Dacosta, 304 F.3d at 1047; Nix, 311
F.3d at 1375; Davis, 555 F.3d at 980–81. 9 Defendants did not remove
the Littlejohns’ child from their custody. Contra Maddox, 727 F.3d
at 1113. And Defendants did not force the child to attend a Student
Support Plan meeting, to not invite the Littlejohns to that meeting,
or to socially transition at school. In fact, Defendants did not force
the Littlejohns’ child to do anything at all. Cf. Sacramento, 523 U.S.

9We do not suggest that only physical harm can support a substantive-due-
process violation. We offer this list only as illustrative (not exhaustive) exam-
ples drawn from our precedent.
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23-10385 Opinion of the Court 25

at 855. And perhaps most importantly, Defendants did not act with
intent to injure. To the contrary, they sought to help the child. Un-
der these circumstances, even if the Littlejohns felt that Defend-
ants’ efforts to help their child were misguided or wrong, the mere
fact that the school officials acted contrary to the Littlejohns’
wishes does not mean that their conduct “shocks the conscience”
in a constitutional sense.
Finally, we are not persuaded by the Littlejohns’ attempts to
distinguish Sacramento and its framework because this case does
not involve “exigent circumstances” or “split-second life or death
decisions.” We agree, of course, that whether government action
“shocks the conscience” depends on context. But the context does
not change the applicable legal framework. After all, Sacramento is
clear that its framework applies to all substantive-due-process cases
that involve executive action. See Sacramento, 523 U.S. at 847
(“[T]he substantive component of the Due Process Clause is vio-
lated by executive action only when it ‘can properly be character-
ized as arbitrary, or conscience shocking, in a constitutional
sense.’” (emphasis added) (citation omitted)); see also id. at 847 n.8
(explaining that “executive action challenges raise a particular need
to preserve the constitutional proportions of constitutional
claims”).
Not only that, but we have applied Sacramento’s framework
in cases that did not concern “split-second” or law-enforcement de-
cisions—most relevantly, Maddox. We reject the Littlejohns’ efforts
to cabin Sacramento and reiterate that the “shocks the conscience”
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26 Opinion of the Court 23-10385

test is appropriate for all substantive-due-process challenges to ex-

ecutive action.
Because the Littlejohns failed to state a claim that Defend-
ants’ (executive) actions “shocked the conscience,” the district
court properly granted Defendants’ motion to dismiss. 10
IV. CONCLUSION

For the reasons we’ve discussed, we affirm the district

court’s grant of Defendants’ motion to dismiss.
AFFIRMED.

10Because we find that the Littlejohns’ complaint fails to state a claim on the
merits, we do not reach the individual Defendants’ alternative argument that
they are entitled to qualified immunity.
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23-10385 ROSENBAUM, J., Concurring 1

ROSENBAUM, Circuit Judge, concurring:

Judge Newsom’s concurrence today marks at least the
fourth time he’s lamented substantive due process in one of his
opinions. And although his opinion today complains specifically
about substantive-due-process doctrine as it applies to “executive”
state action, 1 the first paragraph of Judge Newsom’s concurrence
takes issue with substantive due process even as we apply it to “leg-
islative” state action. I haven’t previously had a chance to respond
to Judge Newsom’s concerns about substantive due process, 2 but
given that he’s raised the issue repeatedly, I did not think I could
forego answering here.
Judge Newsom has long said he’s “for ditching substantive
due process altogether and exploring” what he thinks is a more
“promising” and “principled” vehicle “for protecting individual

1 To be clear, I don’t write to address Judge Newsom’s critiques of how we’ve

distinguished between substantive-due-process challenges to “legislative” and
“executive” state action or of the “shocks the conscience” test that we apply
to challenges to executive action. Newsom Op. at 3–18. Rather, I address only
what we generally think of when we speak of substantive due process: sub-
stantive-due-process challenges to “legislative” state action—which do not
employ the “shocks the conscience” test. That I don’t address “executive”
substantive-due-process claims and the “shocks the conscience” test is neither
an endorsement of nor objection to these frameworks. It’s just that, in light
of the critical mass of Judge Newsom’s attacks on substantive-due-process
challenges to “legislative” state action, I feel my focus here needs to be on that
(and in any case, this concurring opinion is already quite long doing just that).
2 I was on the en banc Court in Sosa v. Martin County, one of Judge Newsom’s
previous outings with substantive due process. But there, I needed to use my
dissent to explain why the Majority Opinion was incorrect.
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2 ROSENBAUM, J., Concurring 23-10385

rights against state interference”—the Fourteenth Amendment’s

Privileges or Immunities Clause. See Sosa v. Martin County, 57 F.4th
1297, 1307 (11th Cir.) (en banc) (Newsom J., concurring) (citing
Kevin Newsom, Setting Incorporationism Straight: A Reinterpretation
of the Slaughter-House Cases, 109 YALE L.J. 643, 658–87 (2000)), cert.
denied, 144 S. Ct. 88 (2023). In Judge Newsom’s view, substantive
due process “loos[es] judges to foist their policy preferences on so-
ciety.” Newsom Op. at 3.
No doubt a serious charge. But respectfully, I disagree with
Judge Newsom’s conclusion. So before Judge Newsom leaves sub-
stantive due process for constitutional roadkill, I have a few
thoughts.
Let’s start where we agree. We agree that the Constitution
protects certain unenumerated rights. See, e.g., U.S. CONST.
amend. XIV, § 1. It is beyond dispute that our Founders intended
even broad provisions, like the Due Process Clause or the Privi-
leges or Immunities Clause, to constrain government. See Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).
But we disagree about the precise meaning of those words
and the doctrine we can pull from them. To put it another way,
we disagree about the methodology by which we should identify
and enforce fundamental rights.
Under current doctrine, which we home in the Due Process
Clause, fundamental rights are those that are deeply rooted in our
Nation’s history and tradition and implicit in our concept of or-
dered liberty. Washington v. Glucksberg, 521 U.S. 702, 721 (1997).
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23-10385 ROSENBAUM, J., Concurring 3

Think marriage, which has always been “the foundation of the fam-
ily and of society.” Maynard v. Hill, 125 U.S. 190, 211 (1888).
For his part, Judge Newsom would prefer to make our fun-
damental-rights jurisprudence anew under the Privileges or Im-
munities Clause. But to my knowledge, Judge Newsom hasn’t yet
shared how his view of the privileges-or-immunities doctrine will
work. Still, he has left open the possibility that the Privileges or
Immunities Clause could accommodate some of the individual lib-
erties our current doctrine secures. See, e.g., Sosa, 57 F.4th at 1307
(Newsom J., concurring); Newsom, Incorporationism, supra, at 736
n.450 (reserving “for another day whether the Court’s privacy de-
cisions . . . might find support in a resurrected Privileges or Immun-
ities Clause” (cleaned up)).
So what’s the difference, a reader might wonder. Given his
charge that substantive-due-process doctrine “loos[es] judges to
foist their policy preferences on society” because “it’s so untethered
from traditional interpretive sources,” Newsom Op. at 3, a reader
might think that the guardrails on substantive due process are sub-
stantially weaker than those on any framework under the Privi-
leges or Immunities Clause.
Not so. See infra Section III.A. No matter whether we travel
under substantive-due-process doctrine, the Privileges or Immuni-
ties Clause, or even certain enumerated-rights amendments, the
first leg of our journey generally requires us to determine whether
the claimed right is a fundamental one. And in each case, we must
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4 ROSENBAUM, J., Concurring 23-10385

employ all the usual tools, like the Constitution’s structure, its his-
tory, and our traditions to assess that. We also consider precedent.
Take the Privileges or Immunities Clause. The text doesn’t
tell us what our predecessors understood a “privilege” or “immun-
ity” to be. Or consider the First Amendment. True, we know the
Constitution protects “the freedom of speech.” U.S. CONST.
amend. I. But we can’t tell from the text alone, for instance,
whether the provision protects those who burn American flags. See
Texas v. Johnson, 491 U.S. 397, 404 (1989). So we resort to our usual
means of interpreting the Constitution—history, tradition, struc-
ture, and precedent—to fill in the gaps. And we do the same thing
when we conduct a substantive-due-process analysis.
That brings us to the second step of a fundamental-rights
analysis. To my knowledge, Judge Newsom hasn’t yet shared how
that would work under his view of the Privileges or Immunities
Clause. So I’ll assume the second step would work in one of two
ways.
One the one hand, the second step may adopt a tiers-of-scru-
tiny approach, as the Supreme Court did when it applied the Privi-
leges or Immunities Clause in Saenz v. Roe, 526 U.S. 489 (1999).
There, the Supreme Court said that we evaluate the constitution-
ality of a law that burdens a fundamental right by subjecting it to
at least strict scrutiny. Id. at 504. That means we ask whether the
law is narrowly drawn to further a compelling government inter-
est, and if it isn’t, the law doesn’t survive. If, on the other hand, the
first step of our analysis reveals the claimed right isn’t fundamental,
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23-10385 ROSENBAUM, J., Concurring 5

then Saenz seems to suggest we apply rational-basis scrutiny, mean-

ing the law stands if we can conceive of a rational basis for it.
But guess what: At the second step of the substantive-due-
process framework, we also apply these same tiers of scrutiny
based on whether a right is fundamental or not. So again, no dif-
ference!
On the other hand, the second step of analysis could follow
the historical approach the Court has employed in some recent
constitutional cases—think the Second Amendment, for instance.
If so, we’d look for “relevantly similar” historical analogues for the
challenged law. But when we do that, the level of generality at
which we define the relevant regulatory tradition that has gov-
erned the asserted right can determine whether we will find a “rel-
evantly similar” historical analogue and thus whether the law
stands or falls. That determination—the level of generality at
which we define the relevant regulatory tradition—is not a binary
one. So by its nature, it allows judges substantial discretion. In-
deed, some might say more than do the tiers of scrutiny.
Yes, it would be great if the Constitution gave us indisputa-
bly clear direction for every question, but it doesn’t. No document
could. But that doesn’t mean that the Constitution’s intent to pro-
tect unenumerated fundamental rights is not clear. It is. Indeed,
it’s beyond dispute that the Constitution protects unenumerated
fundamental rights: the Ninth Amendment’s text says so; the his-
torical record unambiguously reveals the Founders’ intent to pro-
tect unenumerated fundamental rights; the Framers of the
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6 ROSENBAUM, J., Concurring 23-10385

Fourteenth Amendment saw the Fourteenth Amendment as pro-

tecting unenumerated fundamental rights; and the source of that
protection is clearly in Section One of the Fourteenth Amend-
ment—whether under the Due Process Clause or the Privileges or
Immunities Clause, or even some combination of the two.
Plus, as I’ve just summarized, the tests we apply to protect
those rights under either substantive-due-process doctrine or the
Privileges or Immunities Clause require us to engage in essentially
the same analysis. And for literally years now, the Supreme Court
(and the lower courts following suit) has applied substantive-due-
process doctrine to consider challenges to claimed unenumerated
fundamental rights.
In short, applied properly and faithfully, substantive due
process does not allow judges to “foist their policy preferences on
society” any more than we may when we construe constitutional
rights under other parts of the Constitution—whether under enu-
merated-rights provisions or the Privileges or Immunities Clause.
This opinion proceeds in three parts. But as a heads up, that
doesn’t mean it’s brief. Before I can address the charge that sub-
stantive due process is the modus operandi of judicial activism, I
must first lay some foundation.
Towards that end, Section I starts with Judge Newsom’s ar-
gument that substantive due process is “unmoored from history.”
Newsom Op. at 2. It shows that our Founders always intended and
the people always understood that our constitutions, both federal
and state, preserved to the people fundamental yet unenumerated
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23-10385 ROSENBAUM, J., Concurring 7

rights. This history lays the groundwork for our understanding of

what makes an unenumerated right fundamental.
Section II then compares modern substantive-due-process
doctrine to those historical principles. It explains that today’s juris-
prudence largely adheres to the understanding that the Founders
and the drafters of the Fourteenth Amendment held about the pro-
cess by which courts identify unenumerated rights and about the
substance of those rights. Far from dismissing “traditional inter-
pretive sources,” id. at 3, substantive-due-process precedent re-
quires that we employ them.
And in Section III, I’ll address head on the assertion that, “[i]f
ever there were a doctrine that gave a veneer of truth to the vicious
lie that judges just decide cases in accordance with their priors, it’s
substantive due process.” Id. Section III responds to Judge New-
som’s suggestion, as well as his pulling of substantive due process’s
fire alarms—Dred Scott and Lochner—as reasons to abandon the
doctrine. And it shows that neither Dred Scott nor Lochner (as erro-
neous and, in Dred Scott’s case, abhorrent as they were) validate the
charge that substantive due process is rotten at its core any more
than Plessy v. Ferguson’s separate-but-equal abomination proves the
Equal Protection Clause is fatally defective.
I. The Constitution protects and Founding Era and Recon-
stitution Era Americans intended for courts to enforce
unenumerated fundamental rights.
Our Constitution rests on a bargain (the “social contract”).
Each of this country’s citizens sacrifices some of their freedom to
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8 ROSENBAUM, J., Concurring 23-10385

form a government that provides for the common defense, pro-

motes the general welfare, and secures the blessings of liberty. U.S.
CONST. pmbl. But we don’t relinquish all our rights. Some, after
all, are “unalienable.” 3 THE DECLARATION OF INDEPENDENCE para.
2 (U.S. 1776). The Framers listed some of those preexisting privi-
leges in the Constitution’s first eight Amendments. Still, at no
point did they intend, or did our country’s citizens understand, the
enumeration of some rights to deny or disparage other limitations
on governmental authority. Indeed, the Ninth Amendment could
not say so any more clearly. Americans always understood that
courts would enforce individuals’ retained rights and would check
acts not within the state and federal governments’ powers.
This understanding of how state and federal constitutions
secure our fundamental rights animated the drafters of the Four-
teenth Amendment’s Section One, which, among other things,
precludes states from “mak[ing] or enforc[ing] any law which shall
abridge the privileges or immunities of the citizens of the United
States” or “depriv[ing] any person of life, liberty, or property, with-
out due process of law.” U.S. CONST. amend. XIV, § 1. The lead-

3 Nowadays, we more commonly use the term “inalienable.” But “unaliena-

ble” and “inalienable” mean the same thing. See Unalienable, BLACK’S LAW
DICTIONARY (12th ed. 2024) (stating as the only definition for the term, “See
inalienable”); Unalienable, OXFORD ENGLISH DICTIONARY,
https://www.oed.com/dictionary/unalienable_adj (last visited October 24,
2024) [https://perma.cc/KMF8-STLN]. To conform to modern preference,
this opinion uses the term “inalienable” except when quoting sources that use
the term “unalienable.”
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23-10385 ROSENBAUM, J., Concurring 9

up to and aftermath of the Civil War made clear that the states had
not adequately secured fundamental rights for some within their
borders—namely, Black Americans. So the Fourteenth Amend-
ment enabled the federal government, including its courts, to en-
force those rights.
This Section details that history. It first recounts Americans’
view of unenumerated, fundamental rights at the Founding. Then,
it discusses fundamental-rights jurisprudence during the Antebel-
lum period. And last, it shows how Americans during Reconstruc-
tion adopted the Fourteenth Amendment to ensure the federal
government could secure Americans’ unenumerated, fundamental
rights. This history lays the groundwork for understanding how
modern substantive due process accords with our predecessor’s un-
derstanding of what makes an unenumerated right fundamental.
A. When Americans ratified the Constitution, they understood
that courts would secure Americans’ unenumerated, funda-
mental rights.
We the people are sovereign in these United States. Through
the state and federal constitutions, we cede some of our natural
freedoms in exchange for an elected government that acts for the
common good. See generally JOHN LOCKE, TWO TREATISES OF
GOVERNMENT (1689); see THE DECLARATION OF INDEPENDENCE
para. 2 (U.S. 1776). To the states, we grant broad police powers to
regulate the public health, safety, and welfare. See, e.g., Munn v. Illi-
nois, 94 US. 113, 124 (1876); Jacobson v. Massachusetts, 197 US. 11, 27
(1905). And to the federal government, we grant a set of
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10 ROSENBAUM, J., Concurring 23-10385

“enumerated powers.” McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316, 405 (1819). But those grants of authority are not absolute.
From both, we retain a set of fundamental rights the government
cannot infringe.
The Framers found this proposition unremarkable. “In large
part, the notion that Americans enjoyed a common set of basic
rights was an engrained assumption that needed no explanation.”
Jud Campbell, General Citizenship Rights, 132 YALE L.J. 611, 634
(2023). 4 The “fundamental principles of civil and religious liberty”
formed “the basis whereon these republics, their laws and

4 These limitations on government generally fall into two buckets: inalienable

natural rights and common-law rights. See Baude, Campbell & Sachs, infra, at
1196–98. The first are “unceded portions of right,” such as the “freedom of
religion,” Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790),
in 18 THE PAPERS OF THOMAS JEFFERSON 131, 132 (Julian P. Boyd ed., 1971)
[hereinafter Jefferson to Webster], the sanctity of the family, Moore v. City of
East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion), or the right to
marry, Obergefell v. Hodges, 576 U.S. 644, 669 (2015), that Americans did not
grant to the government through the social contract. The second, Jefferson
explained, are “certain fences which experience has proved peculiarly effica-
cious against wrong,” such as “trial by jury, Habeas corpus laws, free presses.”
Jefferson to Webster, supra, at 132. In other words, the second bucket includes
rights that developed through the common law or that the colonies’ experi-
ences with Britain proved necessary. See United States v. Williams, 113 F.4th
637, 649 n.5 (6th Cir. 2024) (citing 2 DOCUMENTARY HISTORY OF THE
CONSTITUTION OF THE UNITED STATES OF AMERICA 321 (Washington: Depart-
ment of State, 1894)) (referring to the Third Amendment as a “restrictive” pro-
vision). Americans generally cede their remaining liberties, such as the right
to contract or acquire and possess property, “to be regulated, modified, and,
sometimes, absolutely restrained” by the government for the public good. Og-
den v. Saunders, 25 U.S. 213, 320 (1827) (opinion of Trimble, J.).
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23-10385 ROSENBAUM, J., Concurring 11

constitutions are erected.” The Northwest Ordinance, Act of Aug.

7, 1789, ch. 8, 1 Stat. 50, 51 n.a. So “the power to violate and disre-
gard” these rights did not “lurk[] under any general grant of legis-
lative authority” or “general expressions of the will of the people.”
Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 657 (1829).
The Framers expressly articulated some (though not all) of
these fundamental rights in the Bill of Rights. Indeed, “there was
broader agreement that Americans enjoyed certain fundamental le-
gal rights with determinate legal content.” William Baude, Jud
Campbell & Stephen E. Sachs, General Law and the Fourteenth
Amendment, 76 STAN. L. REV. 1185, 1199 (2024). After all, the Bill of
Rights was “not intended to lay down any novel principles of gov-
ernment, but simply to embody certain guaranties and immunities
which we had inherited from our English ancestors.” Robertson v.
Baldwin, 165 U.S. 275, 281 (1897).
The “right of the people peaceably to assemble,” for in-
stance, “existed long before the adoption of the Constitution of the
United States”; it “is, and always has been, one of the attributes of
citizenship under a free government” that “‘derives its
source’ . . . from those laws whose authority is acknowledged by
civilized man throughout the world.” United States v. Cruikshank,
92 U.S. 542, 551 (1875) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat)
1, 211 (1824)); see also District of Columbia v. Heller, 554 U.S. 570, 592
(2008) (“[I]t has always been widely understood that the Second
Amendment . . . codified a pre-existing right.”); Crawford v. Washing-
ton, 541 U.S. 36, 54 (2004) (concluding the Sixth Amendment’s
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12 ROSENBAUM, J., Concurring 23-10385

Confrontation Clause referenced “the right of confrontation at

common law”).5
The debate between the Federalists and Anti-Federalists over
the first ten amendments illustrates this point that the Framers un-
derstood the Constitution to protect these rights that pre-existed
it—whether the Constitution expressly named them or not. Anti-
Federalists pushed for a Bill of Rights because they believed the
Necessary and Proper Clause risked granting Congress too much
power. See Brutus No. 2 (1787), reprinted in 2 THE COMPLETE ANTI-
FEDERALIST 372, 374 (Hebert J. Storing, ed., Univ. Chi. Press 1981)
(suggesting the federal government’s power is “complete, with re-
spect to every object to which they extend”). The Federalists of-
fered two responses.
First, echoing the inherent limitations on government that
Americans inherited from the English common law, the Federalists
argued that “a bill of rights is not necessary.” 1 ANNALS OF CONG.
456 (1789) ( Joseph Gales ed., 1834) (remarks of Rep. James Madi-
son). That was so, they reasoned, because a bill of rights would be
a mere “declaration of rights” in which the people were already
“secure,” “whether” a bill of rights “declare[d] them or not.” Id. at

5 The Framers also saw Article 1, Section 10, as articulating preexisting limita-
tions on legislative authority. See THE FEDERALIST No. 44 (James Madison)
(“Bills of attainder, ex-post-facto laws, and laws impairing the obligation of
contracts, are contrary to the first principles of the social compact, and to every
principle of sound legislation.”).
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23-10385 ROSENBAUM, J., Concurring 13

742 (remarks of Rep. Roger Sherman).6 In fact, Federalists like

Noah Webster “spoofed Anti-Federalists” who attempted to list the
several rights they misperceived the new federal government to
now be able to abrogate. AKHIL REED AMAR, AMERICA’S
UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE
LIVE BY 124 (2012). For instance, Webster proposed a mocking
amendment that “Congress shall never restrain any inhabitant of
America from eating and drinking, at seasonable times . . . .” Id.
And second, the Federalists argued that enumerating certain
rights “would disparage those rights which were not placed in that
enumeration.” 1 ANNALS OF CONG. 456 (1789) ( Joseph Gales ed.,
1834) (remarks of Rep. James Madison); AMAR, AMERICA’S
UNWRITTEN CONSTITUTION, supra, at 125. To some, the risks

6 Remarks like these were common. See, e.g., 2 DEBATES ON THE ADOPTION
OF THE FEDERAL CONSTITUTION 161–62 (Jonathan Elliot ed., 2d ed., Philadel-
phia, J.B. Lippincott 1891) (remarks of Theophilus Parsons) (“[N]o power was
given to Congress to infringe on any one of the natural rights of the people by
this Constitution; and should they attempt it without constitutional authority,
the act would be a nullity, and could not be enforced.”); Letter from Pierce
Butler to James Iredell (Aug. 11, 1789) (“A few milk-and-water amendments
have been proposed by Mr. M[adison], such as liberty of conscience, a free
press, and one or two general things already well secured.”), reprinted in DAVID
K. WATSON, THE CONSTITUTION OF THE UNITED STATES: ITS HISTORY,
APPLICATION AND CONSTRUCTION 1368 n.21 (1910); Virginia Ratification Con-
vention Debates (June 16, 1788) (remarks of George Nicholas) (“A Bill of
Rights is only an acknowledgement of the pre-existing claim to rights in the
people. They belong to us as much as if they had been inserted in the Consti-
tution.”), reprinted in 10 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF
THE CONSTITUTION 1334 (John P. Kaminski et al. eds., 1993).
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14 ROSENBAUM, J., Concurring 23-10385

enumeration posed were particularly stark because enumeration

could foreclose “the progress of things,” in which we may “discover
some great and Important” right that “we don’t now think of.” Let-
ter from Edmund Pendleton to Richard Henry Lee ( June 14, 1788),
in 8 THE LETTERS AND PAPERS OF EDMUND PENDLETON 532, 532–33
(David John Mays ed., 1967).
Both responses reflected the Framers’ intuitions that enu-
meration wasn’t necessary to preserve Americans’ fundamental
rights. And the Federalists’ second concern emphasized that enu-
meration might even endanger, rather than secure, fundamental
rights.
Still, ultimately, the Federalists agreed to append a Bill of
Rights to the Constitution, in part, to appease the Anti-Federalists.
See, e.g., Letter from George Washington to James Madison (May
31, 1789), reprinted in 2 THE PAPERS OF GEORGE WASHINGTON,
PRESIDENTIAL SERIES 419, 419 (Dorothy Twohig ed., 1987). Madi-
son recognized some of the Anti-Federalists’ concerns. Although
he acknowledged the “force” of the Federalists’ first “observation”
that a Bill of Rights is not necessary, Madison underscored the prac-
tical, “salutary effect against the abuse of power” that enumeration
might provide. 7 1 ANNALS OF CONG. 456–57 (1789) ( Joseph Gales
ed., 1834) (remarks of Rep. James Madison).

