Advisory Opinions What Are the Liberties Not in the Constitution?
24 snips
Mar 10, 2026 
Dan Epps, law professor and co-host of Divided Argument, offers doctrinal analysis. Will Baude, legal scholar and co-host of Divided Argument, breaks down procedural puzzles. Andy Lipka, producer and interlocutor from America’s Constitution, frames the debate. Akhil Amar, constitutional historian, supplies historical perspective. They discuss substantive due process, Mirabelli v. Bonta, the emergency/interim docket, and tensions among recent Supreme Court rulings.
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Substantive Due Process Reappears In Mirabelli
- Substantive due process resurfaced in Mirabelli v. Bonta despite expectations it was disfavored by conservatives.
- The per curiam invoked both free exercise precedents and substantive due process language to block California's parental-notification restriction temporarily.
Parent Rights Versus Presumed Harm
- The core legal issue was a California law barring teachers from telling parents if minors were socially transitioning at school.
- David French argues parents' constitutional right to direct upbringing can't be preemptively nullified by a presumption they'd abuse the child if informed.
Constitutional Roots For Unenumerated Rights
- Akhil Amar explains substantive due process as a method for finding unenumerated rights via the Constitution's textual hints like the Ninth Amendment and the 14th Amendment's privileges or immunities.
- He emphasizes constitutional provisions acknowledge unenumerated rights and the challenge is a faithful method to discover them.
