Amendments: Due Process and the Right to Privacy - AP US Government and Politics

SECTION 1

Historical Context & Motivation

The American constitutional tradition has long grappled with the tension between governmental authority and individual liberty, a tension that crystallized around the concept of due process of law. Originating in the Magna Carta's guarantee that no free man would be deprived of liberty except by the "law of the land," due process migrated into American constitutional law through the Fifth Amendment's restriction on the federal government and, after the Civil War, the Fourteenth Amendment's restriction on the states. Over more than two centuries, courts have interpreted these clauses not merely as procedural safeguards—requiring fair hearings and adequate notice—but also as substantive guarantees protecting fundamental rights from government interference, even when proper procedures are followed. This evolution laid the foundation for one of the most consequential and contested doctrines in American constitutional law: the judicially recognized right to privacy.

1791 • Bill of Rights Ratified

The Fifth Amendment establishes that no person shall be "deprived of life, liberty, or property, without due process of law," constraining the federal government.

1868 • Fourteenth Amendment Ratified

The Due Process Clause and Equal Protection Clause are extended to state governments, providing the textual basis for incorporation of the Bill of Rights against the states.

1965 • Griswold v. Connecticut

The Supreme Court strikes down a state ban on contraceptive use by married couples, recognizing a constitutional right to privacy rooted in the "penumbras" and "emanations" of several amendments.

1973 • Roe v. Wade

The Court locates the right to privacy within the Fourteenth Amendment's concept of personal liberty, extending it to a woman's decision regarding abortion, subject to state interest balancing.

2022 • Dobbs v. Jackson Women's Health Organization

The Court overturns Roe, holding that the Constitution does not confer a right to abortion and returning regulatory authority to the states, reigniting debate over substantive due process.

This historical arc raises a central question that continues to animate American politics and jurisprudence: To what extent does the Constitution protect rights that are not explicitly enumerated in its text? The answer depends heavily on how one interprets the Due Process Clauses—whether as purely procedural protections or as substantive safeguards of fundamental liberties—and that interpretive choice has profound implications for issues ranging from reproductive rights to marriage equality to the right to die.

SECTION 2

Core Principles & Definitions

Understanding how the Due Process Clauses generate privacy protections requires distinguishing several foundational concepts that the AP exam frequently tests. The two clauses—one in the Fifth Amendment binding the federal government and one in the Fourteenth Amendment binding the states—share identical language but have developed distinct doctrinal trajectories. Courts have divided due process analysis into two branches: procedural due process, which asks whether the government followed fair procedures before depriving someone of life, liberty, or property, and substantive due process, which asks whether certain rights are so fundamental that no procedure—no matter how fair—can justify the government infringing upon them. The right to privacy emerged primarily from the substantive branch, though it draws support from multiple constitutional provisions.

Procedural Due Process

Requires the government to provide fair procedures—such as notice, a hearing, and an impartial tribunal—before depriving an individual of life, liberty, or property. Focuses on how the government acts.

Substantive Due Process

Holds that certain fundamental rights are implicit in the concept of ordered liberty and cannot be infringed regardless of procedure. Courts apply strict scrutiny when legislation burdens these rights. Focuses on what the government may do.

Selective Incorporation

The doctrine by which the Supreme Court has applied most Bill of Rights protections to state governments through the Fourteenth Amendment's Due Process Clause, case by case. This is the mechanism that made the Bill of Rights enforceable against states.

Right to Privacy

An unenumerated right inferred from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. Protects intimate personal decisions—marriage, contraception, family relationships—from unwarranted government intrusion.

Strict Scrutiny

The highest standard of judicial review, applied when a law burdens a fundamental right. The government must show the law serves a compelling interest and is narrowly tailored to achieve that interest using the least restrictive means.