7 Madison argued that enumeration would guard against overzealous govern-

ing in all its forms. Enumeration, he said, would “establish the public opinion
in . . . favor” of Americans’ rights and “rouse the attention of the whole
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23-10385 ROSENBAUM, J., Concurring 15

Even so, as to the Federalists’ second concern that a declara-

tion of some rights might undermine rights that base principles of
the social contract and English common law secured, Madison con-
sidered it “one of the most plausible arguments” in opposition to
the Bill. Id. at 456. So the people ratified another amendment to
ensure that “[t]he enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained
by the people.” U.S. CONST. amend. IX.
The Ninth Amendment confirmed what Americans already
understood: “[t]he people were entitled to various preexisting and
customary rights already in place at the Founding” as well as rights
the people inherently “withheld from the government . . . when
government was established.” See AMAR, AMERICA’S UNWRITTEN
CONSTITUTION, supra, at 108–09 (confirming the Ninth Amend-
ment protects rights that people inherently “withheld from the
government . . . when government was established,” which may

community,” helping to “control the majority from those acts to which they
might be otherwise inclined.” 1 ANNALS OF CONG. 455 (1789) (Joseph Gales
ed., 1834) (remarks of Rep. James Madison). And, he continued, enumeration
would “impress some degree of respect for [individual liberties],” especially
among legislators who occupied “the most powerful” branch of government.
Id. at 454–55. Plus, Madison remarked, a declaration of rights could spur the
judiciary “to consider themselves in a peculiar manner the guardians of those
rights.” Id. at 457. In this way, the judiciary could overcome its “natural fee-
bleness” and “continual jeopardy of being overpowered, awed, or influenced
by [the] co-ordinate branches.” THE FEDERALIST NO. 78 (Alexander Hamil-
ton). In sum, Madison found persuasive the realist and political, rather than
the legal, justifications for enumeration. Jud Campbell, Judicial Review and the
Enumeration of Rights, 15 GEO. J.L. & PUB. POL’Y 569, 571 (2017).
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16 ROSENBAUM, J., Concurring 23-10385

still “emerge[] long after the Founding” through “practice[] by each

generation of Americans”); see also Griswold v. Connecticut, 381 U.S.
479, 490 (1965) (Goldberg, J., concurring) (“[T]he Framers did not
intend that the first eight amendments be construed to exhaust the
basic and fundamental rights which the Constitution guaranteed to
the people.”). And that was so whether the Constitution expressly
enumerated those fundamental rights or not.
B. Throughout the Antebellum period, courts secured Americans’
unenumerated, fundamental rights.
As the Founders intended, Antebellum courts routinely en-
forced Americans’ fundamental rights. And both state and federal
courts did so even when the pertinent constitution didn’t have a
textual hook explicitly guaranteeing the right at issue.
1. State courts routinely enforced unenumerated rights
against state abridgment.
State courts commonly enforced fundamental rights. And
they did so even though, as the Supreme Court held in Barron v.
Baltimore, 32 U.S. 243, 250–51 (1833), before the ratification of the
Fourteenth Amendment, the Bill of Rights did not bind them.
State courts also enforced fundamental rights even though state
constitutions did not include all the rights that the federal Consti-
tution’s first eight amendments listed. These so-called “Barron con-
trarian” state courts regularly enforced the Bill of Rights’s limita-
tions in their state.
But they did so not because they disagreed with Barron and
thought the amendments bound “the states of [their] own
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23-10385 ROSENBAUM, J., Concurring 17

legislative force” (though some did so believe). Rather, they en-

forced the Bill of Rights’s limitations because they saw the amend-
ments as “declaratory of certain fundamental common-law rights”
owed to any citizen of a free society. AKHIL REED AMAR, THE BILL
OF RIGHTS: CREATION AND RECONSTRUCTION 147, 153 (1998);
Baude, Campbell & Sachs, supra, at 1200 & n.85.
Consider Nunn v. Georgia, 1 Ga. 243 (1846). There, the Geor-
gia Supreme Court enforced a citizen’s right to bear arms for self-
defense even though the adjudication was not “made on clauses in
the State Constitution[].” Id. at 249. The court dismissed the
right’s unenumerated status as immaterial because the Second
Amendment codified “an unalienable right, which lies at the bot-
tom of every free government,” and the people could not have “in-
tended to confer” the power to abridge it “on the local legislatures.”
Id. at 250. Nunn then confirmed that other fundamental rights, like
the right of the people “to be secure in their persons, houses, pa-
pers, and effects, against unreasonable searches and seizures; in all
criminal prosecutions, to be confronted with the witness against
them; to be publicly tried by an impartial jury; and to have the as-
sistance of counsel for their defence,” were “as perfect under the State
as the national legislature”; they “cannot be violated by either.” Id. at
251 (emphasis in original).
Many courts treated the Takings Clause similarly. New Jer-
sey’s constitution, for instance, did not provide for a right to com-
pensation when the government confiscated private property.
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18 ROSENBAUM, J., Concurring 23-10385

Yet New Jersey’s supreme court rejected the argument that

non-enumeration precluded a plaintiff’s takings claim. The court
explained that the limitation was “operative as a principle of uni-
versal law; and the legislature of this State, can no more take pri-
vate property for public use, without just compensation, than if
this restraining principle were incorporated into, and made part of
its State Constitution.” Sinnickson v. Johnson, 17 N.J.L. 129, 146
(1839); see Young v. McKenzie, 3 Ga. 31, 44 (1847) (enforcing the rights
declared in the Takings Clause because it embodies a “great com-
mon law principle . . . applicable to all republican governments, and
which derived no additional force, as a principle, from being incor-
porated into the Constitution of the United States”); Bradshaw v.
Rodgers, 20 Johns. 103, 105–06 (N.Y. Sup. Ct. 1822) (same); L.C. &
C.R.R. Co. v. Chappell, 24 S.C.L. (Rice) 383, 387, 389 (1838) (same);
Hall v. Washington County, 2 Greene 473, 478 (Iowa 1850) (same);
State v. Glen, 52 N.C. (7 Jones) 321, 330–31 (1859) (same).
These examples are not outliers. The force of preexisting,
fundamental rights was “widespread” in state courts and “reflective
of a serious theory of constitutional government”—even though
the Bill of Rights did not, at that time, bind the states. Jason Maz-
zone, The Bill of Rights in the Early State Courts, 92 MINN. L. REV. 1,
26 n.98, 29–31 (2007).
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23-10385 ROSENBAUM, J., Concurring 19

2. Despite their limited subject-matter jurisdiction, fed-

eral courts also enforced unenumerated rights against
government abridgment.
And federal courts applied that same thinking to many
rights that the Bill of Rights does not expressly declare. Indeed,
federal courts acknowledged and enforced unenumerated rights in
the Antebellum period, although in limited contexts. At that time,
federal courts often lacked jurisdiction over claims that a state de-
nied a citizen’s fundamental rights. Exercised against the states,
those rights, although fundamental, were not federal rights suffi-
cient to trigger federal courts’ arising-under jurisdiction, let alone
one of the Judiciary Act’s limited grants of the Supreme Court’s
appellate jurisdiction. Cf. Calder v. Bull, 3 U.S. (3 Dall.) 386, 392
(1798) (opinion of Chase, J.) (“[T]his court has no jurisdiction to
determine that any law of any state Legislature, contrary to the
Constitution of such state, is void.”). 8 As a result, petitioners could
not pursue state violations of their fundamental rights on appeal
from state courts to the Supreme Court. Compare Trs. of Dartmouth
Coll. v. Woodward, 1 N.H. 111, 114 (1817) (“The legislative power of
this state . . . is limited only by our constitutions and by the funda-
mental principles of all government and the unalienable rights of
mankind.”), with Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4

8 Plus, if a state court upheld a fundamental right as a federal right superior to

a state’s action, the losing party could not appeal its loss to the Supreme Court.
See Judiciary Act of 1789, ch. 20, § 25, 1 Stat. 73, 86 (codified as amended at 28
U.S.C. § 2104); RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER’S THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 25 (7th ed. 2015).
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20 ROSENBAUM, J., Concurring 23-10385

Wheat.) 518, 625, 644–54 (1819) (opinion of Marshall, C.J.) (ruling

only on the Contracts Clause); see also Baude, Campbell & Sachs,
supra, at 1203 (highlighting the same dynamic in Barron).
That said, federal courts did adjudicate fundamental-rights
claims in two circumstances. First, plaintiffs could seek redress for
violations of their fundamental rights under the Constitution’s
Privileges and Immunities Clause, U.S. CONST. art. IV, § 2, cl. 1. (not
to be confused with the Privileges or Immunities Clause, U.S.
CONST. amend. XIV, § 1, which was not ratified until 1868). And
second, courts adjudicated fundamental-rights claims when parties
invoked diversity jurisdiction. I discuss each circumstance in turn.
As to the first circumstance where federal courts adjudicated
fundamental-rights claims, plaintiffs could seek redress for viola-
tions of their fundamental rights under the Constitution’s Privi-
leges and Immunities Clause. At the Founding, the Framers pre-
sumed that a citizen’s home state would guarantee to its citizens
the base freedoms inherent in our social contract. But the Framers
worried that states and their courts might discriminate against out-
of-state Americans. See Erie R. Co. v. Tompkins, 304 U.S. 64, 74 (1938).
So they included the Privileges and Immunities Clause to protect
citizens’ fundamental rights, and they guaranteed a federal forum
to secure the enforcement of those rights. See THE FEDERALIST No.
80 (Alexander Hamilton) (“[I]n order to the inviolable maintenance
of that equality of privileges and immunities to which the citizens
of the Union will be entitled, the national judiciary ought to
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23-10385 ROSENBAUM, J., Concurring 21

preside in all cases in which one State or its citizens are opposed to
another State or its citizens.”).
Corfield v. Coryell is the authoritative case on the matter. 6 F.
Cas. 546 (C.C.E.D. Pa. 1825) (No. 3,230) (Washington, Circuit Jus-
tice). And for our purposes, it both confirms the Founders’ under-
standing of fundamental rights and provides an early template for
how courts applied those initial understandings to distinguish fun-
damental rights from non-fundamental ones.
In Corfield, a Pennsylvania citizen claimed that a New Jersey
law prohibiting him, as a nonresident, from harvesting oysters in
the State violated the Privileges and Immunities Clause because it
deprived him of a right New Jersey guaranteed to its own citizens.
Id. at 551–52. The Court rejected the argument.
The Privileges and Immunities Clause, Justice Washington
clarified, protected only “those privileges and immunities which
are, in their nature, fundamental; which belong, of right, to the cit-
izens of all free governments; and which have, at all times, been
enjoyed by the citizens of the several states which compose this
Union, from the time of their becoming free, independent, and
sovereign.” Id. at 551. Among those rights were “[p]rotection by
the government; the enjoyment of life and liberty, with the right to
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22 ROSENBAUM, J., Concurring 23-10385

acquire and possess property of every kind, and to pursue and ob-
tain happiness and safety.” Id. at 551–52. 9
And under these “general heads” fell many other rights: the
right to “pass through, or to reside in any other state, for purposes
of . . . professional pursuits”; “to claim the benefit of the writ of
habeas corpus; to institute and maintain actions of any kind in the
courts”; “to take, hold and dispose of property”; to be “exempt[]
from higher taxes or impositions than are paid by the other citizens
of the state”; and to participate in “the elective franchise, as regu-
lated and established by the laws or constitution of the state in
which it is to be exercised.” Id. at 552.
But that wasn’t all. Justice Washington recognized that pro-
tected privileges and immunities included “[t]hese, and many oth-
ers which might be mentioned.” Id.
Still, those privileges and immunities did not include oyster
harvesting. The oyster beds at issue were peculiar to New Jersey.
Id. So a right to access them was neither common to all Americans

9 Justice Washington’s qualification that these rights are “subject nevertheless

to such restraints as the government may justly prescribe for the general good
of the whole,” Corfield, 6 F. Cas. at 552, does not undermine the notion that
unenumerated, fundamental rights operate as a limitation on government au-
thority. Rather, Justice Washington’s statement comports with the under-
standing that legislatures could regulate but not abridge people’s rights, a dis-
tinction that turned, in part, on the subject matter of the purported regulation.
See supra note 4; infra Section II; Baude, Campbell & Sachs, supra, at 1196–99,
1237–38. After all, “[n]o fundamental right—not even the First Amendment—
is absolute.” McDonald v. City of Chicago, 561 U.S. 742, 802 (2010) (Scalia, J.,
concurring).
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23-10385 ROSENBAUM, J., Concurring 23

nor inherent in our system of governance. See id. (explaining citi-

zens of the several states are not entitled to participate in rights
“which belong exclusively to the citizens of any other particular
state”). In fact, history and common-law authorities confirmed
that states generally held exclusive rights to certain public re-
sources, like oysters. Id. (quoting 2 HUGO GROTIUS, THE RIGHTS OF
WAR AND PEACE, ch. 2, § 5). Simply, the right to farm them was
one of the “advantages” that states by positive law “secured to their
own citizens.” Id.; see also Baldwin v. Fish & Game Comm’n, 436 U.S.
371, 387 (1978) (“[W]hen [Justice Washington] considered the reach
of the Privileges and Immunities Clause, [he] included in his list of
situations, in which he believed the States would be obligated to
treat each other’s residents equally, only those where a nonresident
sought to engage in an essential activity or exercise a basic right.”).
I pause to emphasize the distinction Justice Washington
made. He interpreted the Privileges and Immunities Clause to pro-
tect the “various preexisting and customary rights already in place
at the Founding” as well as rights the people “withheld from the
government . . . when government was established.” AMAR,
AMERICA’S UNWRITTEN CONSTITUTION, supra, at 108–09 (discussing
plausible interpretations of the Ninth Amendment). That is, Jus-
tice Washington understood the Privileges and Immunities Clause
to protect rights of “general citizenship,” Butler v. Farnsworth, 4 F.
Cas. 902, 903 (C.C.E.D. Pa. 1821) (No. 2,240) (Washington, Circuit
Justice), inherent in all “free Republican governments,” Calder, 3
U.S. (3 Dall.) at 388 (opinion of Chase, J.).
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24 ROSENBAUM, J., Concurring 23-10385

Indeed, many of the Corfield rights are not enumerated in

the Constitution, but we continue to subject laws that burden them
to heightened scrutiny precisely because they concern “fundamen-
tal matter[s] in a free and democratic society,” Reynolds v. Sims, 377
U.S. 533, 561–62 (1964) (right of suffrage), 10 or issues that are “suf-
ficiently basic to the livelihood of the Nation,” United Bldg. & Con-
str. Trades Council v. Mayor and Council of Camden, 465 U.S. 208, 219,
221 (1984) (quoting Baldwin, 436 U.S. at 383) (pursuit of a common
calling in the various states).
In contrast, when governments guarantee a claimed right
under only some circumstances—such that we can say the right is
not truly common to all free governments—we generally defer to
regulations of that purported right that require “each citizen to so

10 Justice Washington’s mention of voting rights underscores another similar-

ity between Antebellum jurisprudence and our current doctrine. Justice
Washington recognized that states may prescribe regulations on rights to suf-
frage, Corfield, 6 F. Cas. at 552; see U.S. CONST. art. I, § 2, cl. 1, but posited that
the Privileges and Immunities Clause could bar deprivations of the franchise
to those otherwise-eligible individuals who moved from another state, see Ab-
bot v. Bayley, 23 Mass. 89, 92 (1827). This understanding correlates with mod-
ern doctrine’s recognition that, although Americans don’t have the right to
vote for every government office, “once the franchise is granted to the elec-
torate, lines may not be drawn which are inconsistent with the Equal Protec-
tion Clause of the Fourteenth Amendment.” Harper v. Virginia Bd. of Elections,
383 U.S. 663, 665 (1966). So for instance, a state would abridge a citizen’s fun-
damental right to vote by imposing unduly restrictive residency requirements
on suffrage. See, e.g., Carrington v. Rash, 380 U.S. 89, 96 (1965); Dunn v. Blum-
stein, 405 U.S. 330, 360 (1972).
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23-10385 ROSENBAUM, J., Concurring 25

conduct himself . . . as not unnecessarily to injure another.” Munn,

94 U.S. at 124.
And modern jurisprudence adopts this way of distinguishing
between fundamental and non-fundamental rights. See, e.g., Meyer
v. Nebraska, 262 U.S. 390, 403 (1923) (overturning a conviction for
teaching German because “[n]o emergency has arisen which ren-
ders knowledge by a child of some language other than English so
clearly harmful as to justify its inhibition with the consequent in-
fringement of rights long freely enjoyed”). As Section I.C. of this
Concurrence explains, the Fourteenth Amendment’s drafters relied
heavily on Corfield’s conception of fundamental rights in crafting
Section One of that amendment. The drafters considered funda-
mental those rights that people throughout the several states “have,
at all times, . . . enjoyed.” Corfield, 6 F. Cas. at 551. And now, to
identify whether a claimed right is fundamental, our current sub-
stantive-due-process jurisprudence calls for such an analysis of
trends across jurisdictions. So Corfield shows that modern funda-
mental-rights doctrine generally secures those rights our Founders
intended for the courts to protect.
Returning to the two circumstances in which courts adjudi-
cated fundamental-rights claims in Antebellum times, the second
circumstance occurred when parties invoked diversity jurisdiction.
Diversity jurisdiction enabled federal courts to resolve claims on
non-federal grounds. So plaintiffs could petition federal courts to
review state legislative actions that they thought improperly
abridged their fundamental rights. See Laurence H. Tribe,
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26 ROSENBAUM, J., Concurring 23-10385

Substantive Due Process, in 5 ENCYCLOPEDIA OF THE AMERICAN

CONSTITUTION 2570 (Leonard W. Levy & Kenneth L. Karst eds.,
2000).
Terrett v. Taylor offers a good example of this. 13 U.S. (9
Cranch) 43 (1815). There, Justice Story denied Virginia’s attempt
to seize land that Virginia’s colonial government had granted to the
Episcopal Church. Id. at 43, 50–52. Although no state constitu-
tional provision barred Virginia’s legislation, the Court struck it
down as “utterly inconsistent with a great and fundamental princi-
ple of a republican government.” Id. at 50–51.
Terrett’s resolution and its reasoning mirrored those of the
“vested-rights” cases in which the Supreme Court enforced unwrit-
ten limitations on states’ legislative authority over property. In
Fletcher v. Peck, for instance, “the unanimous opinion of the court”
confirmed that Georgia could not revoke its prior land grants “ei-
ther by general principles which are common to our free institu-
tions, or by the particular provisions of the constitution of the
United States.” 10 U.S. (6 Cranch) 87, 139 (1810) (opinion of Mar-
shall, C.J.); see also id. at 132 (opinion of Johnson, J.) (“I do not hes-
itate to declare that a state does not possess the power of revoking
its own grants. But I do it on a general principle, on the reason and
nature of things . . . .”).
And in Wilkinson v. Leland, Justice Story affirmed the princi-
ples set forth in Taylor. He explained the “fundamental maxims of
a free government seem to require, that the rights of personal lib-
erty and private property should be held sacred,” so no legislative
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23-10385 ROSENBAUM, J., Concurring 27

act could “transfer the property of A. to B. without his consent.”

Wilkinson, 27 U.S. (2 Pet.) at 657. Indeed, “no [such] case . . . has
ever been held a constitutional exercise of legislative power in any
state in the union.” Id. And that principle has been firmly estab-
lished by the Court since Calder v. Bull. See 3 U.S. (3 Dall.) at 388
(opinion of Chase, J.) (“[A] law that takes property from A. and
gives it to B . . . is against all reason and justice, for a people to
entrust a Legislature with [such] powers”).
To be sure, some contested the reasoning of these decisions.
See id. at 399 (opinion of Iredell, J.) (“[T]he Court cannot pro-
nounce [a legislative act] to be void, merely because it is, in their
judgment, contrary to the principles of natural justice.”). But those
views were outliers at the time. Frederick Mark Gedicks, An
Originalist Defense of Substantive Due Process: Magna Carta, Higher-
Law Constitutionalism, and the Fifth Amendment, 58 EMORY L.J. 585,
651 (2009). And even those jurists acknowledged that unenumer-
ated rights ought to at least inform their reading of statutes. See,
e.g., Minge v. Gilmour, 17 F. Cas. 440, 444 (C.C.D.N.C. 1798) (No.
9,631) (Iredell, Circuit Justice).
Plus, others who disfavored applying unenumerated funda-
mental rights as a matter of federal law acknowledged their force
when a plaintiff invoked the federal courts’ diversity jurisdiction.
See, e.g., Citizens’ Sav. & Loan Ass’n v. City of Topeka, 87 U.S. (20
Wall.) 655, 662–63 (1875) (Miller, J.) (“[T]here are such rights in
every free government beyond the control of the State. . . . There
are limitations on such power which grow out of the essential
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28 ROSENBAUM, J., Concurring 23-10385

nature of all free governments. Implied reservations of individual

rights, without which the social compact could not exist, and which
are respected by all governments entitled to the name.”). So these
disagreements stemmed from a perceived lack of federal authority
to enforce unenumerated fundamental rights, at least in some
cases. But as I discuss later, the Fourteenth Amendment dispelled
that misguided perception.
Ultimately, it’s unsurprising that each of these vested-rights
cases sounds in the unenumerated-rights language state courts em-
ployed in enforcing the rights that the Takings Clause embodies.11
And we can say the same thing about Justice Washington’s ap-
proach to fundamental rights in Corfield; his opinion applies the
same principles that drove state courts to apply substantive Bill-of-

11 The fundamental-rights rationale pervaded vested-rights cases in state

courts as well. See, e.g., Regents of the Univ. of Md. v. Williams, 9 G. & J. 365, 408
(Md. 1838) (“And independently of the constitution of the United States, and
of this state, that act is void as opposed to the fundamental principles of right
and justice, inherent in the nature and spirit of the social compact.”); White v.
White, 4 How. Pr. 102, 111 (N.Y. Sup. Ct. 1849) (“[T]he security of the citizen
against such arbitrary legislation rests upon the broader and more solid ground
of natural rights, and is not wholly dependent upon these negatives upon the
legislative power contained in the constitution. . . . The exercise of such a
power is incompatible with the nature and objects of all governments, and is
destructive to the great end and aim for which government is instituted, and
is subversive of the fundamental principles upon which all free governments
are organized.”); Currie’s Adm’rs v. Mut. Assur. Soc’y, 14 Va. (4 Hen. & M.) 315,
438–39 (1809) (“[The] legislature is bounded . . . by the principles and provi-
sions of the constitution and bill of rights, and by those great rights and prin-
ciples, for the preservation of which all just governments are founded.”).
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23-10385 ROSENBAUM, J., Concurring 29

Rights protections. These cases reflect the dominant jurisprudence

of the Antebellum period: Both state and federal courts, when con-
fronted with alleged abridgments of fundamental rights, consid-
ered whether the claimed state action burdened a liberty interest
that our system of government inherently protects. Both sets of
courts asked whether the people implicitly withheld the claimed
right at the formation of government, whether the right was com-
mon to Americans across the several states, and whether it had
been historically subject to government regulation or abridgment.
If these considerations sound familiar, it’s because they are.
As I discuss further in Section II, they are essentially the same in-
quiries we conduct under modern substantive-due-process doc-
trine.
The key distinction between our modern jurisprudence and
that of the Antebellum period is that, during the Antebellum pe-
riod, the federal government did not enjoy the same authority it
later gained to guarantee Americans’ fundamental rights. But as
the next section shows, the drafters of the Fourteenth Amendment
expanded that authority.
C. Americans ratified the Fourteenth Amendment to ensure the fed-
eral government, including its courts, would secure unenumerated
fundamental rights against state abridgment.
The drafters of the Fourteenth Amendment intended to
make more readily available federal enforcement of Americans’
fundamental rights. As I’ve mentioned, until that time, the Consti-
tution and Bill of Rights generally did not open federal courts to
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30 ROSENBAUM, J., Concurring 23-10385

fundamental-rights claims. “Under Article IV’s Privileges and Im-

munities Clause, Corfield rights were enforceable only by out-of-
state citizens,” and “under Barron, the rights set out in the first eight
amendments were enforceable only against the federal govern-
ment. Congress thus lacked broader power to secure general fun-
damental rights against state abridgment.” Baude, Campbell &
Sachs, supra, at 1218; see CONG. GLOBE, 39th Cong., 1st Sess. 2765
(1866) (statement of Sen. Jacob Howard). Of course, that was a
feature of the Framers’ constitutional design; the Framers assumed
states would secure their citizens’ fundamental rights.
But by the Civil War, practice had proven that wasn’t neces-
sarily the case. So although the Constitution and Bill of Rights de-
clared some of the fundamental rights guaranteed to the people,
individuals could not depend on an ability to enforce those rights.
As Representative John Bingham, the main drafter of the Four-
teenth Amendment, summarized,

No State ever had the right, under the forms of law

or otherwise, to deny to any freeman the equal
protection of the laws or to abridge the privileges
or immunities of any citizen of the Republic, alt-
hough many of them have assumed and exercised the
power, and that without remedy.
CONG. GLOBE, 39th Cong., 1st Sess. 2542 (1866) (statement
of Rep. John Bingham) (emphasis added).
The Georgia Supreme Court offers a good example of the
trend John Bingham observed. In the mid-1840s, that tribunal
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23-10385 ROSENBAUM, J., Concurring 31

secured many individual rights that Georgia’s constitution had not

enumerated. See, e.g., Nunn, 1 Ga. at 249, 251 (right to bear arms,
as well as other Bill-of-Rights guarantees); McKenzie, 3 Ga. at 41–42
(takings). But by 1848, the Court clarified that “[f ]ree persons of
color” did not possess many of those rights, as they were not “citi-
zens.” Cooper v. City of Savannah, 4 Ga. 68, 72 (1848). So, the court
held, they were “not entitled to bear arms, vote for members of the
legislature, or to hold any civil office.” Id.
And Cooper was part of a larger trend; other states’ supreme
courts routinely ratified their state’s denials of Black Americans’
fundamental rights. See, e.g., Amy v. Smith, 11 Ky. (1 Litt.) 326, 334
(1822) (upholding law restricting free Black Americans’ right to file
lawsuits); Indiana v. Cooper, 5 Blackf. 258, 259 (Ind. 1839) (upholding
law requiring bond for free Black Americans traveling in the state);
Nelson v. Illinois, 33 Ill. 390, 395 (1864) (upholding law excluding free
Black Americans from “emigration” to and “settlement in” Illi-
nois). Indeed, this trend perhaps reached its awful apex in the no-
torious U.S. Supreme Court case Dred Scott v. Sandford. 60 U.S. (19
How.) 393 (1857) (holding that the Constitution did not extend
American citizenship, with its attendant rights and privileges, to
Black Americans and that slaves are “property” within the meaning
of the Due Process Clause).
Most prominently, the states involved in this trend and this
line of cases denied the fundamental rights that the Civil Rights Act
of 1866 aimed to secure: namely, Black Americans’ rights “to make
and enforce contracts, to sue, be parties, and give evidence, to
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32 ROSENBAUM, J., Concurring 23-10385

inherit, purchase, lease, sell, hold, and convey real and personal
property, and to full and equal benefit of all laws and proceedings
for the security of person and property . . . .” Ch. 31, § 1, 14 Stat.
27 (codified as amended at 42 U.S.C. §§ 1981(a), 1982).
But the Fourteenth Amendment’s drafters expressed out-
rage at these deprivations. They were concerned because Black
Americans had been denied equal rights. And they also clarified
that the federal government should play a role in enforcing all
Americans’ fundamental rights. After all, fundamental rights are
“certain absolute rights which pertain to every citizen, which are
inherent, and of which a State cannot constitutionally deprive
him.” CONG. GLOBE, 39th Cong., 1st Sess. 1833 (1866) (statement
of Rep. William Lawrence) (emphasis added); see id. at 1757 (state-
ment of Sen. Lyman Trumbull) (explaining the Civil Rights Act se-
cures “inherent, fundamental rights which belong to free citizens
or free men in all countries, . . . and they belong to them in all the
States of the Union”).
Crucially, the Fourteenth Amendment’s drafters understood
fundamental rights to encompass more than those that the Consti-
tution’s first eight amendments identify. They invoked the social-
contract precepts that animated the Framers’ view of Americans’
fundamental rights. See, e.g., id. at 1118 (statement of Rep. James
Wilson) (explaining the rights of “general citizenship” are those
that “a citizen does not surrender because he may happen to be a
citizen of the State which would deprive him of them . . . .”).
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23-10385 ROSENBAUM, J., Concurring 33

In fact, they often referenced Corfield’s broad understanding

of fundamental rights. See, e.g., id. at 1117–18 (statement of Rep.
James Wilson) (quoting 6 F. Cas. at 551–52); id. at 2765 (statement
of Sen. Jacob Howard) (same); see also JOHN HART ELY, DEMOCRACY
AND DISTRUST 29 (1980) (confirming the Fourteenth Amendment’s
“framers repeatedly adverted to the Corfield discussion as the key
to what they were writing”). So perhaps it’s unsurprising that Sec-
tion 1 of the Fourteenth Amendment, which, among other things,
prohibits states from “depriv[ing] any person of life, liberty, or
property, without due process of law,” echoes Corfield’s recognition
of the right to “[p]rotection by the government; the enjoyment of
life and liberty, with the right to acquire and possess property of
every kind, and to pursue and obtain happiness and safety,” 6 F. Cas.
at 551–52.
And the Framers of the Fourteenth Amendment near-uni-
versally employed the broad language characteristic of fundamen-
tal-rights jurisprudence—not just of the jurisprudence of their
time but also of ours. Compare CONG. GLOBE, 39th Cong., 1st Sess.
3031 (1866) (statement of Sen. John Henderson) (“the rights that
attach to citizenship in all free Governments”), id. at 1833, 1836
(statement of Rep. William Lawrence) (rights that are “inherent in
every citizen of the United States” and “exist anterior to and inde-
pendently of all laws and all constitutions”), and id. at 1089 (state-
ment of Rep. John Bingham) (rights “universal and independent of
all local State legislation”), with Holden v. Hardy, 169 U.S. 366, 389
(1898) (rights “which inhere in the very idea of free government”),
Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (rights which are “so
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34 ROSENBAUM, J., Concurring 23-10385

rooted in the traditions and conscience of our people as to be

ranked as fundamental”), overruled by Malloy v. Hogan, 378 U.S. 1
(1964), and Palko v. Connecticut, 302 U.S. 319, 325 (1937) (rights
which strike at the “very essence of a scheme of ordered liberty”),
overruled by Benton v. Maryland, 395 U.S. 784 (1969).
In other words, the Fourteenth Amendment’s drafters, in ex-
plaining their intent, conveyed that Americans are entitled to a set
of fundamental rights, which “cannot be fully defined in their en-
tire extent and precise nature” but to which “should be added the
personal rights guaranteed and secured by the first eight amend-
ments of the Constitution.” CONG. GLOBE, 39th Cong., 1st Sess.
2765 (1866) (statement of Sen. Jacob Howard) (emphasis added);
see id. (“[H]ere is a mass of privileges, immunities, and rights, some
of them secured by the second section of the fourth article of the
Constitution, which I have recited, some by the first eight amend-
ments of the Constitution.” (emphasis added)).
To that end, Representative Bingham proposed a constitu-
tional amendment to secure federal enforcement of those rights.
Echoing Antebellum jurisprudence, he noted that, although the
Framers assumed Americans enjoyed a set of fundamental rights
that no state could deny, “[a] grant of power . . . is a very different
thing from a bill of rights.” Id. at 1093 (statement of Rep. John
Bingham). Before the Fourteenth Amendment, fundamental
rights largely were not federally enforceable rights. And the federal
government could ensure they became so only if an amendment
“vested [the federal government] with power to hold [the states] to
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23-10385 ROSENBAUM, J., Concurring 35

answer before the bar of national courts.” Id. at 1090 (statement of

Rep. John Bingham).
As the Supreme Court later confirmed, “one of the primary
purposes . . . of the Fourteenth Amendment was . . . to eliminate
doubt as to the constitutional validity of the Civil Rights Act as ap-
plied to the States.” Hurd v. Hodge, 334 U.S. 24, 32–33 (1948). In
other words, the Fourteenth Amendment sought to end any ques-
tion of the constitutionality of federal civil-rights legislation. The
drafters were concerned at the time about the Civil Rights Act’s
private right of action, which secured a federal forum for plaintiffs
to enforce their rights, ch. 31, § 3, 14 Stat. 27 (1866) (codified as
amended at 42 U.S.C. § 1988). But the Fourteenth Amendment also
ensured the constitutionality of the legislation that followed it, in-
cluding 42 U.S.C. § 1983, see Ku Klux Klan Act of 1871, ch. 22, 17
Stat. 13 (codified as amended at 42 U.S.C. §§ 1983, 1985–1986). 12

12Although the Fourteenth Amendment sought to enable Congress to enact

private rights of action, Congress may “enforce” the Fourteenth Amendment
through other means, too. U.S. CONST. amend. XIV, § 5. The Fourteenth
and Fifteenth Amendments’ drafters understood each amendment’s enforce-
ment section to implement the expansive language of McCulloch v. Maryland.
See CONG. GLOBE, 39th Cong. 1st Sess. 1118 (1866) (remarks of Rep. James
Wilson) (quoting 17 U.S. (4 Wheat.) 316, 421 (1819)). So the Reconstruction
Amendments support “broad congressional power to administer strong and
even selective medicine to individual states” that have often abridged Ameri-
cans’ fundamental rights. Akhil Reed Amar, The Lawfulness of Section 5 — and
Thus of Section 5, 126 HARV. L. REV. F. 109, 114 (2013) (emphasis omitted). For
instance, Congress may “enact reasonably prophylactic remedial legislation,”
Tennessee v. Lane, 541 U.S. 509, 523 (2004), and, when necessary, even require
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36 ROSENBAUM, J., Concurring 23-10385

After rounds of revision, Representative Bingham intro-

duced a version of the Fourteenth Amendment that resembled its
final form. That revision’s Section One includes precisely the same
second sentence as the one in the version of the Fourteenth
Amendment that Congress ultimately ratified:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any
person of life, liberty, or property without due pro-
cess of law; nor deny to any person within its juris-
diction the equal protection of the laws.
CONG. GLOBE, 39th Cong., 1st Sess. 2542 (1866) (statement
of Rep. John Bingham). As Bingham introduced it, he emphasized
that “[t]he necessity for the first section of this amendment . . . is
one of the lessons that have been . . . taught to all the people of this
country by the history of the past four years of terrific conflict.”
Id. “[T]hat is, to protect by national law the privileges and immunities
of all the citizens of the republic and the inborn rights of every per-
son within its jurisdiction whenever the same shall be abridged or
denied by the unconstitutional acts of any State.” Id. (emphases
added). Simply, the drafters intended, and Americans understood,13

that states preclear certain laws with the federal government, see South Caro-
lina v. Katzenbach, 383 U.S. 301, 330 (1966).
13 Recent scholarship has shown that the Congressional Globe is highly probative

not just of legislative intent but also the public meaning of the Fourteenth
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23-10385 ROSENBAUM, J., Concurring 37

the Fourteenth Amendment to enable federal courts to protect all

fundamental rights, not just those enumerated in the Constitu-
tion’s amendments. Indeed, the text of the amendment reflects
that on its face.
After all, Section One purposely employs expansive lan-
guage. Had the drafters envisioned a narrow conception of Amer-
icans’ liberties, they would have listed or referred to those the Bill
of Rights protects. Instead, they recognized that Americans’ rights
“cannot be fully defined in their entire extent and precise nature.”
Id. at 2765 (statement of Sen. Jacob Howard). The drafters “did not
presume to know the extent of freedom in all of its dimensions,”
so they used broad but clear terms to “entrust[] to future genera-
tions a charter protecting the right of all persons to enjoy liberty as
we learn its meaning.” Obergefell v. Hodges, 576 U.S. 644, 664 (2015).
Our duty to secure Americans’ fundamental rights inheres in the
Constitution’s text and history.

Amendment. See Rachel A. Shelden, Finding Meaning in the Congressional Globe:

The Fourteenth Amendment and the Problem of Constitutional Archives, 2 J. AM.
CON. HIST. 715, 730–33 (2024). The Globe seldom contained speeches made to
an invested congressional audience; instead, it reprinted curated addresses that
representatives wished to make to their constituents. Id. at 727–30. So it offers
a unique snapshot of “a congressman’s sense of what mattered to people in
their home districts,” id. at 731, and therefore reflects part of an “expressive of
a feedback loop in which constituents and their representatives conveyed their
views to one another,” id. at 732.
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38 ROSENBAUM, J., Concurring 23-10385

* * *
Ultimately, our modern doctrine successfully discharges that
duty. To be sure, the Supreme Court has concluded it does so un-
der the Due Process Clause instead of the Privileges or Immunities
Clause. See McDonald v. City of Chicago, 561 U.S. 742, 758–59 (2010)
(plurality opinion); cf. Slaughter-House Cases, 83 U.S. 36, 79 (1872)
(Miller, J.) (interpreting the Privileges or Immunities clause to cover
only rights peculiar to federal citizenship). But the only conclusion
that the Founding, Antebellum, and Reconstruction history sup-
ports is that our modern rights jurisprudence (which enforces fun-
damental but unenumerated rights) accurately reflects our Found-
ers’ intentions, regardless of the textual hook. Cf. Dobbs v. Jackson
Women’s Health Org., 597 U.S. 215, 240 n.22 (2022) (quoting Corfield,
6 F. Cas. at 551–52).
So most respectfully, the common refrain that “substantive
due process” is oxymoronic, see, e.g., Sosa, 57 F.4th at 1306; Eknes-
Tucker v. Governor of Alabama, 114 F.4th 1241, 1244 (11th Cir. 2024)
(Pryor, C.J., respecting the denial of rehearing en banc), misses the
point. Perhaps homing the protection of fundamental rights in the
Due Process Clause instead of the Privileges or Immunities Clause
leaves room for debate. 14 But homing them somewhere in the Con-
stitution does not.

14 My point is a pretty narrow one: if the Court is interpreting the Due Process
Clause in accordance with Americans’ intentions when they ratified the Four-
teenth Amendment, stare decisis requires consistency in our fundamental-
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Our doctrine sometimes imperfectly yet accurately captures

the Constitution’s text and its animating principles. See Gundy v.
United States, 588 U.S. 128, 166–67 (2019) (Gorsuch, J., dissenting)
(“When one legal doctrine becomes unavailable to do its intended
work, the hydraulic pressures of our constitutional system some-
times shift the responsibility to different doctrines.” (citing McDon-
ald, 561 U.S. at 758) (plurality opinion)). But that is not a reason to
abandon settled principles of constitutional jurisprudence.
The history is unambiguous. It shows beyond dispute that
the Constitution secures unenumerated rights and that the Consti-
tution includes textual provisions to advance that purpose. That
we interpret the Constitution to do so and to be faithful to the prin-
ciples that animated the Founders and Fourteenth Amendment rat-
ifiers is more important than which textual provision we read as
doing so.

rights jurisprudence. We can conclude that our current doctrine—though in

Judge Newsom’s considered view, homed in the incorrect constitutional
text—still accords with the original understanding of the Fourteenth Amend-
ment’s Section One. And we can also recognize that a doctrinal shift to the
Privileges or Immunities Clause may introduce to our fundamental-rights ju-
risprudence methodological or substantive error by destabilizing a century
and a half of law. Cf. Payne v. Tennessee, 501 U.S. 808, 827 (1991) (explaining
stare decisis “promotes the evenhanded, predictable, and consistent develop-
ment of legal principles . . . and contributes to the actual and perceived integ-
rity of the judicial process”). So without more, I am unconvinced that sub-
stantive due process—an accurate (yet purportedly imperfect) reflection of our
predecessors’ aims—is an approach to constitutional interpretation that we
should leave behind.
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40 ROSENBAUM, J., Concurring 23-10385

The important question, then, is not whether the Due Pro-

cess Clause is the proper textual hook for the doctrine. Rather, the
important question is whether our current doctrine protects, in es-
sence, the rights that Americans at the Founding and at the ratifi-
cation of the Fourteenth Amendment intended courts to secure
from government interference. And as Section II explains, I think
our current doctrine does.
II. Substantive due process sufficiently reflects the Found-
ers’ intentions of how courts would secure Americans’
fundamental rights.
The Fourteenth Amendment guarantees everyone due pro-
cess of law, opens the federal courts to claims of state deprivations
of fundamental rights, and enables the federal government to en-
force those protections.
And that brings me to the next point. As substantive due
process developed in the decades after the Fourteenth Amend-
ment’s ratification, fundamental-rights jurisprudence has more or
less matched the understandings Americans had at the Founding
and at the time the states ratified the Fourteenth Amendment.
The rest of this section proceeds in two parts. First, I review
today’s substantive-due-process doctrine. Then, I highlight the key
similarities between our doctrine and the principles our history il-
lustrates.
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23-10385 ROSENBAUM, J., Concurring 41

A. Modern jurisprudence secures fundamental rights that are

deeply rooted in this nation’s history and tradition.
Today, when a plaintiff alleges a violation of their unenumer-
ated fundamental rights, we generally employ a two-step inquiry
under substantive due process to resolve the claim. At the first step,
we determine whether a right is “fundamental.” See Washington v.
Glucksberg, 521 U.S. 702, 710 (1997). And at the second, we scruti-
nize the government action either strictly or loosely depending on
whether the right asserted is fundamental.
If the right is fundamental, then we presume the govern-
ment action is wrongful, and the government must show its action
is “narrowly tailored to serve a compelling state interest.” Reno v.
Flores, 507 U.S. 292, 302 (1993). 15 But if the right is not fundamen-
tal, then we presume the government action lawful, and we uphold
the law as long as it is “rationally related to legitimate government
interests.” Glucksberg, 521 U.S. at 728. This rational-relation test is
particularly light-handed—much like a “sieve,” Eknes-Tucker, 114
F.4th at 1296 (Rosenbaum, J., dissenting from the denial of

15 Alternatively, Supreme Court precedent has suggested that a regulatory tra-

dition may establish the constitutionality of a law. See United States v. Rahimi,
602 U.S. 680, 691 (2024) (explaining “if a challenged regulation fits within [our
regulatory] tradition, it is lawful”); Jackman v. Rosenbaum Co., 260 U.S. 22, 31
(1922) (“If a thing has been practiced for two hundred years by common con-
sent, it will need a strong case for the Fourteenth Amendment to affect it.”).
So even if a plaintiff establishes at step one of our fundamental-rights analysis
that the constitution protects “a liberty interest . . . generally speaking, that
must give way when there is a tradition denying the specific application of that
general interest.” Kerry v. Din, 576 U.S. 86, 95 (2015) (plurality opinion).
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42 ROSENBAUM, J., Concurring 23-10385

rehearing en banc)—because we sustain the government’s action if

“there is any reasonably conceivable state of facts that could pro-
vide a rational basis” for it. FCC v. Beach Commcn’s, Inc., 508 U.S. 307,
313 (1993); see Williamson v. Lee Optical of Oklahoma Inc., 348 U.S.
483, 488 (1955).
That is not to say rational-basis review is completely tooth-
less. Courts have stricken action a government has taken under a
mere “pretext of executing its powers.” McCulloch, 17 U.S. (4
Wheat.) at 423. Typically, we have done so when the facts reveal
that a government’s claim to regulate for the public welfare is just
a pretext for its true, “bare . . . desire to harm a politically unpopular
group.” USDA v. Moreno, 413 U.S. 528, 534 (1973); accord Zobel v.
Williams, 457 U.S. 55, 61–63 (1982); City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 446–47 (1985); Romer v. Evans, 517 U.S. 620, 635
(1996). But these cases are few and far between.
The upshot of the difference between strict and rational-ba-
sis scrutiny, then, is that the most important substantive-due-pro-
cess question is whether the claimed right is “fundamental.” After
all, the answer to that question often predicts whether the chal-
lenged law will stand or fall.
To determine whether a right qualifies as “fundamental,” we
assess whether the right is “deeply rooted in this Nation’s history
and tradition, and implicit in the concept of ordered liberty, such
that neither liberty nor justice would exist if they were sacrificed.”
Glucksberg, 521 U.S. at 721 (cleaned up). One way to ascertain that
a right is “deeply rooted in this Nation’s history and tradition” or
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23-10385 ROSENBAUM, J., Concurring 43

“implicit in the concept of ordered liberty” is its enumeration in

the first eight amendments. See Dobbs, 597 U.S. at 237.
But the Due Process Clause does not protect those rights
merely “because [they] are enumerated in the first eight Amend-
ments”; it does so at least largely because those rights are “of such
a nature that they are included in the conception of due process of
law.” Twining v. New Jersey, 211 U.S. 78, 99 (1908), overruled by Mal-
loy, 378 U.S. at 6; see Hurtado v. California, 110 U.S. 516, 538 (1884)
(declining to incorporate the Fifth Amendment right to a grand-
jury indictment). So the bottom-line inquiry for any right the Four-
teenth Amendment secures, enumerated or unenumerated, is
whether “our Nation’s history, legal traditions, and practices” con-
firm that it is deeply rooted and implicit in our concept of ordered
liberty. Glucksberg, 521 U.S. at 710; cf. Poe v. Ullman, 367 U.S. 497, 554
(1961) (Harland, J., dissenting) (“[C]onclusive, in my view, is the ut-
ter novelty of this enactment.”).
When we conduct this inquiry, we often begin with the Eng-
lish common law or, in some cases, even further back with the
right’s “ancient origins.” Obergefell, 576 U.S. at 659 (discussing mar-
riage). Core legal documents (such as the Magna Carta), parlia-
mentary acts, and landmark British cases often supply the relevant
principle or applicable rule of decision at common law. See, e.g.,
Hurtado, 110 U.S. at 522 (citing the Magna Carta); Slaughter-House
Cases, 83 U.S. at 65–66 (explaining “the Parliament of Great Britain
. . . continued to grant to persons and corporations exclusive privi-
leges,” just like Louisiana did to the slaughter-house at issue). And
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44 ROSENBAUM, J., Concurring 23-10385

often, old legal treatises make an appearance—mostly from the re-

curring cast of Bracton, Coke, Hale, and Blackstone—to solidify
our understanding of the prevailing legal norms. See, e.g., Hurtado,
110 U.S. at 522; Glucksberg, 521 U.S. at 710–12; Obergefell, 576 U.S. at
659–60; Dobbs, 597 U.S. at 272.
We rely on these sources because the Framers assumed that
Americans enjoyed many of the same “guaranties and immunities
which we had inherited from our English ancestors.” Robertson,
165 U.S. at 281. But we have noted their limits as well: “The com-
mon law, of course, developed over time,” and the Framers did not
import English common law wholesale. New York State Rifle & Pis-
tol Ass’n v. Bruen, 597 U.S. 1, 35 (2022). So a “long, unbroken line of
common-law precedent stretching from Bracton to Blackstone is
far more likely to be part of our law than a short-lived, 14th-century
English practice.” Id.
Next in our inquiry, we usually survey state and federal law
relating to the claimed right at the Founding or the ratification of
the Fourteenth Amendment. For instance, in declaring that the
Due Process Clause incorporated the Eighth Amendment’s protec-
tion against excessive fines, the Supreme Court found that (a) at the
time of the Founding, “the constitutions of eight States—account-
ing for 70% of the U.S. population—forbade excessive fines,” and
(b) in 1868, “upon ratification of the Fourteenth Amendment,” the
“constitutions of 35 of the 37 States—accounting for over 90% of
the U.S. population—expressly prohibited excessive fines.” Timbs v.
Indiana, 586 U.S. 146, 152 (2019); see also Glucksberg, 521 U.S. at 713–
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23-10385 ROSENBAUM, J., Concurring 45

16 (surveying the development of American legislation about sui-

cide in rejecting a claim that a right to end one’s life is fundamen-
tal).
But constitutional provisions and statutes are not the only
sources of law we review—any source probative of our actual “le-
gal traditions and practices” can be helpful. See AMAR, AMERICA’S
UNWRITTEN CONSTITUTION, supra, at 103 (“Simply put, many of
the . . . rights of the people . . . may be found in everyday American
life—in the practices of ordinary Americans as they go about their
affairs and in patterns of laws and customs across the land.”). So
for instance, we note how often executive officials or the courts
protected a claimed right, as well as how often they enforced any
purported prohibitions on that right. See, e.g., Lawrence v. Texas, 539
U.S. 558, 569 (2003) (recognizing sodomy laws were rarely “en-
forced against consenting adults acting in private”). We also con-
sider newspapers, periodicals, or other materials that show that
Americans “widely held” a particular view about the claimed right.
See, e.g., Heller, 554 U.S. at 615 (relying on “an editorial” to deter-
mine the Second Amendment’s scope).
These authorities are important because they reveal the un-
derstandings of “those who ratified and adopted the relevant con-
stitutional provision.” Nat’l Rifle Ass’n v. Bondi, 61 F.4th 1317, 1322
(11th Cir.), reh’g en banc granted, opinion vacated, 72 F.4th 1346 (11th
Cir. 2023). So they offer insight into the rights the people under-
stood the Fourteenth Amendment to protect when they voted for
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46 ROSENBAUM, J., Concurring 23-10385

it. And that provides a substantial “claim to democratic legitimacy”

when we declare government action invalid. Id.
Besides evidence from the Founding and Reconstruction, in
determining whether a right is fundamental, we also look to mod-
ern statutory and constitutional trends among states, as well as
other sources probative of the current, prevailing legal practices.
Often, our review confirms the conclusion we gleaned from the
historical materials. See, e.g., Timbs, 586 U.S. at 153 (“Today, ac-
knowledgment of the right’s fundamental nature remains wide-
spread.”); Glucksberg, 521 U.S. at 719 (“[T]he States are currently en-
gaged in serious, thoughtful examinations of physician-assisted su-
icide and other similar issues.”). But other times, it highlights a
radical departure from antiquated ideals. See Obergefell, 576 U.S. at
664.
And that departure may deserve recognition. Legal norms
at common law, at the time of the Founding, and at the ratification
of the Fourteenth Amendment are imperfect proxies of the rights
the “people” retained. After all, not all the “people” could vote to
ratify the Constitution or adopt the Fourteenth Amendment.
Women couldn’t vote until two decades into the 20th century. See
Minor v. Happersett, 88 U.S. 162, 171 (1874); U.S. CONST. amend. XIX;
see also Dobbs, 597 U.S. at 372–73 (Breyer, J., dissenting). And it
wasn’t until a century after the ratification of the Fourteenth
Amendment that we legislatively ensured non-whites’ access to the
franchise. See Voting Rights Act of 1965, Pub. L. No. 89-110, 79
Stat. 437 (codified as amended at 52 U.S.C. §§ 10101, 10301–14,
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23-10385 ROSENBAUM, J., Concurring 47

10501–08, 10701–02). So more recent laws, practices, and under-

standings can provide a much-needed view of what rights all the
people “retained.”
But more to the point, such an inquiry recognizes that “[t]he
nature of injustice is that we may not always see it in our own
times.” Obergefell, 576 U.S. at 664. Those who “wrote and ratified
the Bill of Rights and the Fourteenth Amendment did not presume
to know the extent of freedom in all of its dimensions.” Id. They
used broad language and “entrusted to future generations a charter
protecting the right of all persons to enjoy liberty as we learn its
meaning.” Id.; see Ullman, 367 U.S. at 542 (Harlan, J., dissenting)
(“That tradition is a living thing.”). And rights that “only became
analytically clear or won recognition after the adoption of the
Ninth” and Fourteenth Amendments are still “covered by” their
“letter and spirit.” AMAR, AMERICA’S UNWRITTEN CONSTITUTION,
supra, at 108.
At bottom, each of these pieces of evidence informs our as-
sessment of whether a plaintiff’s claimed right is “fundamental.”
Our focus on these objective indicators of our history and tradition
helps guard against “roaming at large into the constitutional field”
while also ensuring that we do not wholesale forfeit the fundamen-
tal rights our Founders charged the judiciary with securing. Gris-
wold, 381 U.S. at 502 (Harlan, J., concurring).
B. Four similarities among modern fundamental-rights doctrine,
our founding principles, and historical practice show that mod-
ern substantive-due-process doctrine imposes limitations on
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48 ROSENBAUM, J., Concurring 23-10385

government that Americans voted for when they ratified the

Constitution and the Fourteenth Amendment.
In four ways, our fundamental-rights doctrine channels the
Founders’ intentions, and the people’s understandings, when they
declared “that the enumeration of certain rights in the Constitu-
tion does not deny or disparage those rights retained by the peo-
ple.” U.S. CONST. amend IX.
First, our general understanding of what makes a right fun-
damental is essentially the same as it was at the Founding. In other
words, our requirement that a fundamental right is “deeply rooted
in this Nation’s history and tradition” and “implicit in the concept
of ordered liberty” does not materially differ from the frameworks
we see in early caselaw. Whether those rights are described as “vital
principles in our free Republican governments,” Calder, 3 U.S. at
388 (opinion of Chase, J.), “privileges and immunities which . . .
belong, of right, to the citizens of all free governments,” Corfield, 6
F. Cas. at 551, or “[i]mplied reservations . . . , without which the so-
cial compact could not exist,” Loan Ass’n, 87 U.S. at 663, the opin-
ions all invoke the same concept: The people retained a class of
rights when we established our government, so “the power to vio-
late and disregard them” does not “lurk[] under any general grant
of legislative authority” or “general expressions of the will of the
people,” Wilkinson, 27 U.S. (2 Pet.) at 657.
Second, and relatedly, the justification for judicial enforce-
ment of those rights has endured from the Founding to today.
That is, the judiciary protects rights, at least under the Fourteenth
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23-10385 ROSENBAUM, J., Concurring 49

Amendment, because they are “in their nature, fundamental,” Cor-

field, 6 F. Cas. at 551, not just because we enumerated some of them
in the Constitution.
To be sure, enumeration is one source of authority. But the
Founders, especially the Federalists, understood that base limits on
government action inhered in the social contract, so enumeration
was merely declaratory of rights that already limited government.
And the drafters of the Fourteenth Amendment understood
the same thing when they noted that Sections One and Five of that
amendment “establish[ed] no new right” but merely provided a
means for the federal government “to protect and enforce those
which already belong to every citizen.” CONG. GLOBE, 39th Cong.
1st Sess. 1117 (1866) (statement of Rep. James Wilson); id. at 1836
(statement of Rep. William Lawrence) (“[T]his bill creates no new
right, confers no new privilege, but is declaratory of what is already
the constitutional rights of every citizen in every State . . . .”). It’s
that principle that underwrites our modern caselaw—we protect
rights under the Fourteenth Amendment, at least in part, because
they are “of such a nature that they are included in the conception
of due process of law.” McDonald, 561 U.S. at 759 (plurality opin-
ion) (quoting Twining, 211 U.S. at 99). In other words, the promise
of “due process of law” is not a promise of process for the sake of
process; it’s a promise of process for the sake of ensuring our fun-
damental rights have practical meaning.
Third, the legal methodology—that is, the relevant historical
evidence and precedent—we use to determine whether a right is
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50 ROSENBAUM, J., Concurring 23-10385

fundamental has remained consistent. As early cases said, funda-

mental rights were those that “have, at all times, been enjoyed by
the citizens of the several states which compose this Union.” Cor-
field, 6 F. Cas. at 551; see also Loan Ass’n, 87 U.S. at 663 (“Implied
reservations of individual rights . . . are respected by all govern-
ments entitled to the name.”). So our current inquiry into prevail-
ing legal practices at the common law, across state governments,
and even other countries, matches our earliest instincts about what
made a right “fundamental.”
And that similarity is more than a coincidence. At both the
time of the Founding and ratification of the Fourteenth Amend-
ment, general law played a key role in the American legal system.
Its content “form[ed] the substratum of our laws.” United States v.
Burr, 25 F. Cas. 55, 77 (C.C.D. Va. 1807) (No. 14,693) (Marshall, Cir-
cuit Justice). And in many routine cases, it provided the “princi-
ple”—or the rule of decision—that “would obtain” in the “ab-
sence” of any applicable positive state or federal law. United States
v. Chambers, 291 U.S. 217, 226 (1934). So a reference to rights “re-
spected by all governments entitled to the name,” for instance, was
a reference to rights as the general law defines them. See Baude,
Campbell & Sachs, supra, at 1199 (“Lawyers and judges evinced the
general-law character of these fundamental rights not only by us-
ing terms like these but also by explicitly describing the rights as
shared among multiple jurisdictions.”).
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And when judges in our pre-Erie 16 days had to rely on the

general law to supply a rule of decision, they “found” the general
law in much the same way we now determine whether a right is
fundamental. They reviewed colonial, Founding, and Antebellum-
Era treatises and scholarly works; a study of the English common
law; and a catalog of relevant state-court decisions, among many
other probative sources. See, e.g., Swift v. Tyson, 41 U.S. (16 Pet.) 1,
19–22 (1842); Nichols v. Fearson, 32 U.S. (7 Pet.) 103, 109–12 (1833);
see also St. George Tucker, Appendix to 1 WILLIAM BLACKSTONE,
COMMENTARIES 430 (S. Tucker ed. & comm. 1803). And that review
included an assessment of how law has developed over time. See
Baude, Campbell & Sachs, supra, at 1248 (explaining the general
law “is shaped by legally recognized custom and practice; its con-
tours can change as those practices change”); Danielle D’Onfro &