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KEY TAKEAWAY

Think of the Constitution as an architectural blueprint for government. The explicit rooms—free speech, the right to bear arms—are clearly drawn. But the blueprint also implies hallways and structural supports: the right to privacy functions like one of those structural elements—never labeled on the plan but necessary to connect and support the explicitly drawn rooms. Justice Douglas called these connections "penumbras," zones of implied protection that radiate from the enumerated rights and create a private sphere into which the government cannot intrude without compelling justification.

SECTION 3

Visual Explanation: Constitutional Sources of the Right to Privacy

This diagram illustrates Justice Douglas's "penumbras" theory from Griswold v. Connecticut (1965). The right to privacy (center) is not explicitly stated in any single amendment but is inferred from the overlapping protections of six amendments. The First protects associational privacy, the Third protects the home, the Fourth guards against unreasonable searches, the Fifth shields self-incrimination, the Ninth reserves unenumerated rights, and the Fourteenth's liberty clause extends these protections against state action.

The diagram above captures a critical insight for the AP exam: the right to privacy does not rest on a single textual provision. Instead, justices have relied on different constitutional hooks depending on the case. Justice Douglas in Griswold emphasized the penumbras of the First, Third, Fourth, Fifth, and Ninth Amendments; Justice Goldberg's concurrence leaned heavily on the Ninth Amendment's reservation of unenumerated rights; and Justice Harlan's concurrence grounded privacy in the Fourteenth Amendment's concept of ordered liberty. Later decisions, including Roe v. Wade (1973), shifted the doctrinal anchor squarely to the Fourteenth Amendment's Due Process Clause, treating privacy as a component of the "liberty" that no state may abridge without due process. Understanding which textual source a given opinion relies upon is essential for SCOTUS comparison FRQs.

SECTION 4

How It Works: Levels of Scrutiny and the Privacy Framework

When the government enacts a law that impinges on the right to privacy or another fundamental right protected under substantive due process, courts do not simply ask whether the law seems reasonable. Instead, they apply a structured analytical framework—levels of judicial scrutiny—that determines how much justification the government must provide. The level of scrutiny a court applies often determines the outcome: laws reviewed under strict scrutiny are almost always struck down, while those reviewed under rational basis review are almost always upheld. This framework is the mechanism through which abstract due process rights become concrete limits on legislation.

The Three Tiers of Judicial Scrutiny

Level of Scrutiny	Government Must Show	When Applied	Typical Outcome
Strict Scrutiny	Compelling governmental interest; law is narrowly tailored (least restrictive means)	Fundamental rights (privacy, speech, religion, voting); suspect classifications (race, national origin)	Law usually struck down
Intermediate Scrutiny	Important governmental interest; law is substantially related to that interest	Gender-based classifications; content-neutral speech regulations	Outcome varies
Rational Basis Review	Legitimate governmental interest; law is rationally related to that interest	Economic regulations; non-fundamental rights; non-suspect classifications	Law usually upheld

The three tiers of judicial scrutiny used by federal courts when reviewing laws challenged under the Due Process and Equal Protection Clauses

In the privacy context, the Court's approach in Roe v. Wade illustrates how scrutiny analysis works in practice. The Court identified the right to terminate a pregnancy as falling within the fundamental right to privacy, triggering strict scrutiny of state regulations. However, the Court also recognized the state's compelling interests in maternal health and potential life, which grew stronger as pregnancy progressed. This produced the trimester framework: during the first trimester, the state's interest was not yet compelling enough to override the woman's privacy right; during the second, it could regulate to protect maternal health; during the third, after viability, it could prohibit abortion entirely except to save the mother's life. The later Planned Parenthood v. Casey (1992) replaced the trimester framework with the undue burden test, asking whether a regulation placed a "substantial obstacle" in the path of a woman seeking a previability abortion—a standard that functioned somewhere between strict scrutiny and rational basis review.

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AP EXAM TIP

FRQs frequently ask you to identify which level of scrutiny applies and explain why. Remember the formula: identify the right at stake, determine whether it is "fundamental" (triggering strict scrutiny) or not (rational basis), and then evaluate whether the government's justification meets the corresponding burden. The Dobbs decision's rejection of abortion as a fundamental right effectively shifted the standard to rational basis review, which is why state abortion regulations after Dobbs face a much lower bar.