16 In Erie Railroad Company v. Tompkins, 304 U.S. 64, 71 (1938), the Supreme
Court overturned Swift v. Tyson. Swift held that federal courts sitting in diver-
sity may, in the absence of a pertinent state statute, apply the general law to
commercial disputes. In other words, federal courts in diversity could use
“general reasoning and legal analogies” to determine “the just rule furnished
by the principles of commercial law to govern the case,” 41 U.S. (16 Pet.) at
19, even if state courts applied a different rule of decision. Erie, by contrast,
required federal courts sitting in diversity to interpret all state substantive law
as the “highest court” of a state would. 304 U.S. at 78. And in doing so, Erie
“overruled a particular way of looking at law which dominated the judicial
process” from the Founding to the beginning of the twentieth century. Guar.
Tr. Co. of N.Y. v. York, 326 U.S. 99, 101 (1945). State-court decisions were no
longer “merely evidence” of the proper rule of decision that a federal court
should apply but were now “the controlling formulations” of the applicable
law itself. Id.
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52 ROSENBAUM, J., Concurring 23-10385

Daniel Epps, The Fourth Amendment and General Law, 132 YALE L.J.
910, 940 (2023) (“Jurists and lawyers in 1791 would not have under-
stood the common law as perfectly static.”); accord Obergefell, 576
U.S. at 644 (“When new insight reveals discord between the Con-
stitution’s central protections and a received legal stricture, a claim
to liberty must be addressed.”).
So the difference between substantive due process and the
vision of fundamental rights that the Founders and drafters of the
Fourteenth Amendment held is not one of substance but one of
vehicle—the same first principles continue to guide us even though
we may now think about and describe the law differently. See gen-
erally Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165
(1993).
Fourth, and finally, the current tiers of scrutiny adequately
approximate the Founders’ expectations about the bounds of the
states’ police powers. The core premise of the social contract is
that “[w]hen one becomes a member of society, he necessarily
parts with some rights or privileges which, as an individual not af-
fected by his relations to others, he might retain.” Munn, 94 U.S. at
124 (emphasis added). And social-contract theory recognizes that
individuals cede those rights “for the public good.” Id. at 125.
These two precepts inform the boundaries of government author-
ity. But they also raise two questions: (1) Which rights did the peo-
ple retain when they “entered” the social contract, in that the state
generally may not abridge them, and (2) how much may we sec-
ond-guess whether the government acted “for the public good?”
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23-10385 ROSENBAUM, J., Concurring 53

I think our modern framework satisfactorily responds to

these questions. As to the first question—the rights the people re-
tained—we’ve just answered it: rights that are “deeply rooted in this
Nation’s history and tradition” and “implicit in the concept of or-
dered liberty.” Our review of past and present legal norms will ul-
timately reveal whether the claimed right is regularly abridged, or
whether the claimed right is so routinely exercised and protected
that we can conclude the people “retained” it when they entered
the social contract. In that case, presumptively, the government
could not infringe on that legally determinate right.
Strict scrutiny’s allowance of some regulation of fundamen-
tal rights operates as a limited exception to the people’s retention
of those rights. But it is one that still finds its roots in the social
contract’s logic. Requiring the government to show that its action
is “narrowly tailored to serve a compelling state interest,” Reno, 507
U.S. at 302, is a way of forcing the government to show that its ac-
tion in fact serves the “public good.”
Some might view questioning whether a certain law is in the
“public good” as policymaking. But the judiciary’s acceptance of a
government’s asserted public interest often derives from objective
sources, such as the historical evidence that we use to define the
right in the first place. See United States v. Rahimi, 602 U.S. 680, 732
& n.7 (2024) (Kavanaugh, J., concurring) (“The Court has em-
ployed balancing only in discrete areas of constitutional law—and
even in those cases, history still tends to play a far larger role than
overt judicial policymaking.”). So strict scrutiny is really just a
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54 ROSENBAUM, J., Concurring 23-10385

mechanism that helps courts and litigants define the scope a

claimed right and delimit its outer boundaries.
In contrast, when a claimed right is not deeply rooted or im-
plicit in the concept of ordered liberty, the judiciary historically has
deferred to the legislature’s determination that a particular act ad-
vances the public good. Id. at 253. “[T]he question” whether we
sustain government action in the face a claim that such action
abridges fundamental rights “is one of power, not of expediency.”
Munn, 94 U.S. at 132.
When the state has the power to act—because the people
retained no right forbidding government intrusion—“the legisla-
ture is the exclusive judge” of whether the action benefits the pub-
lic good. Id. at 133; see, e.g., Crowley v. Christensen, 137 U.S. 86, 91
(1890) (deferring to the legislature because there “is no inherent
right in a citizen to thus sell intoxicating liquors by retail”; it “is not
a privilege of a citizen of the state or of a citizen of the United
States”). We make no judgment on whether an act is expedient.
Rather, we step in only “[i]f no state of circumstances could exist
to justify such a statute,” Munn, 94 U.S. at 132—that is, only if the
government lacks the power to enact such a law. In that limited
case, we can enforce constitutional limitations on purely “arbitrary
exertions of power under the forms of legislation.” Hurtado, 110
U.S. at 536.
So no functional distinction exists between today’s rational-
basis formulation and our country’s historical deference to legisla-
tures’ determinations of what advances the public good. Indeed,
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our current caselaw practically rips the words out of Reconstruc-

tion-era opinions. Compare Munn, 94 U.S. at 132 (“no state of cir-
cumstances could exist to justify such a statute”), with Beach
Commcn’s, 508 U.S. at 313 (“reasonably conceivable state of facts
that could provide a rational basis”).
Even today’s focus on impermissible animus finds its roots
in long-held restrictions on legislation enacted under pretexts or for
partial or special purposes. Compare McCulloch, 17 U.S. (4 Wheat.)
at 423 (pretexts), Austin v. Murray, 33 Mass. 121, 126 (1834) (“not a
police regulation, made in good faith”), Hurtado, 110 U.S. at 536
(“special, partial, and arbitrary exertions of power”), with Moreno,
413 U.S. at 534 (“bare . . . desire to harm a politically unpopular
group”); City of Cleburne, 473 U.S. at 446–47 (same); Romer, 517 U.S.
at 635 (purpose of amendment “to make them unequal to every-
one else”).
In sum, modern fundamental-rights doctrine’s ties to our
historical roots refute calls to abandon modern doctrine because it
is allegedly “unmoored from history,” “ahistorical,” and “manipu-
lable,” Newsom Op. at 2, 18, 3. If anything, the people’s under-
standing of unenumerated rights at both the Founding and the rat-
ification of the Fourteenth Amendment warrants modern funda-
mental-rights doctrine’s continued use.
III. Substantive due process offers a workable method for se-
curing Americans’ fundamental rights.
With the matters of history and text resolved, we can ad-
dress the so-called “practical” and “pedigree” problems that
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56 ROSENBAUM, J., Concurring 23-10385

substantive due process purportedly presents. Hillcrest Prop., LLP v.

Pasco County, 915 F.3d 1292, 1305–06 (11th Cir. 2019) (Newsom, J.,
concurring). Of course, given the historical directives to enforce
unenumerated rights, these criticisms are ultimately unavailing.
But it is worth highlighting that these criticisms still do not provide
a good reason to abandon substantive-due-process doctrine.
A. Substantive due process employs routine tools of constitutional
decisionmaking to declare what the law is, not what judges
think the law should be.
The practical problems Judge Newsom identifies seem to
flow from what he sees as “malleable” standards inherent in our
substantive-due-process doctrine. Newsom Op. at 3. He views our
guideposts of history and tradition and our concept of ordered lib-
erty as “vague shibboleths . . . untethered from the governing text”
that “invite manipulable, policy-driven cherry-picking.” Sierra v.
City of Hallandale Beach, 996 F.3d 1110, 1129 (11th Cir. 2021) (New-
som, J., concurring). And if we applied only those vague standards,
perhaps we would, as Alexander Hamilton put it, “be disposed to
exercise will instead of judgment.” THE FEDERALIST NO. 78 (Alex-
ander Hamilton). But as we’ve thoroughly discussed, our broad
guideposts are not the end of the legal legwork our substantive-
due-process doctrine requires. Applied faithfully and accurately,
substantive due process looks like any other routine form of con-
stitutional interpretation.
We, of course, start any constitutional analysis with the rel-
evant text. Usually, the text readily indicates whether the plaintiff’s
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claim is plausible. For instance, both the Due Process Clause and
the Privileges or Immunities Clause invite claims that a state has
impermissibly infringed a person’s individual rights. See U.S.
CONST. amend. XIV, § 1 (“No State shall make or enforce any law
which shall abridge . . . ; nor shall any State deprive . . . .”). But that
textual invitation rarely resolves the question presented.
Many provisions include “general term[s], applicable to
many objects.” Gibbons, 22 U.S. (9 Wheat) at 189. Knowing that, at
the time of Reconstruction, “the terms ‘privileges’ and ‘immuni-
ties’ . . . were used interchangeably with the words ‘rights,’ ‘liber-
ties,’ and ‘freedoms’” ultimately “reveal[s] little about” the “sub-
stance” of the rights Americans intended the Fourteenth Amend-
ment to protect. McDonald, 561 U.S. at 813–14 (Thomas, J., con-
curring in part and concurring in the judgment). So we must use
additional interpretive tools to discern their character and scope.
See, e.g., McCulloch, 17 U.S. (4 Wheat.) at 407 (determining the scope
of Congress’s powers through the Constitution’s structure); Hur-
tado, 110 U.S. at 530–31, 535–38 (relying on history and other com-
mon-law principles to inform the meaning of the Due Process
Clause).
For instance, to return to Corfield, when Justice Washington
interpreted the scope of the Privileges and Immunities Clause, he
appealed to the Constitution’s structure and its history. He ex-
plained that it secured those “privileges and immunities which are,
in their nature, fundamental; which belong, of right, to the citizens
of all free governments; and which have, at all times, been enjoyed
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58 ROSENBAUM, J., Concurring 23-10385

by the citizens of the several states”—as opposed to any privileges

the states create by local law—because deprivations of those our
fundamental rights would undermine our Founder’s intent to se-
cure a single Union. 6 F. Cas. at 551–52. And in turn, he could
conclude that a claimed right to oyster harvesting, a resource pecu-
liar to New Jersey, did not fall within the scope of the Privileges and
Immunities Clause. Id.
Similarly, in the Slaughter-House Cases, Justice Miller, made
clear that he could not interpret the Privileges or Immunities
Clause “without a reference to [its] history,” 83 U.S. at 67–68, 71
(discussing the eradication of slavery), or its structure, id. at 75–78
(discussing the federal government’s limited role in “ordinary and
usual” governance). And through those tools, he discerned (per-
haps incorrectly) that the provision ought to secure only rights
which owe “their existence to the Federal government, its National
character, its Constitution, or its laws,” id. at 79. As a result, it be-
came apparent that the Fourteenth Amendment did not secure the
Louisiana butchers’ right to practice their trade free from the in-
terference of a state-granted monopoly. Id. at 80–81.
In both cases, our usual interpretive tools allowed us to re-
fine an applicable principle from the general constitutional provi-
sion at issue, and that principle resolved the dispute.
In comparison, more specific provisions, such as those in the
first eight amendments, may take us one step closer to resolving
the constitutional question. We know the claimed right exists at
least in some form. But, again, that small step rarely resolves the
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legal question the facts present, and we must again bring out our
jurisprudential toolkit.
Take the Sixth Amendment’s Confrontation Clause. See U.S.
CONST. amend. VI (“In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him.”). When the Court had to decide whether certain out-of-
court statements (hearsay) could be admitted into evidence against
a criminal defendant, the Court first announced that the “Consti-
tution’s text does not alone resolve this case.” Crawford v. Washing-
ton, 541 U.S. 36, 43 (2004). That was so, the Court explained, be-
cause we “could plausibly read ‘witnesses against’ a defendant to
mean those who actually testify at trial, those whose statements are
offered at trial, or something else in between.” Id. (internal cita-
tions omitted).
So the Court reviewed many of the sources we highlighted
in our discussion of substantive-due-process doctrine. Precedents
from the English common law (the case of Sir Walter Raleigh, in
particular), the colonies’ experiences with British rule, and Ante-
bellum state-court practice supported the Court’s conclusion that
the Confrontation Clause prohibits the introduction of out-of-
court testimonial statements. See id. at 43–50.
The Second Amendment provides another example. See U.S.
CONST. amend. II (“A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.”). Though textually based, the full
scope of the “right of the people to keep and bear Arms” was not
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60 ROSENBAUM, J., Concurring 23-10385

immediately clear; two sides of a dispute easily “set out very differ-
ent interpretations of the Amendment.” Heller, 554 U.S. at 577. But
after a lengthy review of the English common law, our colonial his-
tory, the nation’s ratification debates, and post-ratification practice
from the Antebellum period to modern times, the Court con-
firmed “that the Second Amendment conferred an individual right
to keep and bear arms.” See id. at 577–95. Again, text alone did not
clearly delineate the content of the asserted right, and the Court
exercised judgment, in light of the historical record, to ascertain
the text’s “idiomatic meaning.” Id. at 577.
Still, analysis rarely ends after we articulate the content of
the Constitution’s text. Rather, our reliance on the full breadth of
our legal resources only deepens when we’re called to examine a
claimed right’s scope in the face of state action that likely intrudes
on that claimed right. Concrete questions of whether the state
may “prohibit[] an individual subject to a domestic violence re-
straining order from possessing a firearm,” Rahimi, 602 U.S. at 684,
or prevent a natural father from establishing paternity over his pu-
tative child born to a married couple, Michael H. v. Gerald D., 491
U.S. 110, 113 (1989) (plurality opinion), are not neatly answered by
precedent confirming that the Second Amendment protects an “in-
dividual right to keep and bear arms,” Heller, 554 U.S. at 595, or that
Due Process Clause secures “the interest of parents in the care, cus-
tody, and control of their children,” respectively, Troxel v. Granville,
530 U.S. 57, 65 (2000) (plurality opinion). In both instances, we
must determine whether our Nation’s history and tradition per-
mits such regulation. See Rahimi, 602 U.S. at 692; Kerry v. Din, 576
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U.S. 86, 95 (2015) (plurality opinion) (explaining fundamental rights

“must give way when there is a tradition denying the specific appli-
cation of that general” right).
Sometimes, the historical analogues “are relatively simple to
draw.” Bruen, 5967 U.S. at 27. In Michael H., California just adopted
“the presumption of legitimacy” that “was a fundamental principle
of the common law” and traditionally “protected the marital fam-
ily . . . against the sort of claims Michael” asserted. 491 U.S. at 124.
But other cases “may require a more nuanced approach,” Bruen,
5967 U.S. at 27, often calling on us to determine whether a relevant
tradition is sufficiently “enduring,” “representative,” and “compa-
rable” to establish an exception to an enumerated right, id. at 69,
30, 27, or to support the existence of an unenumerated one, see
Glucksburg, 521 U.S. at 721.
Those are difficult questions. How do we know, for in-
stance, whether enough states adopted a particular policy to sug-
gest that policy is a “representative” tradition? Or, how do we en-
sure that we are pulling the controlling principle from the ade-
quately comparable analogous historical regulation at “just the
right level of generality?” Rahimi, 602 U.S. at 740 (Barrett, J., con-
curring). These inquires do offer clear guideposts, and “reasonable
minds sometimes disagree about how” to resolve them. Id.
But that does not make our exercise of discretion in answer-
ing those questions any less of “a commonplace task for any lawyer
or judge.” Bruen, 597 U.S. at 28. For instance, courts often deter-
mine whether a historical tradition is sufficiently representative
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62 ROSENBAUM, J., Concurring 23-10385

through historical facts, comparisons to those historical facts, and,

in some cases, reasoning inward from clear outliers that provide
ready first-cut answers. Compare Bruen, 597 U.S. at 67 (rejecting as
relevant analogues regulations governing only “about two-thirds of
1% of the population”), and Timbs, 586 U.S. at 152 (concluding a
representative tradition existed where 70% of the U.S. population
forbade excessive fines), with Antonyuk v. James, 120 F.4th 941, 1022
(2d Cir. 2024) (concluding a representative tradition existed where
“15.3 percent of the Nation’s population,” comprising “37.7% of
the urban population living” in the United States, prohibited fire-
arms in public parks); see also Dobbs, 597 U.S. at 239.
A rule to cut through each interpretive nuance may not exist
in this area of law. But “many constitutional standards involve un-
doubted gray areas, and it normally might be fair to venture the
assumption that case-by-case development will lead to a workable
standard.” Rahimi, 602 U.S. at 746 ( Jackson, J., concurring) (quot-
ing Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 540
(1985)) (cleaned up).
The point is that the legal reasoning in most constitutional
cases, even when we apply an enumerated right, requires not just
“exercise of judicial discretion,” THE FEDERALIST NO. 78 (Alexander
Hamilton), but an exercise of the same kind of judicial discretion
that our unenumerated-rights jurisprudence calls for. As this dis-
cussion shows, fundamental-rights cases—whether based on broad
provisions like the Due Process Clause, or on enumerated rights
like those in the Second and Sixth Amendments—require careful
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examinations of the Constitution’s structure, its history, and our

precedents to fashion a rule of decision. And the particularly tough
questions that fundamental-rights cases pose exist in disputes in-
volving rights of both species, enumerated and unenumerated.
So what, if anything, gives spark to Judge Newsom’s assess-
ment that “[i]f ever there were a doctrine that gave a veneer of
truth to the vicious lie that judges just decide cases in accordance
with their priors, it’s substantive due process?” Newsom Op. at 3.
Perhaps that many use the doctrine as a mechanism to bring polit-
ically salient issues before the courts. See, e.g., Sosa, 57 F.4th at 1305
(Newsom, J., concurring) (explaining substantive due process has
“often been invoked as a failsafe doctrine of sorts . . . to plug some
perceived gap in the written Constitution”). And when we resolve
any politically salient issue—whether involving enumerated rights
or the scope of Congress’s powers—charges of policymaking will
ensue. See David E. Pozen & Adam M. Samaha, Anti-Modalities, 119
MICH. L. REV. 729, 746 (2021) (“Participants in constitutional de-
bates routinely distinguish legitimate constitutional concerns from
illegitimate considerations of policy when attacking their oppo-
nents or defending their own, ostensibly policy-free positions.”).
But that characterization cannot and should not give us reason to
abandon the doctrine.
It’s axiomatic our jurisdiction extends to some so-called “po-
litical cases” and that the “courts cannot reject . . . a bona fide con-
troversy as to whether some action denominated ‘political’ exceeds
constitutional authority.” Baker v. Carr, 369 U.S. 186, 217 (1962).
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64 ROSENBAUM, J., Concurring 23-10385

That is especially in the case for rights many will claim the Four-
teenth Amendment protects. Our forbearers adopted that amend-
ment with the express intent to enable Americans “to hold [the
states] to answer before the bar of national courts.” CONG. GLOBE,
39th Cong., 1st Sess. 1090 (1866) (statement of Rep. John Bingham).
Our duty is “to be an intermediate body between the people
and the legislature” by enforcing the will of the people as “declared
in the Constitution.” THE FEDERALIST NO. 78 (Alexander Hamil-
ton). And we cannot abdicate it solely because some may misun-
derstand our “exercise of judicial discretion.” Id. As Hamilton put
it, such an argument is “of no weight,” for if it were correct, it
“would prove” only that “there ought to be no judges distinct
from” the legislature. Id. We’d be left with no “bulwark . . . against
legislative encroachments” on the rights of individuals. Id.
Yet Hamilton’s reflections show that these are not new con-
cerns. And as our examples illustrate, the “exercise of judicial dis-
cretion” is inevitable in any constitutional case, if not every one
that comes before us. But our reasoned opinions are a response to
that. They make us show our work and explain why the Constitu-
tion and our interpretive tools require the answer we give. And
through that methodology, we have long been able to show the
public that we’re exercising our “judgment” in “declar[ing] the
sense of the law,” as opposed to exerting our “will” upon them. Id.
We employ well-refined jurisprudential tools, including tex-
tual and structural analyses, reviews of pertinent precedents, and
surveys of our nation’s history and tradition, to avoid policymaking
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and to rebut any charges of it. See Pozen & Samaha, supra, at 736–
38, 746–50, 793–94; id. at 793 (“[W]henever the modalities are seen
to establish a relatively determinate proposition of law, that propo-
sition is eligible to stay in the constitutional box.”). So Judge New-
som’s “practical” criticisms are no stronger just because we secure
unenumerated rights through a general constitutional provision,
like the Due Process Clause (or for that matter, the Privileges or
Immunities Clause). They’re an innate feature of judicial review—
and one the judiciary regularly handles.
B. Dred Scott and Lochner do not require us to abandon our
fundamental-rights jurisprudence.
Judge Newsom’s invocation of substantive due process’s
boogiemen, Dred Scott and Lochner, also flounders under scrutiny.
Dred Scott has little relation to our fundamental-rights jurispru-
dence. In fact, historical evidence suggests it played little to no role
in developing today’s substantive-due-process doctrine. And Loch-
ner is a stand-in for arguments we already addressed—that, in some
cases, judges may get it wrong because they wrongly rely on their
own policy preferences instead of our legal and historical guide-
posts. But that, of course, can happen no matter the legal frame-
work, even under the alternative privileges-or-immunities doctrine
Judge Newsom proposes. His own proposals are not immune from
his own critiques. So although Dred Scott and Lochner provide im-
portant reminders of past mistakes, they do not suggest that we
ought to abandon American’s fundamental rights. Rather, they
serve as warnings for us to faithfully apply the law and not allow
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66 ROSENBAUM, J., Concurring 23-10385

personal policy preferences to sneak into our analyses—whether

we are applying substantive-due-process doctrine or any other legal
framework under the Constitution.
1. Dred Scott has little relevance for our fundamental-rights
jurisprudence.
First, there’s the claim that “substantive-due-process doc-
trine traces its roots” to Dred Scott. Hillcrest, 915 F.3d at 1305 (New-
som, J., concurring). Not so.
That repugnant decision is not the root of our fundamental-
rights jurisprudence—or even of substantive due process. And it’s
simply incorrect to suggest that the Supreme Court conjured up
substantive due process (or more generally, fundamental-rights ju-
risprudence) to constitutionalize slavery. In fact, by the time the
Supreme Court decided Dred Scott, substantive due process was al-
ready well established. Ryan C. Williams, The One and Only Sub-
stantive Due Process Clause, 120 YALE L.J. 408, 467, 469 (2010). 17

17 The Constitution’s Due Process Clauses trace their origin to a 1354 statute,
which improved upon the “law of the land” clause in the Magna Carta. See,
e.g., 28 Edw. 3 c. 3 (1354) (Eng.); 42 Edw. 3 c. 3 (1368) (Eng.); Magna Carta
1225, 9 Hen. 3 c. 29 (Eng.). The “law of the land” clause prohibited England
from punishing a person “except by the lawful judgment of his peers and by
the law of the land.” Magna Carta 1225, 9 Hen. 3 c. 29 (Eng.). Sir Edward
Coke, a prominent English jurist and Chief Justice of the Court of the King’s
Bench, linked the 1354 clause and the “law of the land” clause in his commen-
taries. Randy E. Barnett & Evan D. Bernick, No Arbitrary Power: An Originalist
Theory of the Due Process of Law, 60 WM. & MARY L. REV. 1599, 1607 (2019).
Throughout English common law, the “law of the land” provision and due-
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Not only that, but the travesty of Dred Scott does not come
from its reliance on substantive due process. True, Dred Scott found

process statutes stood as barricades against abuses of the royal prerogative.

Barnett & Bernick, supra, at 1610–12; Hurtado, 110 U.S. at 531. Some even
viewed them as having operated as limitations against Parliament itself. See
Gedicks, supra, at 601–11 (discussing Bonham’s Case, decided by Lord Coke, as
an example of fundamental law limiting Parliament’s legislative authority);
James W. Ely, Jr., The Oxymoron Reconsidered: Myth and Reality in the Origins of
Substantive Due Process, 16 CONST. COMMENT. 315, 321 (1999) (“Coke implied
that the ‘law of the land’ constituted a substantive limitation on the power of
government.”). That view of Coke’s jurisprudence never took hold in Eng-
land; “the omnipotence of parliament over the common law was absolute,
even against common right and reason.” Hurtado, 110 U.S. at 531 (recognizing
Bonham’s Case as an exception to parliamentary supremacy). But Americans
did not adopt England’s system of government. Rather, throughout America,
written constitutions helped limit governments’ powers, and widespread ac-
ceptance of the separation of powers disentangled legislative and judicial au-
thorities. Id. at 531.
So unlike in England, legislative acts in the United States were not equivalent
to constitutional pronouncements. Instead, “law of the land” and due-process
provisions imported from England operated as “limitations upon all the pow-
ers of government, legislative as well as executive and judicial.” Id. at 532.
And the Supreme Court observed in 1884 that what were once “[a]pplied in
England only as guards against executive usurpation and tyranny” became in
America “bulwarks also against arbitrary legislation.” Id. As a result, many
thought the Due Process Clauses guaranteed not just “particular forms of pro-
cedure, but the very substance of individual rights to life, liberty, and property.” Id.
(emphasis added). In fact, “[b]y the time of the Fourteenth Amendment’s rat-
ification in 1868,” substantive due process was well established: “courts in at
least twenty of the thirty-seven then-existing states had endorsed some version
of substantive due process in connection with interpreting either due process,
law-of-the-land, or similar provisions in their own constitutions or the Fifth
Amendment Due Process Clause.” Williams, supra, at 469.
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68 ROSENBAUM, J., Concurring 23-10385

property ownership to be a fundamental right. But that isn’t why

Dred Scott is so abhorrent. Rather, Dred Scott’s obliteration of the
law was its holding that people are property.
And that was not a conclusion the Court reached through
substantive due process. So to argue that Dred Scott’s existence un-
dermines substantive due process as a doctrine (or more broadly,
fundamental-rights jurisprudence) is to miss the reason Dred Scott
was so repugnant and erroneous—that contrary to the concept on
which Dred Scott is based, people are not property but individuals
entitled to equal dignity in both life and the law. See Williams, su-
pra, at 467 (“Although Taney’s Dred Scott opinion was unquestiona-
bly controversial at the time it was issued, there is virtually no evi-
dence to suggest that such controversy stemmed from Taney’s use
of the Due Process Clause . . . .”). 18
Indeed, the drafters of the Fourteenth Amendment specifi-
cally sought to address that central and wrong premise of the Dred
Scott decision. After all, Section One of that amendment both con-
stitutionalizes birthright citizenship and guarantees those citizens’
fundamental rights. U.S. CONST. amend. XIV, § 1. So it’s especially
odd to deploy Dred Scott as a reason for undermining the protec-
tions that very Section of the Fourteenth Amendment provides.