SECTION 5

Landmark Cases and Doctrinal Development

The right to privacy has been defined, expanded, and more recently curtailed through a series of landmark Supreme Court decisions that every AP Government student must know. These cases do not exist in isolation; each builds upon, modifies, or repudiates prior precedent, and understanding their doctrinal relationships is essential for the SCOTUS comparison FRQ. The following diagram traces the evolution of privacy doctrine from its explicit recognition in 1965 through the major turning points.

The central timeline traces the doctrinal arc from recognition (Griswold) through expansion (Roe, Lawrence, Obergefell) to contraction (Dobbs). Note how each case cites a slightly different constitutional basis, reflecting ongoing disagreement over the textual foundation for the right to privacy.

Case	Constitutional Basis	Privacy Right Protected	Standard of Review
Griswold v. Connecticut (1965)	Penumbras of 1st, 3rd, 4th, 5th, 9th Amendments	Marital use of contraceptives	Strict scrutiny (implied)
Roe v. Wade (1973)	14th Amendment Due Process (liberty)	Decision to terminate pregnancy	Strict scrutiny / trimester framework
Lawrence v. Texas (2003)	14th Amendment Due Process (liberty)	Consensual intimate conduct	Unclear; majority avoided naming a tier
Obergefell v. Hodges (2015)	14th Amendment Due Process + Equal Protection	Right to marry (same-sex couples)	Fundamental right → strict scrutiny
Dobbs v. Jackson (2022)	Rejected substantive due process for abortion	Abortion no longer a constitutionally protected right	Rational basis (returned to states)

Comparison of landmark privacy cases showing the shifting constitutional bases and standards of review

SECTION 6

Worked Example: Analyzing a SCOTUS Comparison FRQ

The SCOTUS comparison FRQ asks you to compare a non-required case to a required case based on a shared constitutional principle. Below is a worked example using a prompt similar to what you might encounter on the AP exam.

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SAMPLE PROMPT

In Griswold v. Connecticut (1965), the Supreme Court held that a Connecticut law banning contraceptive use violated the constitutional right to privacy. (A) Identify the constitutional clause that is common to both Griswold v. Connecticut and Roe v. Wade (1973). (B) Explain how the facts of Roe v. Wade led to a similar holding as Griswold v. Connecticut. (C) Describe an action that the legislative or executive branch could take to limit the impact of the Roe v. Wade decision.

Model Response

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Part A — Identify the Common Constitutional Clause

Both Griswold v. Connecticut and Roe v. Wade involve the right to privacy as protected by the Due Process Clause. While Griswold grounded this right primarily in the penumbras of the Bill of Rights, Roe located it squarely within the Fourteenth Amendment's Due Process Clause.

Common clause: The Due Process Clause (Fourteenth Amendment)
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Part B — Explain How Facts Led to a Similar Holding

In Roe, a Texas law criminalized abortion except to save the mother's life. Jane Roe challenged this law as an unconstitutional infringement on her right to privacy. Just as the Griswold Court found that the government could not intrude into the private decision of married couples regarding contraception, the Roe Court held that the constitutional right to privacy was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." In both cases, the Court determined that the state had intruded on intimate personal decisions that fell within the zone of privacy protected by the Constitution, and in both cases the state law was struck down because it could not survive heightened scrutiny.

Key link: Both cases involved state laws intruding on intimate personal decisions protected by the right to privacy.
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Part C — Describe a Legislative or Executive Action to Limit Impact

Congress could use its spending power to limit the impact of Roe by prohibiting the use of federal funds for abortion services. In fact, Congress enacted the Hyde Amendment, which barred Medicaid funding for most abortions. While the Hyde Amendment did not ban abortion outright—which Roe prohibited—it significantly limited access by ensuring that the federal government would not finance the procedure, thereby reducing its practical availability, particularly for low-income individuals.

Example: Congress passed the Hyde Amendment, using its spending power to deny federal funding for abortions.

SECTION 7

Competing Interpretive Approaches

The debate over due process and privacy rights is, at its core, a debate over constitutional interpretation. Two major interpretive traditions have shaped—and continue to shape—judicial approaches to the Due Process Clause. Understanding these traditions is critical not only for the multiple-choice section, which may present arguments from each perspective, but also for constructing a strong argument essay, which requires you to articulate and evaluate competing viewpoints.

Dimension	Living Constitutionalism	Originalism / Textualism
Core Premise	The Constitution is a living document whose broad principles must be interpreted in light of evolving societal values and circumstances.	The Constitution must be interpreted according to the original public meaning of its text at the time of ratification.
View of Substantive Due Process	Supports the idea that "liberty" in the Due Process Clause encompasses evolving fundamental rights, including privacy, even when not explicitly mentioned in the text.	Skeptical of substantive due process; argues that courts should only protect rights that are explicitly enumerated or "deeply rooted in the Nation's history and tradition."
Strengths	Adapts constitutional protections to modern realities; prevents the Constitution from becoming obsolete; has been used to expand liberty for marginalized groups.	Constrains judicial discretion; provides predictable rules; prevents unelected judges from imposing personal policy preferences as constitutional mandates.
Limitations	Critics argue it allows unelected judges to "legislate from the bench" and create rights not grounded in the constitutional text, undermining democratic self-governance.	Critics argue it freezes constitutional meaning at an 18th-century understanding, potentially excluding protections for groups whose rights were not recognized at ratification.
Key Associated Justices	Brennan, Douglas, Kennedy, Breyer	Scalia, Thomas, Alito, Gorsuch
Privacy Case Example	Obergefell v. Hodges — Marriage equality recognized as evolving understanding of fundamental liberty	Dobbs v. Jackson — Abortion not a right because it is not deeply rooted in history or tradition

Comparison of the two dominant interpretive frameworks as applied to due process and privacy

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KEY TAKEAWAY

The interpretive framework a justice adopts functions like a lens in a telescope: two astronomers looking at the same star through different lenses will describe different features. Similarly, justices reading the same Due Process Clause through a living constitutionalist lens see evolving fundamental liberties, while those using an originalist lens see only those rights recognized at the time of ratification. Neither lens is inherently "correct"—they represent different theories of judicial legitimacy—but knowing which lens a decision employs is essential for analyzing its reasoning on the AP exam.

SECTION 8

Contemporary Implications and Future Directions

The Dobbs decision did not merely overturn Roe; it raised fundamental questions about the future of substantive due process itself. Justice Thomas's concurrence explicitly called for the Court to reconsider all substantive due process precedents, including Griswold (contraception), Lawrence (intimate conduct), and Obergefell (marriage equality). While the majority opinion distinguished abortion from these other rights—arguing that abortion uniquely involves potential life—critics note that the analytical framework used in Dobbs (requiring rights to be "deeply rooted in history and tradition") could logically be applied to undermine other privacy-based precedents. This tension remains an open and politically charged question.

Issue Area	Current Precedent	Potential Vulnerability After Dobbs
Contraception	Griswold v. Connecticut (1965) / Eisenstadt v. Baird (1972)	Moderate: Both rely on substantive due process, but the right to contraception has been widely accepted for decades and may satisfy the "deeply rooted" test.
Same-Sex Intimacy	Lawrence v. Texas (2003)	Potentially higher: Sodomy was criminalized in many states historically, making it harder to satisfy a "deeply rooted" analysis.
Same-Sex Marriage	Obergefell v. Hodges (2015)	Partially protected: Congress passed the Respect for Marriage Act (2022), providing statutory protection. However, the constitutional holding rests on substantive due process.
Digital Privacy	Carpenter v. United States (2018)	Different basis: Grounded in the Fourth Amendment's prohibition on unreasonable searches, not substantive due process. Less directly affected by Dobbs reasoning.