18Dred Scott was also erroneous on substantive due process’s own terms. The
United States had an established history of banning slavery. Congress did so
in the Northwest Ordinance, and states throughout the Union enacted and
upheld laws similar to the Missouri Compromise. Dred Scott, 60 U.S. at 620,
626–28 (Curtis, J., dissenting).
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Rather than a justification for jettisoning fundamental-rights

jurisprudence, Dred Scott is better understood as a wretched symp-
tom of the deep racial divisions and discrimination that plagued the
United States in the lead-up to the Civil War and that continued to
dominate Supreme Court jurisprudence for the next near century,
regardless of the constitutional provision at issue. See, e.g., Civil
Rights Cases, 109 U.S. 3 (1883) (Thirteenth and Fourteenth Amend-
ments’ enforcement provisions), abrogated in part by Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241 (1964); Plessy v. Ferguson, 163
U.S. 537 (1896) (Equal Protection Clause), overruled by Brown v. Bd.
of Educ., 347 U.S. 483 (1954).
And if we lose sight of that fact, we miss the vestiges of
those divisions that still marginalize some Americans today. See Al-
len v. Milligan, 599 U.S. 1, 22 (2023) (upholding the district court’s
findings “that political campaigns in Alabama had been ‘character-
ized by overt or subtle racial appeals’” and “that ‘Alabama’s exten-
sive history of repugnant racial and voting-related discrimination is
undeniable and well documented’”). In short, Dred Scott and its er-
rors tell us nothing about the propriety of today’s substantive-due-
process jurisprudence (or about fundamental-rights jurisprudence
more broadly).
2. Lochner does not offer a compelling reason to depart
from our current fundamental-rights jurisprudence.
Critics also point to Lochner v. New York, 198 U.S. 45 (1905),
as a reason for casting aside substantive due process. Lochner was
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70 ROSENBAUM, J., Concurring 23-10385

wrong. But it doesn’t justify abandoning fundamental-rights juris-

prudence.
In Lochner, the Court invalidated wage-and-hour legislation
because it concluded the legislation violated the “general right to
make a contract.” Id. at 53.
But Lochner did not apply substantive due process as we con-
ceptualize that doctrine today. Rather, it strained at length to char-
acterize the wage-and-hour law as lacking any rational relationship
to the state’s police powers; it called the law a mere pretext for class
legislation. See id. at 54–64. In other words, Lochner’s analysis de-
parted from the many opinions emphasizing deference to the leg-
islature in the regulation of contract and property rights. Victoria
Nourse, A Tale of Two Lochners: The Untold History of Substantive
Due Process and the Idea of Fundamental Rights, 97 Cal. L. Rev. 751,
767, 798 (2009); see, e.g., Saunders, 25 U.S. at 320 (opinion of Trimble,
J.) (explaining citizens cede many contract and property rights “to
be regulated, modified, and, sometimes, absolutely restrained” by
the government for the public good).
So to reject Lochner is not to reject judicial enforcement of
fundamental rights. As Justice Holmes pointed out in dissent, his
disagreement with the majority did not preclude stringent review
of statutes that “would infringe fundamental principles as they
have been understood by the traditions of our people and our law.”
Lochner, 198 U.S. at 76 (Holmes, J., dissenting).
Plus, Lochner emphasized property rights, rather than the
“privacy” rights on which our modern doctrine focuses. See AMAR,
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AMERICA’S UNWRITTEN CONSTITUTION, supra, at 126. And that dif-

ference is significant. Property, by its nature in our system, is not
equally distributed among every citizen. So as a practical matter,
citizens don’t equally share the same rights when it comes to prop-
erty. In contrast, every citizen—land-owning or not—enjoys the
same privacy rights. And that equality in privacy rights echoes the
Fourteenth Amendment’s central principle of equality. For that
reason, modern doctrine is much more in tune with the import of
the Fourteenth Amendment than was Lochner.
And relatedly, modern substantive-due-process doctrine has
much more in common with the democracy-reinforcing theory of
judicial review than its critics have given it credit for. See Douglas
NeJaime & Reva Siegal, Answering the Lochner Objection: Substantive
Due Process and the Role of Courts in a Democracy, 96 N.Y.U. L. REV.
1902, 1908–09 (2021) (explaining judicial intervention in substan-
tive-due-process cases “can be understood as democracy-promot-
ing”).
As a matter of methodology, modern doctrine allows us to
intervene only when evidence from the democratic process plainly
shows the claimed right is fundamental. See Nourse, supra, at 798
(explaining substantive-due-process cases are an example of “‘con-
vergence,’ where majorities are ready to recognize the rights of mi-
norities”). And as a matter of substance, “unlike economic liber-
ties, personal liberties,” such as the “freedom to marry” or to direct
one’s children’s upbringing, are often “vulnerable in the political
process.” JAMES E. FLEMING, CONSTRUCTING BASIC LIBERTIES: A
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72 ROSENBAUM, J., Concurring 23-10385

DEFENSE OF SUBSTANTIVE DUE PROCESS 141 (Univ. Chi. Press 2022);

NeJaime & Siegal, supra, at 1959 (“[Modern cases] differ from Loch-
ner in the deeper sense that the claimants in the cases faced condi-
tions of stigma, denigration, and inequality that impeded their
democratic participation.”). So both formally and functionally, rev-
erence for and concerns about the democratic process guide mod-
ern substantive-due-process jurisprudence.
Each of these distinctions from Lochner helps constrain judi-
cial discretion in substantive-due-process analysis. But as we’ve al-
ready discussed, the remaining judicial discretion is not an issue
unique to substantive due process. Nearly every case with political
relevance results in a charge—usually unfounded—that political or
moral, rather than legal, reasoning motivates judges’ decisions. See
Pozen & Samaha, Anti-Modalities, supra, at 746. Still, we do not re-
spond to such charges by abandoning provisions of the Constitu-
tion.
Also, the view that we should leave fundamental rights that
the Constitution’s text does not explicitly address to the mercy of
the legislative process, see Newsom Op. at 1–3, abandons the Fram-
ers’ intent to ensure protection of those rights.
And it may itself reflect a judge’s view of what constitutes
good governance. That is, it may show that a particular judge finds
legislative or executive abridgment of fundamental rights to be less
offensive than judicial protection of them. In other words, that
view of fundamental-rights jurisprudence might itself betray a pol-
icy judgment. So the argument that unenumerated rights ought to
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always and only be secured in the legislative process suffers from

the same defect as the one it charges substantive due process with;
it may turn on a judge’s personal view that deference to the legis-
lature—even despite blatant violation of fundamental rights—is al-
ways “better” for our system of government.
Finally, concerns about another Lochner don’t end if we re-
ject substantive due process. If Judge Newsom’s privileges-or-im-
munities doctrine were to secure individual liberties, see, e.g., Sosa,
57 F.4th at 1307 (Newsom, J., concurring), it is difficult to see how
any of the Lochner-esque critiques about intruding on issues
properly reserved for the political sphere would lose their force.
Courts would still be in the business of reviewing legislative and
executive action, and critics would still cry Lochner when a court
ultimately does hold unconstitutional actions by democratically
elected officials.
Plus, even if we substantially limit the scope of our funda-
mental-rights jurisprudence, the troubles of judicial review, and its
counter-majoritarian difficulty, persist. “The more deferential fed-
eral courts are toward” the legislative and executive branches, even
when courts believe their coordinate branches’ actions to be
“wrong, misguided, or ill-motivated, the more deferential they
might also be toward” acts that the Founders and the drafters of
the Fourteenth Amendment intended the courts “to hold invalid.”
Baude, Campbell & Sachs, supra, at 1240. In other words, we just
replace any Lochner-esque errors of wrongfully intervening in the
democratic process with errors of wrongfully avoiding fulfilling
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our judicial duty of invalidating unconstitutional acts. As a result,

we erroneously enable the tyranny of the majority.
Examples of these cases are legion. For instance, in rejecting
a substantive-due-process claim, the Supreme Court allowed a Vir-
ginia institution to forcibly sterilize one of its citizens by “cutting
the[ir] Fallopian tubes.” Buck v. Bell, 274 U.S. 200, 207 (1927), abro-
gated by Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541
(1942). And in violation of the plainly articulated Equal Protection
Clause, the Court has wrongly deferred to many violative govern-
ment acts. See, e.g., Plessy, 163 U.S. at 544 (separate but equal); Ko-
rematsu v. United States, 323 U.S. 214, 223 (1944) (upholding intern-
ment camps based on national origin), overturned by Trump v. Ha-
waii, 585 U.S. 667 (2018). These errors, which we’ve since cor-
rected, were not reasons to give up on enforcing either clause.
In short, we can’t jettison substantive due process on the ar-
gument that we’ve erred in the past or that we may err again. At
the end of the day, history unambiguously shows that Americans
twice voted to ratify constitutional provisions that secure through
the courts unenumerated rights implicit in our system of ordered
liberty. Any practical problems with implementing the Ninth and
Fourteenth Amendments’ directives were part of the “interest bal-
ancing” “the people” conducted when they voted for them. Heller,
554 U.S. at 635. So it is our duty to continue to adjudicate funda-
mental-rights claims when they come within our jurisdiction.
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23-10385 ROSENBAUM, J., Concurring 75

* * *
To be sure, “[s]ubstantive due process [can be] hard.” New-
som Op. at 1 (quoting Eknes-Tucker, 114 F.4th at 1277 (Jordan, J.,
dissenting from denial of rehearing en banc)). But we don’t throw
out our precedents simply because their application can be “hard.”
And we certainly don’t do so when a constitutional right is at stake.
The people ratified our Constitution on the understanding that
courts would secure their fundamental rights—both express and
unenumerated—against government overreach. And when state
courts did not live up to those initial expectations, the people rati-
fied constitutional amendments to ensure federal courts would
pick up the slack. So it is our duty to enforce the Ninth and Four-
teenth Amendments and to secure fundamental rights, whether
they are enumerated or not.
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23-10385 Newsom, J., Concurring 1

NEWSOM, Circuit Judge, concurring:

This case proves the truth of a colleague’s recent observa-
tion that “[s]ubstantive due process is hard.” Eknes-Tucker v. Gover-
nor of Alabama, 114 F.4th 1241, 1277 (11th Cir. 2024) (Jordan, J., dis-
senting from denial of rehearing en banc). Hard, indeed. To be
clear, though, substantive due process is hard, in large part, because
it—and, with it, the doctrine that courts have cobbled together to
implement it—is incoherent. And it’s incoherent, in large part, be-
cause it’s made up. Enough is enough. Substantive due process isn’t
worth the candle. It’s doing more harm than good, and we—by
which I suppose I really mean my bosses at the Supreme Court—
should ditch it.
Let me say two things at the outset, by way of preface. First,
I think the defendants’ conduct here—in essence, hiding from the
Littlejohns the fact that their 13-year-old daughter had expressed a
desire to identify as a boy at school—was shameful. If I were a
legislator, I’d vote to change the policy that enabled the defendants’
efforts to keep the Littlejohns in the dark. But—and it’s a big but—
judges aren’t just politicians in robes, and they don’t (or certainly
shouldn’t) just vote their personal preferences. The question for
me, therefore, isn’t whether the defendants’ conduct was shame-
ful, but rather whether it was unconstitutional. And if I’ve said it
once, I’ve said it a thousand times: “Not everything that s[tinks]
violates the Constitution.” Hillcrest Prop., LLP v. Pasco Cnty., 915
F.3d 1292, 1303 (11th Cir. 2019) (Newsom, J., concurring in the
judgment).
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2 Newsom, J., Concurring 23-10385

Second, the target of my criticism today is the doctrine that

we have come (totally unironically) to call “substantive due pro-
cess.” In response to my critique, Judge Rosenbaum has penned a
thorough, thoughtful, 75-page defense of that doctrine—an ode, re-
ally. I’m tempted, of course, to dig in and try my hand at a point-
by-point rebuttal. But this case has been pending long enough, and
the parties are entitled to a resolution of their dispute. Accordingly,
I’ve decided to leave it alone entirely. I’ll let readers draw their
own conclusions about whether it’s worth clinging to either sub-
stantive-due-process doctrine generally or the comically vacuous
“shocks the conscience” test that courts have invented to imple-
ment it. My views will be clear enough.
With that brief preamble, let’s jump in.
I
I’m a longtime (and vocal) substantive-due-process skeptic.
In an effort to avoid making a pest of myself—at least on this
score—I won’t rehash for a fourth time my formal critique of the
doctrine. Because I’ve heard no convincing rebuttal, I’ll just take
as givens that substantive due process (1) makes a hash of constitu-
tional text, (2) is unmoored from history, and (3) is tainted by igno-
minious precedents like Dred Scott and Lochner. See, e.g., Sosa v.
Martin Cnty., 57 F.4th 1297, 1305 (11th Cir. 2023) (Newsom, J., con-
curring); Hillcrest, 915 F.3d at 1304–06; Kevin Christopher New-
som, Setting Incorporationism Straight: A Reinterpretation of the
Slaughter-House Cases, 109 Yale L.J. 643, 733–42 (2000).
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23-10385 Newsom, J., Concurring 3

To be clear, though, it’s worse than that. Precisely because

it’s so untethered from traditional interpretive sources, substantive
due process is infinitely malleable—and thus manipulable. There’s
a little something in it for pretty much everyone. More often than
not, it’s been progressives who have championed substantive due
process—and particularly the doctrine’s protection of unenumer-
ated “privacy”-based rights—in the face of conservative critiques.
Think Griswold, Roe, Casey, Lawrence, and Obergefell.
But sometimes, folks mysteriously switch sides. Some
staunch conservative skeptics of substantive due process’s “pri-
vacy” strain, for instance, warmly (if a little sheepishly) embrace
the “parental rights” strain exemplified by Meyer and Pierce—and,
in turn, the progressive privacy hawks express apprehension. Now
maybe there are some principled differences. It’s not my intention
today to adjudicate the extent to which, say, the common law pro-
vided more or less protection for personal or parental prerogatives.
But let’s be honest: If ever there were a doctrine that gave a veneer
of truth to the vicious lie that judges just decide cases in accordance
with their priors, it’s substantive due process.
II
But in fact, as this case lays bare, it’s even worse than that.
In what follows, I’ll explore yet another perversity of substantive-
due-process doctrine. Perhaps less salaciously than distorting con-
stitutional text or loosing judges to foist their policy preferences on
society, but no less importantly, substantive due process has
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4 Newsom, J., Concurring 23-10385

spawned all sorts of confusion concerning its day-to-day operation

in real cases that affect real people.
Today’s object lesson, on full display in this case: the distinc-
tion courts have drawn between substantive-due-process chal-
lenges to “legislative” and “executive” actions. With respect to
challenges to legislative action, everyone seems to agree that the
standard by which a court will conduct its review depends on
whether a so-called “fundamental right” is at stake. If the legisla-
tive action infringes a fundamental right, the court will apply “strict
scrutiny,” meaning that the action will fall unless it’s the “least re-
strictive means” of achieving some “compelling” governmental ob-
jective. See, e.g., Williams v. Morgan, 478 F.3d 1316, 1320 (11th Cir.
2007); see also, e.g., Ams. for Prosperity Found. v. Bonta, 594 U.S. 595,
607 (2021) (explaining that under strict scrutiny “the government
must adopt the least restrictive means of achieving a compelling
state interest” (quotation marks omitted)). By contrast, if no fun-
damental right is at stake, the court will review legislative action
only for “rational basis,” meaning that the law will survive so long
as it is rationally related to any “legitimate” government purpose.
See, e.g., Williams, 478 F.3d at 1320; Doe v. Moore, 410 F.3d 1337,
1345 (11th Cir. 2005); Maj. Op. at 12. Pretty clean. Made up, to be
sure, but clean.
When it comes to challenges to executive action, substantive-
due-process doctrine is anything but clean. And the messiness be-
gins with the so-called “shocks the conscience” test, which the Su-
preme Court seems (?) to have said is the standard against which
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23-10385 Newsom, J., Concurring 5

all executive actions should be measured—and which, accordingly,

our opinion today applies to decide the parents’ challenge to the
school board’s decision to exclude them from a planning meeting
involving their gender-dysphoric child. See Maj. Op. at 18–26.
We’ll circle back to this soon enough, but for the time being just
take on faith that the Supreme Court said in County of Sacramento v.
Lewis that “in a [substantive] due process challenge to executive ac-
tion, the threshold question is whether the behavior of the govern-
mental officer is so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience.” 523 U.S. 833, 848 n.8
(1998).
Where to begin with the shocks-the-conscience test? The
obvious place, I suppose, is with its hopeless obscurity, as to both
the “what” and the “who.” With respect to the “what,” I can’t im-
prove on Justice Scalia’s colorful quip, in which he referred to the
“ne plus ultra, the Napoleon Brandy, the Mahatma Gandhi, the Cel-
lophane of subjectivity, th’ ol’ ‘shocks-the-conscience’ test.” Id. at
861 (Scalia, J., concurring in the judgment) (footnote omitted). The
shocks-the-conscience standard simultaneously means nothing and
everything—it’s utterly and totally in the eye of the beholder. And
with respect to the “who,” who knows? Lewis refers to “the con-
temporary conscience,” id. at 848 n.8 (majority opinion), but
whose? The reasonable person’s? An unelected judge’s? The
Borg’s? Frankly, I have no idea.
But digging a little deeper—and now we’re really getting to
the nub of the parties’ dispute here—how exactly does the shocks-
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6 Newsom, J., Concurring 23-10385

the-conscience test fit into the substantive-due-process framework?

Does it apply, as the school board here contends, to all challenges
to executive actions, including those alleging infringements of fun-
damental rights? Or, as the parents insist, does it apply only to
those cases in what I’ll call the “residuum”—that is, those that deal
with more mine-run executive conduct? And if it does apply in fun-
damental-rights cases, such that a shocked conscience is a necessary
condition to invalidating the challenged executive action, is it also
a sufficient condition? Or must a plaintiff show something more?
To those foundational questions—What’s the standard, and when
does it apply?—the precedent provides no ready answers.
Let’s look first at our own cases, which are, to put it charita-
bly, dissonant. I’ll take just a few of them, in chronological order,
beginning with Dacosta v. Nwachukwa, 304 F.3d 1045 (11th Cir.
2002). There, we considered whether a college professor’s conduct
in slamming a glass door on a student stated a substantive-due-pro-
cess claim. Significantly for present purposes, we framed the in-
quiry in disjunctive terms, as follows:
Conduct by a government actor that would amount
to an intentional tort under state law would only rise
to the level of a substantive due process violation if it
[1] “shocks the conscience” or [2] interferes with
rights “implicit in the concept of ordered liberty”—in
other words, only if it affects individual rights guar-
anteed, explicitly or implicitly, by the Constitution it-
self.
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23-10385 Newsom, J., Concurring 7

Id. at 1048 (enumeration added). So, per Dacosta, a plaintiff raising

a substantive-due-process challenge to an executive official’s action
can prevail by showing that the conduct either shocked the con-
science or implicated a fundamental right.
About a decade later, though, we seemed to reverse course,
adopting an approach that required a substantive-due-process
plaintiff to establish that an executive official’s conduct both in-
fringed a fundamental right and shocked the conscience. In Maddox
v. Stephens, we acknowledged, at the outset, that a social worker’s
“safety plan” that placed a child in a grandmother’s care interfered
with a mother’s “constitutionally protected liberty interest in the
care, custody and management of [her] children.” 727 F.3d 1109,
1118–19 (11th Cir. 2013) (citation and quotation marks omitted).
But we went on to clarify that “not every wrong committed by a
state actor rises to the level of a constitutional tort sufficient to trig-
ger . . . substantive due process protection” and emphasized that
“plaintiffs face a high bar when attempting to establish a substan-
tive due process violation as conduct by a government actor will
rise to the level of a substantive due process violation only if the act
can be characterized as arbitrary or conscience shocking in a con-
stitutional sense.” Id. (citation and quotation marks omitted). The
upshot seems clear enough: A substantive-due-process plaintiff
challenging executive action can’t win, as Dacosta had indicated, by
showing either conscience-shocking behavior or infringement of a
fundamental right; rather, she must establish both.
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8 Newsom, J., Concurring 23-10385

And yet. Just a few years later, we reversed course again,

seemingly re-embracing a disjunctive, either-or framing. In Wald-
man v. Conway, which involved an inmate’s challenge to prison of-
ficials’ classification of him as a sex offender, we said, as an initial
matter, that “[t]he Fourteenth Amendment forbids the govern-
ment from infringing fundamental liberty interests at all, unless the
infringement is narrowly tailored to serve a compelling state inter-
est.” 871 F.3d 1283, 1292 (11th Cir. 2017). We held that a sex of-
fender’s right to refuse registration and publication of his infor-
mation wasn’t “deeply rooted in this Nation’s history and tradi-
tion” and, therefore, wasn’t fundamental. Id. (quoting Washington
v. Glucksberg, 521 U.S. 702, 721 (1997)). We went on, though—cit-
ing Lewis—to clarify that “[w]here a fundamental liberty interest
does not exist, substantive due process nonetheless protects against
the arbitrary and oppressive exercise of government power” and,
more specifically, that “[e]xecutive action is arbitrary in a constitu-
tional sense when it ‘shocks the conscience.’” Id. And then, sum-
marizing our holding, we said that the executive action at issue “[1]
d[id] not infringe any fundamental rights . . . and [2] d[id] not shock
the conscience.” Id. at 1293 (emphasis and enumeration added).
Pretty clearly, we treated either showing—infringement of a fun-
damental right or conscience-shocking behavior—as an inde-
pendently sufficient basis for a substantive-due-process claim.
So our own precedent is a mess. What about the Supreme
Court’s? Not much better. Let’s start with the modern fountain-
head, Lewis. Briefly, in Lewis, parents of a motorcycle passenger
killed in a high-speed police chase brought a substantive-due-
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23-10385 Newsom, J., Concurring 9

process claim against the officer involved in the pursuit. See 523
U.S. at 837. What does the Court’s opinion tell us about the shocks-
the-conscience test’s role in a substantive-due-process analysis or
the breadth of its application? Does the test apply to all challenges
to executive action, or only some? Does it apply to cases implicat-
ing fundamental rights, or only those in what I’ve called the “resid-
uum”? Short answer: Tough to say.
For starters, there are non-frivolous arguments that the Su-
preme Court meant to limit the scope of its holding to police-pur-
suit cases. After all, the Court described “[t]he issue in th[e] case”
as “whether a police officer violates the Fourteenth Amend-
ment[] . . . in a high-speed automobile chase aimed at apprehend-
ing a suspected offender,” reported that it had “granted certiorari
to resolve a conflict among the Circuits over the standard of culpa-
bility on the part of a law enforcement officer for violating substan-
tive due process in a pursuit case,” and announced as its “hold[ing]”
that “high-speed chases with no intent to harm suspects physically
or to worsen their legal plight do not give rise to liability under the
Fourteenth Amendment, redressible by an action under § 1983.”
Id. at 836, 839, 854 (citation omitted).
There’s also language in the Lewis opinion to suggest that
even if not strictly limited to pursuit cases, the Court intended to
apply the shocks-the-conscience standard only to “residuum” cases
that don’t implicate fundamental rights. The Court repeatedly cau-
tioned against “arbitrary” government conduct, see id. at 836, 843,
845, 846, 847, and emphasized that “[t]he touchstone of due process
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10 Newsom, J., Concurring 23-10385

is protection of the individual against arbitrary action of govern-

ment,” id. at 845 (quoting Wolff v. McDonnell, 418 U.S. 539, 558
(1974)) (alteration in original). Perhaps most pointedly in this re-
spect, the Lewis Court said this:
While due process protection in the substantive sense
limits what the government may do in both its legis-
lative, see, e.g., Griswold v. Connecticut, 381 U.S. 479
(1965), and its executive capacities, see, e.g., Rochin v.
California, 342 U.S. 165 (1952), criteria to identify what
is fatally arbitrary differ depending on whether it is leg-
islation or a specific act of a governmental officer that
is at issue. * * * Our cases dealing with executive ac-
tion have repeatedly emphasized that only the most
egregious official conduct can be said to be “arbitrary
in the constitutional sense . . . .” * * * To this end, for
half a century now we have spoken of the cognizable
level of executive abuse of power as that which
shocks the conscience.

Id. at 846 (emphasis added). All of the “arbitrar[iness]” talk in Lewis

is evocative of the standard that applies at the most deferential end
of the scrutiny spectrum, and thus could be understood to imply
that the Court wasn’t addressing itself to cases implicating funda-
mental rights.1

1Which raises yet another complication: Might Lewis itself have been a funda-
mental-rights case? The Supreme Court never said as much in so many words,
but one could reasonably assume that the right to “life,” which the plaintiffs’
son lost in the chase, is indeed fundamental. Cf. Browder v. City of Albuquerque,
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23-10385 Newsom, J., Concurring 11

But then there’s Lewis’s footnote 8. There, the Court specif-

ically responded to Justice Scalia’s charge that the shocks-the-con-
science test shouldn’t apply, and that under Glucksberg the focus
should instead be on whether “our Nation has traditionally pro-
tected the right [the plaintiffs] assert[ed].” 523 U.S. at 862 (Scalia,
J., concurring in the judgment). The majority rejoined as follows,
and in so doing gave every indication that the shocks-the-con-
science standard applies, at the threshold and across the board, to
all challenges to executive action, of whatever stripe and in what-
ever context:
[A] case challenging executive action on substantive
due process grounds, like this one, presents an issue
antecedent to any question about the need for histor-
ical examples of enforcing a liberty interest of the sort
claimed. For executive action challenges raise a partic-
ular need to preserve the constitutional proportions
of constitutional claims, lest the Constitution be de-
moted to what we have called a font of tort law. Thus,
in a due process challenge to executive action, the
threshold question is whether the behavior of the
governmental officer is so egregious, so outrageous,
that it may fairly be said to shock the contemporary
conscience. That judgment may be informed by a his-
tory of liberty protection, but it necessarily reflects an
understanding of traditional executive behavior, of

787 F.3d 1076, 1080 (10th Cir. 2015) (Gorsuch, J.) (considering the “fundamen-
tal right to life” in a substantive-due-process case brought by the estate of a
deceased occupant killed when his car was hit by a police cruiser).
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12 Newsom, J., Concurring 23-10385

contemporary practice, and of the standards of

blame generally applied to them. Only if the neces-
sary condition of egregious behavior were satisfied
would there be a possibility of recognizing a substan-
tive due process right to be free of such executive ac-
tion, and only then might there be a debate about the
sufficiency of historical examples of enforcement of
the right claimed, or its recognition in other ways. In
none of our prior cases have we considered the neces-
sity for such examples, and no such question is raised
in this case.

In sum, the difference of opinion in Glucksberg was

about the need for historical examples of recognition
of the claimed liberty protection at some appropriate
level of specificity. In an executive action case, no such
issue can arise if the conduct does not reach the de-
gree of the egregious.