Privacy-related precedents and their potential vulnerability to reconsideration under the Dobbs framework

The contemporary landscape of privacy rights thus presents a paradox: even as Dobbs narrowed substantive due process doctrine, concerns about digital privacy—government surveillance, data collection by private corporations, facial recognition technology—have never been greater. These issues may prompt future constitutional development through different pathways, including the Fourth Amendment, statutory law, and state constitutions. The AP exam increasingly expects students to connect foundational precedents to emerging policy debates, making this forward-looking perspective essential.

SECTION 9

Practice Problems

Question 1: CONCEPTUAL

Which of the following best describes the difference between procedural due process and substantive due process?

A. Procedural due process protects rights found in the Bill of Rights, while substantive due process protects rights found in the Fourteenth Amendment.
B. Procedural due process requires the government to follow fair procedures before depriving someone of life, liberty, or property, while substantive due process protects certain fundamental rights from government infringement regardless of the procedures used.
C. Procedural due process applies only to criminal cases, while substantive due process applies only to civil cases.
D. Procedural due process is enforced by Congress through legislation, while substantive due process is enforced solely by the judiciary.

Show answer (B)

B is correct. Procedural due process focuses on how the government acts (requiring fair notice, a hearing, and an impartial decision-maker), while substantive due process focuses on what the government may do, holding that certain fundamental rights cannot be infringed even with perfect procedures. A is incorrect because both forms of due process draw from both the Fifth and Fourteenth Amendments. C is incorrect because both types of due process apply in criminal and civil contexts. D is incorrect because both Congress and the courts play roles in enforcing procedural protections, and substantive due process is not exclusively judicial—Congress may also protect substantive rights through legislation.

Question 2: BASIC APPLICATION

In Griswold v. Connecticut (1965), Justice Douglas argued that the right to privacy was derived from "penumbras" of the Bill of Rights. Which of the following best explains why this reasoning was controversial?

A. The Constitution explicitly protects the right to privacy in the Ninth Amendment, making it unnecessary to rely on penumbras.
B. The penumbras doctrine implied that the Court could identify and enforce constitutional rights not explicitly stated in the text, raising concerns about judicial overreach.
C. The penumbras doctrine conflicted with the incorporation doctrine by applying the Bill of Rights directly to state governments.
D. The penumbras doctrine was controversial because it overturned the precedent established in Marbury v. Madison regarding judicial review.

Show answer (B)

B is correct. The penumbras reasoning was controversial precisely because it allowed the Court to derive unenumerated rights from the implications and "zones of privacy" created by several enumerated amendments, giving the judiciary significant power to identify new constitutional rights without explicit textual support. Critics, including originalists, argued this amounted to judicial legislation. A is incorrect because the Ninth Amendment does not explicitly enumerate a right to privacy—it merely states that the enumeration of certain rights shall not be construed to deny others retained by the people. C is incorrect because the penumbras doctrine does not conflict with incorporation; rather, incorporation via the Fourteenth Amendment is the mechanism by which the Bill of Rights applies to states. D is incorrect because Griswold had nothing to do with overturning Marbury v. Madison—the principle of judicial review remained intact.

Question 3: INTERMEDIATE

3 pts

A state legislature passes a law requiring all citizens to submit to mandatory DNA collection and storage in a government database for the stated purpose of solving violent crimes. A citizen challenges the law as a violation of their constitutional rights. (A) Identify a specific constitutional amendment that the citizen could cite in their challenge. (B) Explain how the right to privacy, as developed in Supreme Court precedent, applies to this scenario. (C) Explain which level of judicial scrutiny a court would most likely apply and why.