Id. at 847–48 n.8 (emphasis added). 2

2 In his dissenting opinion, Judge Tjoflat calls footnote 8 “pure dicta.”

Dissent-
ing Op. at 28. The shocks-the-conscience test, he says, applies only to what he
calls “executive power plus” cases—i.e., those that involve “a common law tort
claim styled as a constitutional violation.” See id. at 19–20. Respectfully, I
don’t think Lewis supports that reading. The Lewis Court never drew a line
between “executive-power-plus” and fundamental-rights cases—a line that, it
seems to me, would be fuzzy and unstable in any event. See supra at 10–11 n.1.
Nor is footnote 8 dicta—even under Judge Tjoflat’s proposal for smoking out
superfluous language. See Dissenting Op. at 8–9. After all, the Lewis majority
expressly declined Justice Scalia’s invitation to bypass the shocks-the-con-
science test in favor of Glucksberg’s historical inquiry. See Lewis, 523 U.S. at
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23-10385 Newsom, J., Concurring 13

So, to summarize how things stood in the Supreme Court

after Lewis: Vague hints, perhaps, that the shocks-the-conscience
test might have a narrower berth, but clearer indications that the
Court meant for it to apply to all substantive-due-process chal-
lenges to executive action.
And what about since Lewis? You guessed it—more uncer-
tainty. In Chavez v. Martinez, 538 U.S. 760 (2003), the Court consid-
ered a substantive-due-process claim against an officer who had al-
legedly subjected a witness to a coercive interrogation. Writing for
a three-justice plurality, Justice Thomas seemed to apply both the
shocks-the-conscience and fundamental-rights analyses to conduct
that was indisputably executive in nature. First, the plurality cited
Lewis and stated that it could not “agree with [the plaintiff’s] char-
acterization of [the officer’s] behavior as ‘egregious’ or ‘conscience
shocking.’” Id. at 774–75 (plurality opinion). The plurality then
said, though—citing Glucksberg—that “the Due Process Clause also
protects certain ‘fundamental liberty interests’ from deprivation by
the government, regardless of the procedures provided, unless the
infringement is narrowly tailored to serve a compelling state inter-
est.” Id. at 775. That certainly makes it seem like the plurality

847–48 n.8. Because the officer’s conduct didn’t shock the conscience, the
Lewis majority saw no need to consider “historical examples of protected lib-
erty.” Id. at 847. So, far from dicta, the idea that “a due process challenge to
executive action” must first satisfy a shocks-the-conscience “threshold” was
integral to the Court’s reasoning. See id. at 847–48 And the fact that Justice
Scalia felt compelled to write separately in order to dispute that proposition
confirms as much. See id. at 860–62 (Scalia, J., concurring in the judgment).
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14 Newsom, J., Concurring 23-10385

thought that a substantive-due-process violation could be shown

either way—by conscience-shocking conduct or by infringement of
a fundamental right.
So, what to make of Lewis and Chavez? Neither is crystal
clear, but to the extent they give off notes, those notes are (also)
discordant: Lewis loudly indicates that the shocks-the-conscience
standard applies to all substantive-due-process challenges to execu-
tive action, whereas Chavez suggests, albeit more quietly, that the
test applies only outside the fundamental-rights context. For my-
self, I tend to think a similarly perplexed then-Judge Gorsuch rec-
onciled them about as well as can be done when he said that Lewis
is relatively clear, Chavez is relatively not, and so Lewis’s rule (?) that
the shocks-the-conscience standard applies across the board to all
executive-action challenges governs. His words:
In Chavez v. Martinez, a three-justice plurality seemed
to employ both the “legislative” and “executive” tests
in a case challenging executive action. What exactly
this means is unclear. * * * All we can say with cer-
tainty is that Chavez did not expressly overrule Lewis’s
holding that the “arbitrary or conscience shocking”
test is the appropriate one for executive action so we
feel obliged to apply it.

Browder v. City of Albuquerque, 787 F.3d 1076, 1079 n.1 (10th Cir.
2015) (citation omitted).
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23-10385 Newsom, J., Concurring 15

* * *
While no clear rule really emerges from this jurisprudential
dumpster fire, so far as I can tell, the best understanding is that any
plaintiff challenging executive action on the ground that it violates
substantive due process—even one who, like the plaintiffs here, in-
sists that the executive actor’s conduct has infringed a fundamental
right—must prove conscience-shocking behavior as a necessary el-
ement of his claim. 3
Now, finally, to a consideration of the implications of that
conclusion. Spoiler alert: Goofy.
III
So where does all this leave us? The way I see it, the legisla-
tive-executive distinction, and the ensuing application of the
shocks-the-conscience test to all challenges to executive actions, in-
cluding those that affect fundamental rights, results in a liability re-
gime that is totally bizarre: If the government infringes a funda-
mental right via legislative act, it will almost certainly lose—be-
cause, as the old saw goes, strict scrutiny is “strict in theory, but
fatal in fact.” See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237

3 Perhaps not surprisingly, a number of our sister circuits have come to that
conclusion, as well. See, e.g., DePoutot v. Raffaelly, 424 F.3d 112, 118 (1st Cir.
2005); Kane v. Barger, 902 F.3d 185, 192 (3d Cir. 2018); Hawkins v. Freeman, 195
F.3d 732, 738 (4th Cir. 1999) (en banc); Siefert v. Hamilton Cnty., 951 F.3d 753,
765–66 (6th Cir. 2020); Nelson v. City of Chicago, 992 F.3d 599, 604 (7th Cir.
2021); Moran v. Clarke, 296 F.3d 638, 644 (8th Cir. 2002) (en banc), abrogated on
other grounds by Manuel v. City of Joliet, 580 U.S. 357, 364 (2017).
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16 Newsom, J., Concurring 23-10385

(1995) (citation and quotation marks omitted). By contrast, if the

government infringes that right through executive action, it will
almost certainly win—because, as the case law bears out, pretty
much nothing shocks the conscience.
That makes no sense. There’s certainly no textual warrant
for such a radical disjunction in the Fifth or Fourteenth Amend-
ments’ Due Process Clauses, both of which address the govern-
ment generally, not a particular branch. See U.S. Const. amend V
(“No person shall be . . . deprived of life, liberty, or property, with-
out due process of law . . . .”); id. amend. XIV, § 1 (“No State shall
. . . deprive any person of life, liberty, or property, without due
process of law . . . .”). 4 But of course the lack of textual anchor
shouldn’t surprise us, because as I’ve said—too many times now—
the substantive-due-process doctrine has no root in the text at all.
See supra at 2.
Nor, to my mind, can the application of a more indulgent
constitutional standard to executive than to legislative action that
implicates fundamental rights be squared with common sense.

4 Nor does the shocks-the-conscience test find any footing in § 1983’s text. See
42 U.S.C. § 1983. So while Judge Tjoflat might be right that a shocks-the-con-
science “threshold requirement all but eliminates § 1983 as a remedy to com-
pensate citizens whose fundamental rights have been violated by state and lo-
cal executive action,” Dissenting Op. at 43–44, I think he missteps in blaming
this Court for “amend[ing]” § 1983, see id. at 47. That charge, it seems to me,
is more appropriately leveled at the Supreme Court than us, the middle-man-
agers who must heed and seek to implement the high court’s commands,
however muddled or misguided.
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23-10385 Newsom, J., Concurring 17

Why should the executive branch of the government be given

more leeway to violate constitutional rights than the legislative
branch? Then-Judge Gorsuch, puzzling over the same divergence,
suggested one possibility:
Perhaps the answer lies in the fact that legislation
touching on fundamental rights is clearly state action
and clearly affects the liberty of an entire class of per-
sons while executive action infringing fundamental
rights can often come by way of isolated and unau-
thorized conduct by individual rogue executive
agents against individual citizens.

Browder, 787 F.3d at 1079 n.1.

Maybe, but I’m skeptical. Executive officers often have and
exercise authority to promulgate policies that mimic legislation,
both in terms of the deliberation that goes into them and the
ground they cover. And courts aren’t always punctilious about dis-
tinguishing government conduct based on function rather than
branch. To take just one example, the district court considering a
substantive-due-process challenge to the Trump Administration’s
rescission of DACA applied the shocks-the-conscience standard de-
spite the fact that, for all practical purposes, that executive action
operated just like a statute. See Casa De Maryland v. U.S. Dep’t of
Homeland Sec., 284 F. Supp. 3d 758, 777 (D. Md. 2018), aff’d in part,
vacated in part, and rev’d in part, 924 F.3d 684 (4th Cir. 2019).
It seems to me (1) that the standards applicable to legislative
and executive infringements of fundamental rights should
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18 Newsom, J., Concurring 23-10385

probably be the same and (2) if there’s to be any divergence, then

current law might have gotten matters exactly backwards. After
all, it’s at the very least arguable that “executive action—which, by
its nature, is individual, targeted, and one-off, rather than broadly
and generally applicable—holds the greater potential for abuse.”
Hillcrest, 915 F.3d at 1311 (Newsom, J., concurring in the judg-
ment).
* * *
Bottom line: I’ve long known (and preached) that substan-
tive-due-process doctrine is atextual, ahistorical, and contaminated
by rogue precedents. And I’ve long feared that it is susceptible to
grave abuse on both sides of the jurisprudential divide. This case
has taught me that the legal framework the theory has generated is
too far gone. As the old saying goes, “If you find yourself in a hole,
best to stop digging.” For decades, courts invoking substantive due
process have bored a crater-sized hole in responsible constitutional
decisionmaking. We should be looking for ways to climb out of
that hole, not deepen it.
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23-10385 TJOFLAT, J., Dissenting 1

TJOFLAT, Circuit Judge, dissenting:

The “right of parents to direct the upbringing of their chil-
dren is among the ‘unalienable Rights’ with which the Declaration
of Independence proclaims ‘all men . . . are endowed by their Cre-
ator.’” Troxel v. Granville, 530 U.S. 57, 91, 120 S. Ct. 2054, 2074
(2000) (Scalia, J., dissenting). “[T]he interest of parents in the care,
custody, and control of their children—is perhaps the oldest of the
fundamental liberty interests” the Due Process Clause protects. Id.
at 65, 120 S. Ct. at 2060 (plurality opinion). “In a long line of cases,
[the Supreme Court] ha[s] held that, in addition to the specific free-
doms protected by the Bill of Rights, the ‘liberty’ specially pro-
tected by the Due Process Clause includes the right[] . . . to direct
the education and upbringing of one’s children . . . .” Washington v.
Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 2267 (1997); see also,
e.g., Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626 (1923)
(referring to “the right of the individual to . . . establish a home and
bring up children”); Pierce v. Soc’y of the Sisters of the Holy Names of
Jesus & Mary, 268 U.S. 510, 534–35, 45 S. Ct. 571, 573 (1925) (recog-
nizing “the liberty of parents and guardians to direct the upbringing
and education of children under their control”).
Today, this Court holds that Jeffrey and January Littlejohn,
parents of a minor child, A.G., cannot recover damages under 42
U.S.C. § 1983 against four executives of the Leon County School
District for violating their fundamental liberty interest in A.G.’s up-
bringing and education. The Court affirms the District Court’s dis-
missal of the Littlejohns’ complaint because the Littlejohns failed
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2 TJOFLAT, J., Dissenting 23-10385

to allege facts that the executives’ conduct was “so egregious, so

outrageous, that it may fairly be said to shock the contemporary
conscience.” Maj. Op. at 11; Cnty. of Sacramento v. Lewis, 523 U.S.
833, 847 n.8, 118 S. Ct. 1708, 1717 n.8 (1998). According to the
Court, if there was any doubt the Littlejohns had to prove that the
executives’ conduct was conscience-shocking to be heard on their
claim that the executives violated their fundamental interest in the
upbringing and education of A.G., Sacramento eliminated it:
Importantly for our purposes, the [Supreme] Court clar-
ified that the “conscience shocking” inquiry is a “thresh-
old question” that necessarily precedes any fundamen-
tal-rights analysis. In other words, even if a plaintiff al-
leges that executive action violated a fundamental right,
the plaintiff must first show that the action “shock[ed]
the contemporary conscience.”
Maj. Op. at 14–15 (citations omitted).
The Court points to Maddox v. Stephens, 727 F.3d 1109 (11th
Cir. 2013), as “illustrat[ing] the Sacramento framework in practice.”
Maj. Op. at 16. Maddox is “precedent,” the Court states, because it
“concerned the same fundamental parental rights that the Lit-
tlejohns assert.” Id. According to the Court, in Maddox, “[w]e found
that the plaintiff had ‘undisputed[ly]’ pled a violation of her sub-
stantive-due-process rights. But we said that such a violation was
not enough—rather, only conduct that is ‘arbitrary or conscience
shocking in a constitutional sense’ could trigger a substantive-due-
process violation.” Id. (citations omitted).
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23-10385 TJOFLAT, J., Dissenting 3

I do not read the Supreme Court’s opinion in Sacramento as

holding that “the conscience shocking inquiry is a threshold ques-
tion that necessarily precedes any fundamental-rights analysis.”
Contra Maj. Op. at 14–15. Nor do I read this Court’s opinion in Mad-
dox as holding that “only conduct that is ‘arbitrary or conscience
shocking in a constitutional sense’ could trigger a substantive-due-
process violation.” Contra id. at 16. If today’s opinion states the
law, then enforcement in the Eleventh Circuit of the fundamental
liberty interests the Littlejohns seek to vindicate under 42 U.S.C. §
1983 has come to an end. I respectfully dissent.
* * *
I turn first to three points to keep in mind while reading this
dissent. Then, in Part I, I turn to the legal backdrop surrounding
fundamental rights and the “shocks-the-conscience standard.” In
Part II, I turn to the factual issues litigated in Sacramento and the
holding the Supreme Court reached based on the resolution of
those issues. In Part III, I explain why Maddox’s holding is not an
application of Sacramento’s holding in the fundamental rights con-
text. Rather, the portion of Maddox that the Majority cites is pure
dicta. By taking it as the law, the Court has trampled on the prov-
ince of the Legislature, amended § 1983, and violated our Consti-
tution’s separation of powers. In part IV, I conclude.
* * *
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4 TJOFLAT, J., Dissenting 23-10385

It will be helpful in reading this dissent to keep three points

in mind:
A. Executive Power
The first point is that executive power falls under the “police
power.” Under the Tenth Amendment, “[t]he powers not dele-
gated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the peo-
ple.” Police power is “[t]he inherent and plenary power of a sover-
eign to make all laws necessary and proper to preserve the public
security, order, health, morality, and justice. It is a fundamental
power essential to government.” Police Power, Black’s Law Diction-
ary (12th ed. 2024). The executive branch of government at the
state and local levels is charged with attaining the government’s
police power objectives. The executives appointed to attain the ob-
jectives are given the authority—the executive power—needed to
do that work.
In Florida, the provision of public education is an exercise in
police power. Article IX of the Florida Constitution establishes a
public education system, comprised of a State Board of Education,
School Districts (by county), and School Boards that are charged
with operating the schools within the districts. Fla. Const. art. IX,
§§ 1(a), 2, 4. Drawing on its police power, the Leon County School
Board authorized its LGBTQ+ Equity Committee to develop the
Lesbian, Gay, Bisexual, Transgender, Gender Nonconforming and
Questioning Support Guide. The School Board assigned Superin-
tendent Hanna, Assistant Superintendent Rogers, Assistant
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23-10385 TJOFLAT, J., Dissenting 5

Principal Oliveri, and Counselor Thomas the task of implementing

the Guide. Their interactions with A.G. and the Littlejohns in-
volved the exercise of executive power.
If “the [police] power [is] so abused as to cause its exertion
to exceed the limits of the police power,” the exertion is brought
under “the prohibitions of ” the Due Process Clause of the Four-
teenth Amendment. Pac. Gas & Elec. Co. v. Police Ct. of Sacramento,
251 U.S. 22, 25, 40 S. Ct. 79, 81 (1919). Because executive power
derives from the police power, the same is true if executive power
is abused.
In his opinion for the Court in Sacramento, Justice Souter
used the following phrases to describe executive behavior that ex-
ceeds the limits of executive power, bringing the behavior under
the prohibition of the Fourteenth Amendment Due Process Clause
and “most probably support[ing] a substantive due process claim,”
523 U.S. at 849, 118 S. Ct. at 1718:
• “[C]onduct intended to injure in some way unjustifiable
by any government interest is the sort of official action
most likely to rise to the conscience-shocking level.” Id.
• “[A]n abuse of executive power so clearly unjustified by
any legitimate objective of law enforcement as to be
barred by the Fourteenth Amendment.” Id. at 840, 118
S. Ct. at 1713 (emphasis added).
• “[B]ehavior . . . so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience.”
Id. at 847 n.8, 118 S. Ct. at 1717 n.8.
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6 TJOFLAT, J., Dissenting 23-10385

B. Dicta
The second point is that dicta are not precedential—only
holdings are. “A judge’s power to bind is limited to the issue that is
before him; he cannot transmute dictum into decision by waving a
wand and uttering the word ‘hold.’” United States v. Rubin, 609 F.2d
51, 69 n.2 (2d Cir. 1979) (Friendly, J., concurring). This is because
Article III of the U.S. Constitution confines federal courts to the
resolution of actual “Cases” or “Controversies.” U.S. Const. art. III,
§ 2. 1 Dicta, however, are statements or observations in a court’s
opinion that are not directly related to the facts or legal questions
necessary to resolve the action. Chief Justice Marshall explained
why dicta are not binding:
It is a maxim not to be disregarded, that general expres-
sions, in every opinion, are to be taken in connection
with the case in which those expressions are used. If they
go beyond the case, they may be respected, but ought
not to control the judgment in a subsequent suit when
the very point is presented for decision. The reason of
this maxim is obvious. The question actually before the
Court is investigated with care, and considered in its full

1 Although the role of federal courts might be debated amongst the bar, bench,
and lectern, I agree with Judge Newsom that “once a court has fulfilled its
obligation—that is, has said enough to resolve the parties’ dispute—it should
just stop. It shouldn’t forge ahead, reach out, and declare more law.” United
States v. Files, 63 F.4th 920, 933 (11th Cir. 2023) (Newsom, J., concurring), cert.
denied, 144 S. Ct. 419 (2023).
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23-10385 TJOFLAT, J., Dissenting 7

extent. Other principles which may serve to illustrate it,

are considered in their relation to the case decided, but
their possible bearing on all other cases is seldom com-
pletely investigated.
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399–400 (1821). In other
words, “Dicta are less carefully considered than holdings, and,
therefore, less likely to be accurate statements of law.” Michael C.
Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2000 (1994).
“[C]ourts are more likely to exercise flawed, ill-considered judg-
ment, more likely to overlook salutary cautions and contraindica-
tions, more likely to pronounce flawed rules, when uttering dicta
than when deciding their cases.” Pierre N. Leval, Judging Under the
Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1255 (2006).
In addition to accuracy problems, confusing dicta as binding
presents a profound separation of powers issue. “[C]ourts have le-
gitimate authority only to decide cases, not make law in the ab-
stract.” Dorf, supra, at 2001. Because dicta are outside the case or
controversy, relying on dicta ventures into the terrain of advisory
opinions and steps on the line separating the Legislature’s province
2
to make law from the Judiciary’s role in deciding controversies.

2
Chief Justice Jay and the Associate Justices noted as early as 1793 that the
constitutional separation of powers counsels against the “propriety of [the fed-
eral judiciary] extrajudicially deciding” questions which arise outside of a case
or controversy. Letter from Chief Justice John Jay and the Associate Justices
to President George Washington (August 8, 1793), 3 Correspondence & Public
Papers of John Jay 488–89 (Henry P. Johnston ed., 1891). Consequently,
“[f]ederal judicial power is limited to those disputes which confine federal
courts to a rule consistent with a system of separated powers.” Flast v. Cohen,
392 U.S. 83, 97, 88 S. Ct. 1942, 1951 (1968); see also Muskrat v. United States, 219
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8 TJOFLAT, J., Dissenting 23-10385

How do we know what is dictum? Judge Pierre Leval offers

an illustrative test:
To identify dictum, it is useful to turn the questioned
proposition around to assert its opposite, or to assert
whatever alternative proposition the court rejected in its
favor. If the insertion of the rejected proposition into the
court’s reasoning, in place of the one adopted, would
not require a change in either the court’s judgment or

U.S. 346, 356, 31 S. Ct. 250, 253 (1911) (“[U]nless [the judicial power] is asserted
in a case or controversy within the meaning of the Constitution, the power to
exercise it is nowhere conferred.”). The judicial power does not create “roving
commission[s] to publicly opine on every legal question.” TransUnion LLC v.
Ramirez, 594 U.S. 413, 423, 141 S. Ct. 2190, 2203 (2021); see also Fed. Bureau of
Investigation v. Fikre, 601 U.S. 234, 241, 144 S. Ct. 771, 777 (2024) (“[F]ederal
judges are not counselors or academics; they are not free to take up hypothet-
ical questions that pique a party’s curiosity or their own.”).
This limitation on the judicial power is a necessary guard of liberty, for
“there is no liberty if the power of judging be not separated from the legislative
and executive powers.” The Federalist No. 78, at 465 (Alexander Hamilton)
(Clinton Rossiter ed., 1961). As such, the Supreme Court emphasizes that ren-
dering advisory opinions gives rise to dangers and must therefore be
avoided. See Michigan v. Long, 463 U.S. 1032, 1041, 103 S. Ct. 3469, 3476 (1983).
“However much provision may be made on paper for adequate arguments
(and experience justifies little reliance) advisory opinions are bound to move
in an unreal atmosphere.” Felix Frankfurter, A Note on Advisory Opinions, 37
Harv. L. Rev. 1002, 1006 (1924). Ignoring this restriction on the federal judici-
ary poses grave danger, given the political function implicit in the power of
the judiciary to abrogate unconstitutional behaviors. See id. at 1007. No matter
the evil presented to the courts, the federal judiciary “cannot rightly attempt
to protect the people, by undertaking a function not its own.” Id. at 1008.
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23-10385 TJOFLAT, J., Dissenting 9

the reasoning that supports it, then the proposition is

dictum. It is superfluous. It had no functional role in
compelling the judgment.
Leval, supra, at 1257.
Our Circuit abides by these principles. Former Chief Judge
Ed Carnes, joined by Chief Judge William Pryor, clarifies in his con-
currence in Nelson v. Tompkins: “This Court has often stressed that
no decision can hold anything that goes beyond the facts of the
3
case.” 89 F.4th 1289, 1303 (11th Cir. 2024) (Carnes, J., concurring).

3
See also, e.g., Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) (“We
have pointed out many times that regardless of what a court says in its opinion,
the decision can hold nothing beyond the facts of that case. All statements that
go beyond the facts of the case . . . are dicta. And dicta [are] not binding on
anyone for any purpose.” (citations omitted)); Chavers v. Sec’y, Fla. Dep’t of
Corr., 468 F.3d 1273, 1275 (11th Cir. 2006) (“The holdings of a prior decision
can reach only as far as the facts and circumstances frame the precise issue
presented in that case.”); Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1207
(11th Cir. 2003) (“Whatever their opinions say, judicial decisions cannot make
law beyond the facts of the cases in which those decisions are an-
nounced.”); United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (“The
holdings of a prior decision can reach only as far as the facts and circumstances
presented to the Court in the case which produced that decision.” (quot-
ing United States v. Hunter, 172 F.3d 1307, 1309 (11th Cir. 1999) (Carnes, J., con-
curring) (quotation marks omitted))); see also Moon v. Head, 285 F.3d 1301, 1318
(11th Cir. 2002) (Carnes, J., concurring) (“Those statements are dicta. They are
dicta because they go beyond the facts of the [earlier] case itself . . . .”); Ingram
v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1265 (11th Cir. 2007) (“Judicial
opinions do not make binding precedents; judicial decisions do.” (quoting
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10 TJOFLAT, J., Dissenting 23-10385

So what do Sacramento and Maddox hold? And how much of

what was written are obiter dicta? The answers to these questions
are pertinent to an accurate understanding of the law as it stands.
C. Liberty Interests
The third point is that, unless otherwise indicated, in using
the terms “fundamental right(s),” “fundamental liberty interest(s)”
and “parental right(s),” I am referring to liberty interests like the
provisions of the Bill of Rights that have been incorporated into
the Fourteenth Amendment through its Due Process Clause be-
cause they are “‘fundamental to our scheme of ordered liberty,’ or
‘deeply rooted in this Nation’s history and tradition.’” Timbs v. Indi-
ana, 586 U.S. 146, 150, 139 S. Ct. 682, 687 (2019) (quoting McDonald
v. City of Chicago, 561 U.S. 742, 767, 130 S. Ct. 3020, 3036 (2010)).
I. FUNDAMENTAL RIGHTS PRE-SACRAMENTO
Before I discuss why Sacramento does not hold what this
Court purports it does, it is imperative to understand the backdrop
against which Sacramento took place.
In 1923, the Supreme Court clarified that the liberty guaran-
teed by the Fourteenth Amendment “denotes not merely freedom
from bodily restraint” but also protects liberties including “the
right . . . to . . . bring up children.” Meyer, 262 U.S. at 399, 43 S. Ct.
at 626.

Dantzler v. IRS, 183 F.3d 1247, 1251 (11th Cir. 1999) (alteration adopted) (quo-
tation marks omitted))).
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23-10385 TJOFLAT, J., Dissenting 11

The Supreme Court has continued to affirm the proposition

that parents have a fundamental liberty interest in raising their chil-
dren. See Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2267; Pierce, 268
U.S. at 534–35, 45 S. Ct. at 573. In other words, the Littlejohns as-
4
sert a fundamental interest, meaning it ought to be protected from
unnecessary government interference, regardless of whether that
interference is “conscience shocking.” So where did “shocks the
conscience” come into play?
“Shocks the conscience” made its debut in Rochin v. Califor-
nia, 342 U.S. 165, 172, 72 S. Ct. 205, 209 (1952). There, the Court
held that a conviction premised on drugs that were obtained by
pumping the defendant’s stomach violated the Due Process Clause
of the Fourteenth Amendment. At the time, Justice Frankfurter,
who wrote the majority opinion, did not believe that the Fourth,
Fifth, and Sixth Amendments applied to the states through the
Fourteenth Amendment. Instead, Justice Frankfurter stated that
conduct that “shocks the conscience” violated Due Process because
it “offend[s] the community’s sense of fair play and decency.” Id. at
173, 72 S. Ct. at 210. But Rochin never suggested that “shocks the
conscience” was a threshold requirement or an element of a Due
Process claim.
For a while, “shocks the conscience” appeared only spar-
ingly. In 1957, the Court applied the standard to deny a habeas pe-
tition. Breithaupt v. Abram, 352 U.S. 432, 436–37, 77 S. Ct. 408, 411

4 The Majority “assume[s] without deciding that the Littlejohns invoke ‘fun-
damental’ rights.” Maj. Op. at 10.
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12 TJOFLAT, J., Dissenting 23-10385

(1957). Then in United States v. Salerno, the Court stated that “sub-
stantive due process prevents the government from engaging in
conduct that shocks the conscience or interferes with rights implicit
in the concept of ordered liberty.” 481 U.S. 739, 746, 107 S. Ct. 2095,
2101 (1987) (emphasis added) (citations and internal quotation
marks omitted). There, it was clear that “shocking the conscience”
was not a threshold requirement to vindicate a fundamental right,
hence the Court’s disjunctive framing. That is seen later in Young-
berg v. Romeo, where the Court held that the Due Process Clause
protects against unsafe confinement and unreasonable body re-
straints. 457 U.S. 307, 324, 102 S. Ct. 2452, 2462 (1982). In Youngberg,
the Court never mentioned “shocks the conscience” or even cited
Rochin. See generally id.
Indeed, “[a]n analysis of every Supreme Court citation to Ro-
chin from 1952 to 1998 demonstrates that, outside the context of
the evidentiary exclusionary rule, the shocks the conscience test
was cited much more frequently in dissenting opinions, often re-
jected, and strongly criticized. It was never considered to be the
only standard for challenging executive misconduct, nor was it
viewed as supplanting fundamental rights analysis.” Rosalie Berger
Levinson, Time to Bury the Shocks the Conscience Test, 13 Chap. L. Rev.
307, 315–16 (2010).
Our Circuit precedent supports this understanding of the law.
For example, in Arnold v. Bd. of Educ. of Escambia Cnty., we found
that a parent’s constitutional right to direct the upbring-
ing of a minor is violated when the minor is coerced to
refrain from discussing with the parent an intimate
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23-10385 TJOFLAT, J., Dissenting 13

decision such as whether to obtain an abortion; a deci-

sion which touches fundamental values and religious be-
liefs parents wish to instill in their children.
880 F.2d 305, 312 (1989), abrogated on other grounds by Leatherman v.
Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 113
5
S. Ct. 1160 (1993). Arnold makes no mention of “shocking the con-
science” because hornbook constitutional law principles do not re-
quire it to do so. We correctly acknowledged that fundamental
rights were protected from government intrusion even when that
intrusion did not “shock the conscience.”
No more, according to the Majority. It reads Sacramento to muz-
zle the vindication of fundamental rights. What’s more—the Ma-
jority purports that Sacramento did all of this in a footnote. Instead
of fundamental rights being protected from an executive actor’s
intrusion, they are protected only if the act “shocks the con-
science.” The Majority is wrong.

II. COUNTY OF SACRAMENTO V. LEWIS

Today, this Court holds that “even if a plaintiff alleges that ex-
ecutive action violated a fundamental right, the plaintiff must first
show that the action ‘shock[ed] the contemporary conscience.’”
Maj. Op. at 15. In other words, a plaintiff must allege and prove
that the executive’s action exceeded the limits of his authorized

5
In Swann v. Southern Health Partners, Inc., 388 F.3d 834 (2004), we held that
Leatherman overruled Arnold to the extent it held a heightened pleading stand-
ard applied to § 1983 actions. Id. at 837. That makes no difference here.
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14 TJOFLAT, J., Dissenting 23-10385

power and therefore constituted a substantive due process viola-

tion. The Court reaches that holding because Sacramento “clarified
that the ‘conscience shocking’ inquiry is a ‘threshold question’ that
necessarily precedes any fundamental-rights analysis.” Maj. Op. at
14–15. But Sacramento did no such thing.
Justice Souter’s opinion for the Court in Sacramento states the
issue before the Court as “whether a police officer violates the
Fourteenth Amendment’s guarantee of substantive due process by
causing death through deliberate or reckless indifference to life in
a high-speed automobile chase aimed at apprehending a suspected
offender.” 523 U.S. at 836, 118 S. Ct. at 1711. The Court answered
no and held that “in such circumstances only a purpose to cause harm
6
unrelated to the legitimate object of arrest will satisfy the element of
arbitrary conduct shocking to the conscience, necessary for a due pro-
cess violation.” 7 Id., 118 S. Ct. at 1711–12 (emphasis added).
A. The Facts Leading to Suit
The facts underpinning the Supreme Court’s holding in Sac-
ramento—that the police officer did not violate the Fourteenth
Amendment’s guarantee of substantive due process—were these:

6
I read “unrelated to the legitimate object of arrest” as beyond the limits of
executive power.
7
The Court in Sacramento granted certiorari “to resolve a conflict among the
Circuits over the standard of culpability on the part of a law enforcement of-
ficer for violating substantive due process in a pursuit case.” Id. at 839, 118 S.
Ct. at 1713.
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23-10385 TJOFLAT, J., Dissenting 15

On May 22, 1990, at approximately 8:30 p.m., petitioner

James Everett Smith, a Sacramento County sheriff’s dep-
uty, along with another officer, Murray Stapp, responded
to a call . . . . Upon returning to his patrol car, Stapp saw
a motorcycle approaching at high speed. It was operated
by 18-year-old Brian Willard and carried Philip Lewis, re-
spondents’ 16-year-old decedent, as a passenger. . . .
Stapp turned on his overhead rotating lights, yelled to
the boys to stop, and pulled his patrol car closer to
Smith’s, attempting to pen the motorcycle in. Instead of
pulling over in response to Stapp’s warning lights and
commands, Willard slowly maneuvered the motorcycle
between the two police cars and sped off. Smith imme-
diately switched on his own emergency lights and siren,
made a quick turn, and began pursuit at high speed. For
75 seconds over a course of 1.3 miles in a residential
neighborhood, the motorcycle wove in and out of on-
coming traffic, forcing two cars and a bicycle to swerve
off the road. The motorcycle and patrol car reached
speeds up to 100 miles an hour, with Smith following at
a distance as short as 100 feet; at that speed, his car
would have required 650 feet to stop.
The chase ended after the motorcycle tipped over as
Willard tried a sharp left turn. By the time Smith
slammed on his brakes, Willard was out of the way, but
Lewis was not. The patrol car skidded into him at 40
miles an hour, propelling him some 70 feet down the
road and inflicting massive injuries. Lewis was pro-
nounced dead at the scene.
Id. at 836–37, 118 S. Ct. at 1712.
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16 TJOFLAT, J., Dissenting 23-10385

B. The lawsuit
Lewis’s parents and the representatives of Lewis’s estate, in-
voking 42 U.S.C. § 1983, sued Sacramento County, the Sacramento
County Sheriff’s Department, and Deputy Smith, “alleging a dep-
rivation of Philip Lewis’s Fourteenth Amendment substantive due
process right to life.”8 Id. at 837, 118 S. Ct. at 1712. The District
Court granted summary judgment for the county and sheriff’s de-
partment and dismissed the claim against Smith on the ground of
qualified immunity. Id. The Ninth Circuit reversed as to Smith and
remanded the case for further proceedings, finding a genuine issue
of fact as to whether “Smith’s conduct amounted to deliberate in-
difference.” Id. at 838, 118 S. Ct. at 1712–13.
On certiorari, the Supreme Court restated the plaintiffs’
claim against Smith as: “Smith’s actions in causing Lewis’s death
were an abuse of executive power so clearly unjustified by any legitimate
objective of law enforcement as to be barred by the Fourteenth
Amendment.” Id. at 840, 118 S. Ct. at 1713 (emphasis added).
C. The Supreme Court’s Decision
The Court held that “high-speed chases with no intent to
harm suspects physically or to worsen their legal plight do not give
rise to liability under the Fourteenth Amendment, redressible by

8
Philip Lewis’s parents initially sued in state court bringing claims under 42
U.S.C. § 1983 for the deprivation of Lewis’s life and for compensation under
state law for Lewis’s wrongful death. Lewis v. Sacramento County, 98 F.3d 434,
437 (9th Cir. 1996). The defendants removed the case to federal court based on
federal question jurisdiction. Id.
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23-10385 TJOFLAT, J., Dissenting 17

an action under § 1983.” Id. at 854, 118 S. Ct. at 1720. The sum and
substance of Sacramento’s holding is that Smith’s behavior in doing
his job as a law enforcement officer did not deny Philip Lewis sub-
9
stantive due process.
Smith was faced with a course of lawless behavior for
which the police were not to blame. They had done
nothing to cause Willard’s high-speed driving in the first
place, nothing to excuse his flouting of the commonly
understood law enforcement authority to control traffic,
and nothing (beyond a refusal to call off the chase) to
encourage him to race through traffic at breakneck
speed forcing other drivers out of their travel lanes.
Willard’s outrageous behavior was practically instanta-
neous, and so was Smith’s instinctive response. While
prudence would have repressed the reaction, the of-
ficer’s instinct was to do his job as a law enforcement
officer, not to induce Willard’s lawlessness, or to terror-
ize, cause harm, or kill.
Regardless whether Smith’s behavior offended the rea-
sonableness held up by tort law or the balance struck in
law enforcement’s own codes of sound practice, it does
not shock the conscience . . . .
Id. at 855, 118 S. Ct. at 1721.

9
The Court reversed the Ninth Circuit’s decision and, in effect, affirmed the
District Court’s summary judgment on the ground that the Sacramento plain-
tiffs failed to create an issue of fact warranting a jury trial on their substantive
due process claim. See id. at 855, 118 S. Ct. at 1721.
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18 TJOFLAT, J., Dissenting 23-10385

D. Footnote 8
Today’s majority rests its decision on a “clarification” hidden
within Sacramento’s footnotes. According to this Court, Justice
Souter clarified Sacramento’s “holding” in footnote 8:
As we explain in the text, a case challenging executive
action on substantive due process grounds, like this one,
presents an issue antecedent to any question about the
need for historical examples of enforcing a liberty inter-
est of the sort claimed. For executive action challenges raise
a particular need to preserve the constitutional proportions of
constitutional claims, lest the Constitution be demoted to
what we have called a font of tort law. Thus, in a due process
challenge to executive action, the threshold question is
whether the behavior of the governmental officer is so egre-
gious, so outrageous, that it may fairly be said to shock the
contemporary conscience. That judgment may be in-
formed by a history of liberty protection, but it neces-
sarily reflects an understanding of traditional executive
behavior, of contemporary practice, and of the stand-
ards of blame generally applied to them. Only if the nec-
essary condition of egregious behavior were satisfied
would there be a possibility of recognizing a substantive
due process right to be free of such executive action, and
only then might there be a debate about the sufficiency
of historical examples of enforcement of the right
claimed, or its recognition in other ways. In none of our
prior cases have we considered the necessity for such ex-
amples, and no such question is raised in this case.
Id. at 847 n.8, 118 S. Ct. at 1717 n.8 (emphasis added).
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23-10385 TJOFLAT, J., Dissenting 19

1. A Font of Tort Law

The portion of footnote 8 italicized above indicates that Jus-
tice Souter, like the Supreme Court as a whole, was concerned
about 42 U.S.C. § 1983 becoming a “font of tort law.” Id. The com-
plaint in Sacramento alleged that Deputy Smith caused Philip
Lewis’s death “through deliberate or reckless indifference to life in
a high-speed automobile chase.” Id. at 836, 118 S. Ct. at 1711. In
essence, the complaint presented a common law tort claim styled
10
as a constitutional violation. That is, the only thing distinguishing
the plaintiffs’ claim from a tort was that the defendant happened to
be a state actor. As a result, the plaintiffs could argue that Smith’s
actions deprived Lewis “of life . . . without due process of law” in
violation of the U.S. Constitution. See U.S. Const. amend. XIV.
In Sacramento, Justice Souter avoids the “font of tort law”
problem by restating the claim as an abuse of executive power:
“Smith’s actions in causing Lewis’s death were an abuse of executive
power so clearly unjustified by any legitimate objective of law en-
forcement as to be barred by the Fourteenth Amendment.” Id. at
840, 118 S. Ct. at 1713 (emphasis added). Footnote 8 further ensures
the avoidance with this statement: “in a due process challenge to
executive action, the threshold question is whether the behavior of
the governmental officer is so egregious, so outrageous, that it may

10
California law prevented the Lewis plaintiffs from bringing their claim as a
state law tort action. See Cal. Veh. Code § 17004 (1990) (providing that a public
employee is not liable for civil damages resulting from the operation of an
emergency vehicle in immediate pursuit of a suspected criminal).
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20 TJOFLAT, J., Dissenting 23-10385

fairly be said to shock the contemporary conscience.” Id. at 847 n.8,

118 S. Ct. at 1717 n.8. This sentence and the “font of tort law” sen-
tence preceding it describe deliberate and tortious conduct. Thus,
footnote 8 essentially creates an “executive power plus” inquiry: to
amount to a substantive due process claim, the officer’s behavior
must exceed the limits of his executive power. The “plus” is that
the behavior is “so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience.” Id.
Using this test in Littlejohn is inapt. The executives who de-
prived the Littlejohns of their constitutional right did not commit
a common law tort or abuse their executive power. To the con-
trary, the Littlejohns allege the deprivation of parental rights that
are anchored in the Constitution because they are “‘fundamental
to our scheme of ordered liberty,’ or ‘deeply rooted in this Nation’s
history and tradition.’” See Timbs, 586 U.S. at 150, 139 S. Ct. at 687
(quoting McDonald, 561 U.S. at 767, 130 S. Ct. at 3036). And the
deprivation took place while the executives were simply doing
their jobs. The Littlejohns’ lawyers could not have alleged that the
executives’ behavior was beyond the scope of the executives’ job
responsibilities and executive power. That is because the behavior
naturally fell within their authority to implement the Guide and
was not “so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.” Sacramento, 523 U.S. at 847
n.8, 118 S. Ct. at 1717 n.8. The lawyers could not allege that the
executives abused their power when acting under policy because
Rule 11 prohibits such frivolity. See Fed. R. Civ. P. 11(b)(2).
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23-10385 TJOFLAT, J., Dissenting 21

The Majority is mistaken to apply the “shocks the con-

science” test here. A straightforward reading of footnote 8 and re-
lated passages of Justice Souter’s opinion reveals that the threshold
requirement does not apply in § 1983 cases brought against execu-
tives for the infringement of a fundamental liberty interest that—-
like many of the Bill of Rights provisions—has been incorporated
into the Fourteenth Amendment through its Due Process Clause.
Foremost in the Sacramento Court’s mind was the proposi-
tion that
the Fourteenth Amendment is not a “font of tort law to
be superimposed upon whatever systems may already
be administered by the States” . . . . “[O]ur Constitution
. . . does not purport to supplant traditional tort law in
laying down rules of conduct to regulate liability for in-
juries that attend living together in society.” We have
accordingly rejected the lowest common denominator
of customary tort liability as any mark of sufficiently
shocking conduct, and have held that the Constitution
does not guarantee due care on the part of state officials;
liability for negligently inflicted harm is categorically be-
neath the threshold of constitutional due process. It is,
on the contrary, behavior at the other end of the culpa-
bility spectrum that would most probably support a sub-
stantive due process claim; conduct intended to injure in
some way unjustifiable by any government interest is
the sort of official action most likely to rise to the con-
science-shocking level.
523 U.S. at 848–49, 118 S. Ct. at 1718 (citations omitted).
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22 TJOFLAT, J., Dissenting 23-10385

Footnote 8 to Justice Souter’s opinion deals with what a

plaintiff must show to place his tort claim at the other end of the
end of the customary tort law culpability spectrum and therefore
obtain a hearing on whether the executive’s infringement of his
liberty is compensable in damages. Below, I recite the relevant pas-
sages of footnote 8 followed by commentary that clarifies what the
footnote means.
Excerpt 1
As we explain in the text, a case challenging executive
action on substantive due process grounds, like this one,
presents an issue antecedent to any question about the
need for historical examples of enforcing a liberty inter-
est of the sort claimed. For executive action challenges
raise a particular need to preserve the constitutional pro-
portions of constitutional claims, lest the Constitution
be demoted to what we have called a font of tort law.
Thus, in a due process challenge to executive action, the
threshold question is whether the behavior of the gov-
ernmental officer is so egregious, so outrageous, that it
may fairly be said to shock the contemporary con-
science.
Id. at 847 n.8, 118 S. Ct. at 1717 n.8.
The Court is taking steps to ensure that enforcing a liberty
interest in life (or physical security) is not demoting the Constitu-
tion to a font of tort law. The conduct the plaintiff introduces in
responding to the threshold question must be more than “deliber-
ate or reckless indifference to life” (or physical security). Id. at 836,
118 S. Ct. at 1711. It must constitute an abuse of the executive’s
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23-10385 TJOFLAT, J., Dissenting 23

police power so egregious, so outrageous as to shock the contem-

porary conscience. Stated another way, the executive action must
involve “conduct intended to injure [the plaintiff] in some way un-
justifiable by any government interest.” Id. at 849, 118 S. Ct. at
1718. That is, the conduct was an unjustified exercise of the police
power. Only after finding that the executive engaged in such con-
duct will the trial court consider whether historical examples of en-
forcing the liberty interest involved are needed to allow the plaintiff
to go forward with his tort claim.
Lastly, the reference to “the constitutional proportions of
constitutional claims” is a reference to claims like the Littlejohns’
for the enforcement of liberty interests incorporated into the Four-
teenth Amendment for protection.
Excerpt 2

That judgment may be informed by a history of liberty

protection, but it necessarily reflects an understanding
of traditional executive behavior, of contemporary prac-
tice, and of the standards of blame generally applied to
them.
Id. at 847 n.8, 118 S. Ct. at 1717 n.8.
In deciding whether the executive’s conduct shocked the
contemporary conscience, the trial court considers the standards
of conduct governing “traditional executive behavior” and “con-
temporary practice.” Id. Trial courts routinely draw on such stand-
ards in personal injury cases to determine whether to find the de-
fendant liable for alleged tortious behavior.
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24 TJOFLAT, J., Dissenting 23-10385

Excerpt 3
Only if the necessary condition of egregious behavior
were satisfied would there be a possibility of recognizing
a substantive due process right to be free of such execu-
tive action, and only then might there be a debate about
the sufficiency of historical examples of enforcement of
the right claimed, or its recognition in other ways. In
none of our prior cases have we considered the necessity
for such examples, and no such question is raised in this
case.
Id.
Opinions in Washington v. Glucksberg differed about the need
for historical examples of the recognition of the claimed liberty
protection at some level of specificity. Compare 521 U.S. at 720–22,
117 S. Ct. at 2268, with id. at 765, 117 S. Ct. a 2281–82 (Souter, J.,
concurring in the judgment) In footnote 8, Justice Souter stated
that in an action challenging executive conduct, the historical-ex-
amples issue cannot arise unless the conduct is so egregious and
outrageous that it shocks the contemporary conscience. Sacra-
mento, 523 U.S. at 847 n.8, 118 S. Ct. at 1717 n.8.
The issue before the Court in Sacramento was whether Dep-
uty Smith’s conduct constituted “an abuse of executive power so
clearly unjustified by any legitimate objective of law enforcement
as to be barred by the Fourteenth Amendment.” Id. at 840, 118 S.
Ct. at 1713. In other words, the question was whether Deputy
Smith “intended to injure [Lewis] in some way unjustifiable by any
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23-10385 TJOFLAT, J., Dissenting 25

government interest.” Id. at 849, 118 S. Ct. at 1718. That is “the sort
of official action most likely to rise to the conscience-shocking
level.” Id. A substantive due process claim was unavailable because
Smith was doing his job and had no intention to injure Lewis.
The language of footnote 8 makes it clear that the Court was
not holding that a claim asserting an executive’s violation of a lib-
erty interest protected by the Fourteenth Amendment could only
go forward if the plaintiff first alleged and proved that executive’s
conduct shocked contemporary conscience.
2. Conflicting Standards
Justice Souter was aware of the foundational differences be-
tween a substantive due process claim founded on an abuse of ex-
ecutive power so egregious and outrageous that it shocks the con-
temporary conscience and a claim founded on a right incorporated
into the Fourteenth Amendment as fundamental to the Nation’s
scheme of ordered liberty. United States v. Salerno, which Justice
Souter cites in Sacramento, highlights the differences:
“[S]ubstantive due process” prevents the government
from engaging in conduct that “shocks the conscience,”
. . . or interferes with rights “implicit in the concept of
ordered liberty.”
Salerno, 481 U.S. at 746, 107 S. Ct. at 2101 (quoting Rochin, 342 U.S.
at 172, 72 S. Ct. at 209; Palko v. Connecticut, 302 U.S. 319, 325–26, 58
S. Ct. 149, 152 (1937)).
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26 TJOFLAT, J., Dissenting 23-10385

Under Rochin’s standard, an executive is answerable for en-

gaging in conduct beyond the executive power, conduct that is not
remotely related to the executive’s job responsibilities and is so
abusive and outrageous as to shock the contemporary con-
science—executive power “plus.”
Under the other standard, quoted from Palko v. Connecticut,
an executive is answerable for violating a fundamental right even
if that violation occurred in the scope of the executive’s job.
The executives whom the Littlejohns sued were engaging in
conduct within their executive power and job responsibilities when
they allegedly violated the Littlejohns’ parental rights. Requiring
the Littlejohns to allege and prove the contrary to obtain a day in
court on their parental rights claims is to require them to allege and
prove a falsehood, a farce. Their rights will go unenforced.
The word “or” that appears in Salerno’s statement of what
“substantive due process prevents” tells us that Sacramento did not
intend to create such a farce. Substantive due process prevents ex-
ecutive “conduct intended to injure in some way unjustifiable by
any government interest,” Sacramento, 523 U.S. at 849, 118 S. Ct. at
1718, that is beyond the executive’s job responsibilities, and is so
abusive of the executive’s power as to shock “the contemporary
conscience,” id. at 847 n.8, 118 S. Ct. at 1717 n.8, or conduct that is
within the executive’s job responsibilities and the executive power
but “interferes with rights implicit in the concept of ordered lib-
erty,” id. at 847, 118 S. Ct. at 1717 (citations and internal quotation
marks omitted).
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23-10385 TJOFLAT, J., Dissenting 27

Salerno did not contemplate the absurdity of requiring a plain-

tiff alleging interference of a fundamental right to simultaneously
allege something quite different. The word “or” avoids the absurd-
ity.
As we and the Supreme Court have explained, “[t]he ordinary
use of ‘or’ is almost always disjunctive, and the words it connects are
to be given separate meanings.” Santos v. Healthcare Rev. Recovery Grp.,
90 F.4th 1144, 1153 (11th Cir. 2024) (per curiam) (quoting United
States v. Woods, 571 U.S. 31, 45, 134 S. Ct. 557, 567 (2013) (internal
quotation marks omitted)); see also Antonin Scalia & Bryan A. Gar-
ner, Reading Law: The Interpretation of Legal Texts 116 (2012) (“Un-
der the conjunctive/disjunctive canon, and combines items
while or creates alternatives.”).
In sum, requiring the Littlejohns to satisfy Rochin’s con-
science-shocking standard to have a day in court under Palko’s vio-
lation-of-a-fundamental-right standard makes no sense. If, as the
Court states, “the [Supreme] Court clarified that the ‘conscience
shocking’ inquiry is a ‘threshold question’ that necessarily precedes
any fundamental-rights analysis,” Maj. Op. at 14–15, why does Sac-
ramento acknowledge that substantive due process functions in two
totally unrelated causes of action, each with mutually exclusive and
contradictory elements?
3. Obiter Dictum
Even if footnote 8 set out what the Majority purports it does,
nothing in footnote 8 would hold that a plaintiff cannot claim that
executive action violated a fundamental right without first alleging
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28 TJOFLAT, J., Dissenting 23-10385

and proving that the action was beyond the limits of executive
power and was “so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience.” Sacramento, 523 U.S.
at 847 n.8, 118 S. Ct. at 1717 n.8. Rather than a holding, the footnote
8 language this Court relies on is pure dicta.
The language is dicta because the Sacramento plaintiffs’ com-
plaint did not allege that Deputy Smith violated a fundamental lib-
erty interest. The complaint asserted the claim Justice Souter iden-
tified in the opening paragraph of his opinion for the Court: Dep-
uty Smith “violate[d] the Fourteenth Amendment’s guarantee of
substantive due process by causing death through deliberate or
reckless indifference to life in a high-speed automobile chase aimed
at apprehending a suspected offender.” Id. at 836, 118 S. Ct. at
1711. 11 Justice Souter described a tort claim in substantive due pro-
cess clothing. Nothing in the complaint presented the issue of
whether a plaintiff suing an executive for violating a fundamental
liberty interest incorporated into the Fourteenth Amendment
must allege and prove as a threshold matter that the executive’s be-
havior was beyond the executive power and, in the words of foot-
note 8, “so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.” Id. at 847 n.8, 118 S. Ct. at
1717 n.8. Since the issue was not presented, it could not have been

11
Restated by Justice Souter, the issue was whether “Smith’s actions in causing
Lewis’s death were an abuse of executive power so clearly unjustified by any legit-
imate objective of law enforcement as to be barred by the Fourteenth Amend-
ment.” Id. at 840, 118 S. Ct. at 1713 (emphasis added).
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23-10385 TJOFLAT, J., Dissenting 29

12
decided. The issue was not presented and decided because the
facts would not support it. And as Justice Souter understood, the

12
Judge Newsom resists this conclusion by asserting that “under Judge
Tjoflat’s proposal for smoking out superfluous language,” footnote 8 is not
dicta because “Justice Scalia felt compelled to write separately” on the issue,
“the [Sacramento] majority expressly declined Justice Scalia’s invitation to by-
pass the shocks-the-conscience test in favor of Glucksberg’s historical inquiry,”
and the “‘threshold’ was integral to the Court’s reasoning.” Newsom Concur-
rence at 12 n.2. But this reasoning misses the mark—thrice over.
First, the test I discuss is not simply my “proposal.” It is grounded in
Article III of the Constitution. We are only empowered to resolve “Cases” or
“Controversies.” U.S. Const. art. III, § 2. So, the inquiry is whether the state-
ment was necessary to resolve the case, not whether it was merely significant
or noteworthy. This principle has long been recognized, with courts distin-
guishing between essential reasoning and dicta. See Loper Bright Enters. v. Rai-
mondo, 144 S. Ct. 2244, 2277 (2024) (Gorsuch, J., concurring) (noting that
courts must “be careful not to treat every ‘hasty expression . . . as a serious and
deliberate opinion” (quoting Steel v. Houghton, 1 Bl. H. 51, 53, 126 Eng. Rep.
32, 33 (C. P. 1788)); Dictum, Black’s Law Dictionary (1st ed. 1891) (defining
dictum as “an observation or remark made by a judge in pronouncing an opin-
ion upon a cause, concerning some rule, principle, or the case at bar, but not
necessarily involved in the case or essential to its determination”).
Second, dicta are not synonymous with frivolity. To be sure, the
“shocks the conscience” standard is significant. But significance does not make
a statement necessary to the decision. Here, the Court was not asked to ad-
dress the standard—nor did the facts demand it. The Court granted certiorari
on a narrow question, and this broader constitutional analysis had no place in
resolving the case. In doing so, the Court ventured beyond the facts and the
issues, offering a constitutional pronouncement without the proper occasion.
That is the very essence of dicta.
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30 TJOFLAT, J., Dissenting 23-10385

Court’s practice “is not to formulate a rule of constitutional law

broader than is required by the precise facts to which it is to be
applied.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 572, 113 S. Ct. 2217, 2247 (1993) (Souter, J., concurring in part
and concurring in the judgment) (quoting Ashwander v. TVA, 297
U.S. 288, 347, 56 S. Ct. 466, 483 (1936) (Brandeis, J., concurring)
(internal quotation marks omitted).
Elevating the shocks-the-conscience standard from dicta to
binding authority contravenes the critical safeguard of adversarial
proceedings, and as discussed more below, ignores basic principles
of separation of powers. The Majority creates a legal rule that has
not been subjected to the scrutiny of adversary proceedings and
judicial review. Law develops best when it arises from genuine
cases and controversies, where parties present arguments, chal-
lenge assumptions, and force courts to carefully consider the full
implications of a rule. “[J]udges think differently—more carefully,
more focused, more likely to think things through—when our
words bring real consequences to the parties before us.” United

Third, Justice Scalia’s response does not elevate dicta to law. His dis-
sent was focused on the case before the Court—a “police-pursuit case[].” See
Newsom Concurrence at 9. Scalia did not engage with the test in the context
of fundamental rights, and neither did the majority.
In the end, Judge Newsom exposes one of Sacramento’s core problems.
He points to a dissent to argue that a footnote is not dicta, muddying the wa-
ters by using non-binding commentary to reify dicta into precedent. This only
deepens the “crater-sized hole in responsible constitutional decisionmaking.”
See id. at 18.
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23-10385 TJOFLAT, J., Dissenting 31

States v. Burris, 912 F.3d 386, 410 (6th Cir. 2019) (en banc) (Keth-
ledge, J., concurring in the judgment). That process is absent here.
What was once mere dicta—an aside not essential to the decision—
now takes on the force of settled law that has not been fully tested.
Ordinarily we think of separation of powers in terms of leg-
islative or executive overreach. But the issue here is judicial over-
reach. The Constitution limits our role to deciding actual disputes,
not creating advisory rules, or pronouncing law outside the context
of a case. See Flast, 392 U.S. at 96, 88 S. Ct. at 1950. So, by taking
footnote 8 in Sacramento as binding law (supposing it supports what
the majority purports it does), this Court has exceeded its authority
under Article III. The Court taking a statement developed outside
of the adversarial system and applying it as “law” transcends the
judicial function from resolving disputes to creating law.
Here, “[t]he Supreme Court’s later admonition in District of
Columbia v. Heller about latching onto unargued, unbriefed, uncon-
sidered pronouncements has never rung more true: ‘It is inconceiv-
able that we would rest our interpretation . . . upon such a foot-
noted dictum in a case where the point was not at issue and was
not argued.’” Wilson v. Midland Cnty., Tex., 116 F.4th 384, 407 (5th
Cir. 2024) (en banc) (Willett, J., dissenting) (quoting District of Co-
lumbia v. Heller, 554 U.S. 570, 625 n.25, 128 S. Ct. 2783, 2816 (2008)).
III. MADDOX V. STEPHENS
The Majority also claims that Maddox v. Stephens is precedent
here. That is not so.
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32 TJOFLAT, J., Dissenting 23-10385

Maddox was an interlocutory appeal. The issue was whether,

on a motion for summary judgment, the District Court erred in
denying Babette Stephens qualified immunity from suit on Nicole
Maddox’s claim that Stephens, a Gwinnett County, Georgia, social
worker, violated her fundamental liberty interest in the care, cus-
tody, and management of her minor child, J.O.. 727 F.3d at 1113.
Maddox alleged that Stephens disregarded her liberty interest “in
preparing and implementing a safety plan that allegedly prohibited
[her] from removing the child from the paternal grandmother’s
care.” Id.
A. Case Overview
In determining whether Stephens was entitled to summary
judgment on her qualified immunity defense, the District Court
had two options. It could decide whether the facts underlying Mad-
dox’s claim, taken in the light most favorable to Maddox, estab-
lished that Stephens’s conduct violated Maddox’s fundamental lib-
erty interest, or it could avoid that decision and decide whether the
law clearly established that Stephens’s conduct was unlawful in the
circumstances of the case. The Court exercised the second option
but found “that it could not conclude at the summary judgment
stage that Stephens was entitled to qualified immunity.” Id. at 1118.
In deciding whether the District Court erred in denying Ste-
phens qualified immunity, this Court had the same options the Dis-
trict Court had. Id. First, it could decide whether the facts Maddox
had presented on summary judgment showed that Stephens
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23-10385 TJOFLAT, J., Dissenting 33

13
violated her fundamental liberty interest as alleged. Or second, it
could decide whether the law clearly established that Stephens’s
conduct was unlawful. Like the District Court, this Court chose the
second option. Id. at 1127 n.19 (citing Pearson v. Callahan, 555 U.S.
14
223, 236, 129 S. Ct. 808, 818 (2009)).
The Court began its qualified immunity analysis by observ-
ing that it “is undisputed . . . that Maddox has a liberty interest in
the care, custody, and management of J.O. Maddox argues that Ste-
phens violated this liberty interest, and therefore that she has sufficiently
asserted a substantive due process violation.” Id. at 1119 (emphasis
added).
As the following discussion indicates, it is debatable whether
the Court viewed Maddox as alleging that Stephens violated a lib-
erty interest protected by the Fourteenth Amendment, in the care
and custody of her minor child, J.O. 15

13
If Stephens had argued that the summary judgment record revealed an ab-
sence of any evidence to support Maddox’s claim, this Court would have af-
firmed the District Court’s grant of qualified immunity (to Stephens) on the
ground that Maddox failed to make out her claim.
14
Since the record established that Stephens was exercising her discretionary
authority at the time of the alleged violation, it became Maddox’s burden to
show that Stephens was not entitled to qualified immunity. See Holloman ex
rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004).
15
Maddox did not assert a substantive due process claim under the Rochin
standard. Rather, she asserted under the Palko standard a claim that Stephens
violated her liberty interest in the care and custody of her child. See Plaintiff’s
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34 TJOFLAT, J., Dissenting 23-10385

The Court then went one step further and turned to what
Maddox had to prove to establish the substantive due process vio-
lation. Maddox had to prove what she did not allege—that Ste-
phens’s conduct in preparing and implementing the safety plan was
“arbitrary or conscience shocking in a constitutional sense.” Mad-
dox, 727 F.3d at 1119 (quoting Waddell v. Hendry Cnty. Sheriff’s Off.,
16
329 F.3d 1300, 1305 (11th Cir. 2003) (quotation marks omitted)).
Indeed, Stephens’s actions “must be characterized as arbitrary, or
conscience shocking, in a constitutional sense.” Maddox, 727 F.3d
at 1125–26 (quoting Collins v. City of Harker Heights, 503 U.S. 115,
128, 112 S. Ct. 1061, 1070 (1992) (emphasis added) (internal quota-
tion marks omitted)).
In eventually deciding that Stephens was entitled to quali-
fied immunity because Maddox had not shown that the lawlessness
of Stephens’s conduct was clearly established, the Court returned
to what Maddox had to prove to prevail on her claim. It assumed
that Maddox had satisfied the “high bar” and that Maddox had thus
introduced evidence on summary judgment sufficient to establish
that Stephens’s alleged actions were arbitrary, or conscience

Response in Opposition to Department of Human Services’ Motion for Sum-

mary Judgment 15, Maddox v. Georgia Dep’t Human Serv’s, No. 1:10-cv-02742-
AT (N.D. Ga. Nov. 17, 2011), ECF No. 98.
16
The Court emphasized that “only the most egregious official conduct can be
said to be arbitrary in the constitutional sense.” Maddox, 727 F.3d at 1119
(quoting Sacramento, 523 U.S. at 846, 118 S. Ct. at 1716) (internal quotation
marks omitted)).
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23-10385 TJOFLAT, J., Dissenting 35

shocking, in a constitutional sense. See Maddox, 727 F.3d at 1119.

The Court indulged that assumption several times:
[A]ssuming arguendo that Stephens violated Maddox’s
substantive due process rights, Stephens is entitled to
qualified immunity because the law was not clearly es-
tablished that Stephens’ actions were so conscience
shocking as to violate Maddox’s liberty interest in the
care, custody, and management of J.O.
Id. at 1121.
[F]or purposes of addressing Maddox’s substantive due
process claim, we can assume arguendo that Stephens vi-
olated Maddox’s procedural due process rights. We nev-
ertheless hold that Stephens is entitled to qualified im-
munity because she did not violate any clearly estab-
lished substantive due process rights of which a reason-
able state official in Stephens’ shoes would have known
during the pertinent time period.
Id. at 1125.
[E]ven if we assume arguendo, although we expressly do
not decide, that Stephens’ actions violated Maddox’s
procedural due process rights, we cannot conclude that
the law was clearly established at the time of the rele-
vant conduct that Stephens’ actions were conscience
shocking, and thus we cannot conclude that there has
been a violation of clearly established substantive due
process law.
Id. at 1126–27.
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36 TJOFLAT, J., Dissenting 23-10385

[W]e must conclude that it would not be clear to a rea-

sonable social worker that her conduct violated Mad-
dox’s substantive due process rights; stated another way,
a reasonable social worker would not have been on no-
tice that her behavior was “conscience shocking” or “ar-
bitrary.”
Id. at 1126.
Although Maddox cite[d] Eleventh Circuit and Georgia
Supreme Court cases for the proposition that procedural
requirements should be followed when the State takes
custody of the child, she ha[d] not cited any case that
would make it clear to a reasonable social worker at the
time that her actions were arbitrary or conscience shock-
ing.
Id.
My take from the Court’s quoted statements is this: the
Court assumed that Maddox alleged that Stephens’s behavior was
conscience-shocking. Then, based on that assumption, it held that
Maddox failed to show that it was clearly established that the be-
havior was unlawful.
The Court assumed that Stephens’s behavior was con-
science-shocking even though Maddox never labeled Stephens’s
behavior—in preparing and implementing a safety plan that pro-
hibited Maddox from removing the child from the paternal grand-
mother’s care—as conscience shocking. Instead, Maddox labeled
the behavior as a violation of her fundamental liberty interest, an
interest protected by the Fourteenth Amendment.
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23-10385 TJOFLAT, J., Dissenting 37

In short, this Court did not hold that Stephens’s conduct “in
preparing and implementing a safety plan that allegedly prohibited
Maddox from removing the child from the paternal grandmother’s
care” violated Maddox’s liberty interest. Id. at 1113. It also did not
hold that Sacramento required Maddox to allege that Stephens’s
conduct was “an abuse of executive power so clearly unjustified by
any legitimate objective of [that power] as to be barred by the Four-
teenth Amendment.” Sacramento, 523 U.S. at 840, 118 S. Ct. at 1713.
What it did hold—indeed, all that it held—was that it was not
clearly established that Stephens’s conduct in preparing and imple-
menting the safety plan was conscience shocking. Maddox, 727 F.3d
at 1127. 17

17 Following the issuance of our mandate, Maddox moved the District Court
to dismiss her 42 U.S.C. § 1983 claims and remand the case to the state court.
The District Court described Maddox’s motion in footnote 2 of its September
6, 2013, order granting the motion:
Plaintiffs state that despite their disagreement with the Eleventh
Circuit’s application of the law to the facts of this case, they are
bound to accept the Eleventh Circuit’s opinion as the law of the
case. Therefore, “Plaintiffs do not wish to proceed to trial on the
[Section 1983] conspiracy claim with the belief that if the Plaintiffs
obtain a favorable verdict, the 11th Circuit Court of Appeals
would once again reverse.” (Doc. 132 at 5).
Maddox v. Georgia Dep’t of Hum. Services, No. 1:10-cv-02742-AT, 2013 WL
9348224, at *1 n.1 (N.D. Ga. Sept. 23, 2013).
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38 TJOFLAT, J., Dissenting 23-10385

B. Assuming Maddox Is the Law

In this section, I describe the litigation of a fundamental
rights claim post-Maddox, which, according to the Court, “illus-
trates the Sacramento framework in practice” and has become Elev-
18
enth Circuit precedent. Maj. Op. at 16.
Posit a complaint like the one in Littlejohn with one excep-
tion. Along with asserting claims against the four executives, the
complaint properly presents a § 1983 claim against the Leon
County School Board based on the Monell doctrine.19 That is, the

18
I, of course, disagree that Maddox is precedent here. Additionally, and as
Judge Newsom acknowledges in his concurrence, one of our first substantive
due process styled cases post-Sacramento maintained Salerno’s disjunctive fram-
ing of “shocks the conscience or interfer[ing] with rights implicit in the con-
cept of ordered liberty.” Newsom Concurrence at 6; see Dacosta v. Nwachukwa,
304 F.3d 1045, 1048 (11th Cir. 2002). Maddox and Dacosta are not precedential
here because both cases involve common law torts dressed up in substantive
due process clothing, and both revolve around qualified immunity rather than
the standard for substantive due process. See discussion supra. That said, if the
majority holds that Maddox is precedent, it has not wrestled with why that
holding would not defy our prior panel precedent rule.
19
In Monell v. Dep’t Soc. Serv’s, 436 U.S. 658, 98 S. Ct. 2018 (1978), the Supreme
Court held that local governments, including school boards, are “persons”
subject to liability under 42 U.S.C. § 1983 and thus can be held liable for con-
stitutional violations that stem from their official policies or customs. Id. at
690–91, 98 S. Ct. at 2036. The School Board is not an “executive,” however, as
that term is used in Sacramento and Maddox. In Sacramento, an executive is one
who carries out the objectives of the state’s police power as expressed by a
local governmental entity. The police power was law enforcement. The exec-
utive was Deputy Smith. The claim was that his conduct was not a legitimate
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23-10385 TJOFLAT, J., Dissenting 39

executives were performing their job-related functions while im-

plementing the School Board’s policy as reflected in the Guide.20
To prevail on their § 1983 claims against the executives,
Maddox requires the Littlejohns to allege and prove as a threshold
substantive due process claim that the executives’ conduct in vio-
lating their parental rights was “arbitrary or conscience shocking in
a constitutional sense.” 727 F.3d at 1119 (quoting Waddell v. Hendry
Cnty. Sheriff’s Off., 329 F.3d 1300, 1305 (11th Cir. 2003) (quotation
marks omitted)). Unless the Littlejohns prove that threshold claim,
they will be unable to recover damages against the executives for
violating their parental rights. But they will be able to proceed
against the School Board based on the executives’ violation of their
parental rights.

pursuit of a law enforcement objective. In Maddox, the police power con-

cerned the welfare of families and children and was exercised by the Georgia
Department of Human Services Division of Family and Children Services
(“DFCS”). The executives were social workers like Stephens. The claim was
that Stephens violated Maddox’s fundamental parental rights. The claim was
not that Stephens exceeded the legitimate objective of DFCS police power.
20
That the executives violated the Littlejohns’ parental rights while perform-
ing “a legitimate job-related function (that is, pursuing a job-related goal),”
does not alter the fact that the executives were acting within their discretion-
ary authority. Holloman, 370 F.3d at 1265–66.
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40 TJOFLAT, J., Dissenting 23-10385

21
Under Fed. R. Civ. P. 11, the Littlejohns’ lawyer cannot
certify a complaint alleging that the executives’ conduct in violat-
ing the Littlejohns’ parental rights was “arbitrary or conscience
shocking in a constitutional sense” without more. The lawyer can-
not do so because the executives were simply performing their of-
ficial duties.
Rule 11(b)(2) allows an attorney to present a “nonfrivolous
argument for . . . reversing existing law or for establishing new
law.” The Littlejohns’ lawyer concludes that to obtain the reversal
of Maddox as precedent, Rule 11(b)(2) would permit him to file a
complaint alleging that the executives’ conduct in violating the Lit-
tlejohns’ parental rights was “arbitrary or conscience shocking in a
constitutional sense.” So the lawyer drafts a complaint seeking
damages against the executives for violating the Littlejohns’ paren-
tal rights by engaging in conduct that was conscience-shocking and

21
Rule 11(b)(3) states that
[b]y presenting [a complaint] to the court, an attorney . . .
certifies that to the best of the person’s knowledge, information,
and belief, formed after an inquiry reasonable under the circum-
stances:
....
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after
a reasonable opportunity for further investigation or discovery.
Fed. R. Civ. P. 11(b)(3).
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23-10385 TJOFLAT, J., Dissenting 41

damages against the School Board based on the executives’ con-

duct in violating the Littlejohns’ parental rights.
The District Court dismisses the Littlejohns’ § 1983 claim
against the executives because the complaint’s factual allegations
describing the executives’ violation of the Littlejohns’ parental
rights show that the executives’ actions were not arbitrary or con-
science-shocking in a constitutional sense. Instead, the factual alle-
gations show that the executives violated the Littlejohns’ parental
rights while doing their jobs. The Court then duly convenes a jury
trial on the Littlejohns’ claim against the School Board based on the
executives’ violation of their parental rights. The Littlejohns pre-
vail. The jury finds that the executives violated their parental rights
and did so in carrying out School Board policy. The jury assesses
damages against the School Board, and the Court enters judgment
accordingly.
Assuming that Maddox is Eleventh Circuit precedent in
§ 1983 cases in which the plaintiff seeks the vindication of a right
protected by the Fourteenth Amendment, these will be the conse-
quences:
• If the executive’s violation of the plaintiff’s right is pursu-
ant to policy of the entity governing the executive’s au-
thority to act, the plaintiff might be compensated by the
entity under Monell. The plaintiff will not be compen-
sated by the executive, though, because the plaintiff’s
lawyer will be unable to allege and prove that the execu-
tive’s conduct (in violating the plaintiff’s right)
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42 TJOFLAT, J., Dissenting 23-10385

constituted under Sacramento an abuse of executive

power so clearly unjustified by any legitimate objective
of the exercise of that power as to be barred by the Four-
teenth Amendment. Whether the executive will be de-
terred from violating a plaintiff’s protected right will de-
pend on the ability of the entity responsible for the exec-
utive’s conduct to discipline the executive. In other
words, Congress’s intent in enacting § 1983 becomes su-
perfluous as the remedy against the person who did the
constitutional violation is not imposed under the statute,
but left to the discretion of some other person.
• If the executive’s violation of the plaintiff’s protected
right is not pursuant to the policy of the entity responsi-
ble for the executive’s conduct, the plaintiff’s right will
not be vindicated at all. That is, the plaintiff will be una-
ble to pursue the entity under Monell and the plaintiff’s
claim against the executive will fail because of the plain-
tiff’s inability to prove that the executive’s conduct was
conscience shocking.
IV. SEPARATION OF POWERS
If Sacramento holds that plaintiffs cannot be heard on their
fundamental rights claims for damages under § 1983 unless they
allege and prove that the executive action underpinning their
claims shocks the contemporary conscience, the Court ran rough-
shod over the separation of powers doctrine.
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23-10385 TJOFLAT, J., Dissenting 43

A. The Value of Incorporated Rights

The Supreme Court acknowledges that certain liberty inter-
ests are fundamental to the American scheme of justice by incor-
porating them into the Fourteenth Amendment. They were incor-
porated like the Bill of Rights (with exceptions) because they were
deemed “‘fundamental to our scheme of ordered liberty,’ or
‘deeply rooted in this Nation’s history and tradition.’” Timbs, 556
U.S. at 150, 139 S. Ct. at 687 (quoting McDonald, 561 U.S. at 767, 130
S. Ct. at 3036). These interests include the parental rights the Lit-
tlejohns seek to vindicate.
Congress enacted § 1983 as part of the Civil Rights Act of
1871. Its “purpose . . . was to interpose the federal courts between
the States and the people, as guardians of the people’s federal
rights—to protect the people from unconstitutional action under
color of state law, ‘whether that action be executive, legislative, or
judicial.’” Mitchum v. Foster, 407 U.S. 225, 242, 92 S. Ct. 2151, 2162
(1972) (quoting Ex parte Virginia, 100 U.S. 339, 346 (1879)). The stat-
ute was “[w]ritten in sweeping terms against a backdrop of horrific
violence, terror, and subjugation.” Wilson, 116 F.4th at 409 (Willett,
J., dissenting). So, it “was meant to open courthouse doors, not bolt
them shut.” Id.
The shocks-the-conscience threshold claim a plaintiff must
allege and prove to be heard on his claims that executive conduct
violated rights incorporated into the Fourteenth Amendment dis-
serves Congress’s purpose in enacting § 1983. Indeed, the threshold
requirement all but eliminates § 1983 as a remedy to compensate
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44 TJOFLAT, J., Dissenting 23-10385

citizens whose fundamental rights have been violated by state and

local executive action. And in doing so, the requirement waters
down the constitutional significance of the citizen’s rights.
But Sacramento harbored no such intention. When Sacra-
mento was decided, the Supreme Court had rejected the idea that
the incorporated rights had less value when made applicable to
state and local government. In an increasing number of cases,
“[t]he Court . . . has rejected the notion that the Fourteenth
Amendment applies to the States only a watered-down, subjective
version of the individual guarantees of the Bill of Rights.” Malloy v.
Hogan, 378 U.S. 1, 10–11, 84 S. Ct. 1489, 1495 (1964) (quoting Ohio
ex rel. Eaton v. Price, 364 U.S. 263, 275, 80 S. Ct. 1463, 1470 (1960)
(opinion of Brennan, J.) (internal quotation marks omitted)).
Before Sacramento, the incorporated rights of citizens suing
executives of the United States Government in federal court for
damages were not watered down. 22 If a citizen claimed that a

22
Benton v. Maryland held that “[o]nce it is decided that a particular Bill of
Rights guarantee is ‘fundamental to the American scheme of justice,’ the
same constitutional standards apply against both the State and Federal Gov-
ernments.” 395 U.S. 784, 795, 89 S. Ct. 2056, 2063 (1969) (quoting Duncan v.
Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 1447 (1968)). At the time, the Court
thought it could imply causes of actions to remedy constitution violations. In
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999 (1971),
the Supreme Court implied a cause of action for damages under the Fourth
Amendment against federal officials for unreasonable searches and seizures.
Id. at 389, 91 S. Ct. at 2001. And it had implied causes of action for damages
under the Fifth Amendment Due Process Clause against a Congressman for
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23-10385 TJOFLAT, J., Dissenting 45

federal executive violated an incorporated right, the citizen would

be heard on the merits of his claim. After affording citizens the
right to be heard in cases brought against federal executives, the
Court would not, and did not, deprive citizens of the right to be
heard in cases brought against state or local governmental execu-
tives for the violation of fundamental rights. To say that the Court
would—and did—strains credulity.
For this reason alone, the Littlejohns are entitled to a day in
court on the merits of their claims that the defendant executives
violated their parental rights.

gender discrimination, Davis v. Passman, 442 U.S. 228, 248–49, 99 S. Ct. 2264,
2279 (1979), and under the Eighth Amendment Cruel and Unusual Punish-
ments Clause for failure to provide adequate medical treatment, Carlson v.
Green, 446 U.S. 14, 19, 100 S. Ct. 1468, 1472 (1980). Litigants sought the Court’s
creation of similar implied causes of action in 1983, 1987, 1988, and 1994. Eg-
bert v. Boule, 596 U.S. 482, 486, 142 S. Ct. 1793, 1799–1800 (2022). To be sure,
many of the claims cited in Egbert consistently failed as the Court became
more reluctant to transcend the legislative function and imply causes of action
(which supports that the Court would not impose a shocks-the-conscience
standard today).
Evaluating the vindication of fundamental rights at the time of Benton
also supports the ridiculousness of a shocks-the-conscience standard. The
Court thought it could imply causes of action to federal officials, so it makes
no sense that it would later go on to limit that enforcement against state offi-
cials by imposing a shocks-the-conscience requirement.
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46 TJOFLAT, J., Dissenting 23-10385

B. Amending § 1983
“The Framers of the Federal Constitution . . . viewed the
principle of separation of powers as the absolutely central guaran-
tee of a just Government.” Morrison v. Olson, 487 U.S. 654, 697, 108
S. Ct. 2597, 2622 (1988) (Scalia, J., dissenting). The doctrine ensures
that each branch of government—the Legislative, Executive, and
Judicial—operates within its own distinct area. This prevents the
concentration of power, which the Framers rightly feared to im-
peril liberty. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
635, 72 S. Ct. 863, 870 (1952) ( Jackson, J., concurring) (explaining
that “the Constitution diffuses power the better to secure liberty”).
So, the Legislature’s role is to make law. See Patchak v. Zinke, 583
U.S. 244, 250, 138 S. Ct. 897, 905 (2018) (“[T]he legislative power is
the power to make law.”). And the Judiciary’s role is to interpret
and apply the law. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177
(1803).
Let us recap with what the Legislature enacted in § 1983:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or im-
munities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress.
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23-10385 TJOFLAT, J., Dissenting 47

42 U.S.C. § 1983 (emphasis added).

Today’s holding is barred by the separation of powers doc-
trine. It either amends § 1983 or puts a gloss on the Littlejohns’
parental rights that waters down their constitutional force. If the
holding does the latter, it is obviously erroneous. It requires no sub-
tle analysis to demonstrate that.
Only Congress has the power to amend or otherwise alter
§ 1983. The Supreme Court’s decision in Egbert makes that clear.
The issue there was whether the Court should adhere to the hold-
ing in Bivens and imply a cause of action for damages under the
First and Fourteenth Amendments. Egbert, 596 U.S. at 490, 142 S.
Ct. at 1802. The Court held that the task of providing a federal rem-
edy, such as § 1983, for a federal executive’s violation of a constitu-
tional right belonged to Congress: “whether a given remedy is ad-
equate is a legislative determination that must be left to Congress,
not the federal courts.” Id. at 498, 142 S. Ct. at 1807.
The Supreme Court’s approach to separation of powers is-
sues is hardly the same as it was when the Court decided Bivens and,
years later, Sacramento. Since Bivens and its progeny, the Court has
not implied additional causes of action for the violation of Consti-
tutional rights. “Now long past the heady days in which th[e] Court
assumed common-law powers to create causes of action,” it “ha[s]
come to appreciate more fully the tension between judicially cre-
ated causes of action and the Constitution’s separation of legisla-
tive and judicial power.” Id. at 491, 142 S. Ct. at 1802 (citations and
internal quotation marks omitted). This reasoning is just as
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48 TJOFLAT, J., Dissenting 23-10385

applicable to limiting causes of actions as creating them. “Just as a

court cannot apply its independent policy judgment to recognize a
cause of action that Congress has denied, it cannot limit a cause of
action that Congress has created merely because ‘prudence’ dic-
tates.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S.
118, 128, 134 S. Ct. 1377, 1388 (2014) (citation omitted). Yet, the
“shocks-the-conscience” test does just that. Posit how § 1983 would
change if this test was in it:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State . . . sub-
jects, or causes to be subjected, any citizen of the United
States . . . to the deprivation of any right, privilege, or
immunity secured by the Constitution and laws, shall be
liable to the party injured in an action at redress [if that
person’s actions also shocked the contemporary con-
science].
I would say that today the Supreme Court would not enter-
tain an argument that § 1983 should be amended judicially to cut
down on fundamental rights cases. The separation of powers doc-
trine precludes this Court from applying the shock-the-conscience
requirement to bar the Littlejohns’ parental rights claim here.
V. CONCLUSION
Judge Newsom may be correct—the “substantive due pro-
cess” cases that have snowballed since Sacramento are a “dumpster
fire.” Newsom Concurrence at 15. But that is no excuse for today’s
result. As Justices Alito and Thomas recently warned in a factually
similar case, “[t]his case presents a question of great and growing
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23-10385 TJOFLAT, J., Dissenting 49

importance.” Parents Protecting Our Children v. Eau Claire Area Sch.

Dist., 145 S. Ct. 14, 14 (2024) (Alito, J., dissenting from denial of
certiorari). That same question is before us now: Does the Consti-
tution still protect parents’ fundamental right to direct the upbring-
ing of their children when government actors intrude without their
knowledge or consent?
The Majority says it does not. It reaches this conclusion by
applying an illogical, unauthorized, and atextual “shocks-the-con-
science” standard that denies the Littlejohns the ability to vindicate
their fundamental right to raise their child. Binding precedent in
23
Arnold requires a different approach. The question is whether the
Littlejohns alleged a violation of a fundamental right, not whether
the conduct also “shocked the conscience.” And if Sacramento
changed the law as the Majority purports it did, the vindication of
fundamental rights under that “framework” is an issue of first im-
pression in our Circuit.
Today’s decision ignores bedrock separation of powers prin-
ciples, waters down fundamental rights, and flies in the face of our

23
“While an intervening decision of the Supreme Court can overrule the deci-
sion of a prior panel of our court, the Supreme Court decision must be clearly
on point.” Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292
(11th Cir. 2003). Because Sacramento is not “clearly on point” for all the reasons
stated in this dissent, the Majority has violated our prior panel precedent rule.
And even if Sacramento was on point, Dacosta would be our first case post-Sac-
ramento. See Dacosta, 304 F.3d at 1048 (maintaining Salerno’s disjunctive of
“shocks the conscience or interfer[ing] with rights implicit in the concept of
ordered liberty” (emphasis added)).
USCA11 Case: 23-10385 Document: 112-1 Date Filed: 03/12/2025 Page: 169 of 169

50 TJOFLAT, J., Dissenting 23-10385

prior panel precedent rule. It is as wrong as it is ominous for the

future of fundamental rights in the Eleventh Circuit.
I respectfully dissent.