Show answer

Part A (1 point): The citizen could cite the Fourth Amendment's protection against unreasonable searches and seizures. Alternatively, they could invoke the Fourteenth Amendment's Due Process Clause, arguing that mandatory DNA collection violates substantive due process by infringing on bodily autonomy and informational privacy. Part B (1 point): The right to privacy, as recognized in Griswold and its progeny, protects individuals from government intrusion into intimate personal matters. Mandatory DNA collection from all citizens—not just those suspected of crimes—would represent a sweeping government intrusion into bodily integrity and personal genetic information without individualized suspicion. In Carpenter v. United States (2018), the Court recognized that digital information can reveal intimate details of a person's life and is protected by the Fourth Amendment. DNA data is even more personally revealing, strengthening the privacy argument. Part C (1 point): A court would most likely apply strict scrutiny because the law burdens the fundamental right to privacy and bodily autonomy. Under strict scrutiny, the government must demonstrate that the mandatory DNA collection serves a compelling governmental interest (public safety/solving violent crimes) and that the law is narrowly tailored—meaning it uses the least restrictive means to achieve that interest. A blanket requirement covering all citizens, rather than only those arrested for serious offenses, would likely fail the narrow tailoring requirement because less intrusive alternatives exist.

Question 4: APPLIED

4 pts

Some argue that the Supreme Court should actively protect unenumerated rights, such as the right to privacy, through substantive due process. Others argue that protecting unenumerated rights is a form of judicial overreach and that such decisions should be left to elected legislatures. Develop an argument about whether the Supreme Court should use substantive due process to protect unenumerated rights like the right to privacy. In your essay: • Articulate a defensible claim or thesis. • Support your claim with at least TWO pieces of specific and relevant evidence. • Use reasoning to explain why your evidence supports your claim. • Respond to an opposing or alternative perspective.

Show answer

Rubric Point 1 — Defensible Claim (1 point): Must present a defensible claim that directly addresses whether the Supreme Court should use substantive due process to protect unenumerated rights. Example: "The Supreme Court should use substantive due process to protect unenumerated rights because the Ninth Amendment explicitly acknowledges the existence of rights not listed in the Constitution, and the judiciary is uniquely positioned to protect minority rights from majoritarian tyranny." Rubric Point 2 — Evidence 1 (1 point): Must provide specific, relevant evidence supporting the claim. Example: In Obergefell v. Hodges (2015), the Court used substantive due process to protect the fundamental right to marry for same-sex couples, a right that state legislatures in many states had refused to recognize through democratic processes. This illustrates the judiciary's counter-majoritarian role in protecting individual liberties. Rubric Point 3 — Evidence 2 with Reasoning (1 point): Must provide a second piece of evidence with reasoning connecting it to the claim. Example: The Ninth Amendment states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This textual provision directly supports the idea that the Framers intended for the Constitution to protect more than just the rights explicitly listed, providing a textual basis for substantive due process that answers the originalist concern about inventing rights. Rubric Point 4 — Responds to Alternative Perspective (1 point): Must address an opposing viewpoint. Example: Opponents argue, as Justice Alito did in Dobbs, that substantive due process allows unelected judges to impose personal policy preferences as constitutional law, undermining democratic governance. However, this argument overlooks the fact that the entire structure of the Bill of Rights is designed to place certain fundamental liberties beyond the reach of majoritarian politics. The purpose of judicial review is precisely to check democratic majorities when they threaten individual rights. Without substantive due process, there would have been no constitutional mechanism to challenge Connecticut's ban on contraceptives in Griswold, demonstrating that this doctrine serves as an essential safety valve against legislative overreach.

Question 5: CRITICAL THINKING

3 pts

Use the information in the table below to answer the questions. Public Opinion on Whether the Constitution Protects a Right to Privacy (Gallup, selected years): | Year | Agree (%) | Disagree (%) | No Opinion (%) | |------|-----------|-------------|----------------| | 2003 | 80 | 15 | 5 | | 2012 | 72 | 22 | 6 | | 2022 | 63 | 30 | 7 | (A) Identify a trend in the data. (B) Draw a conclusion about public attitudes toward the constitutional right to privacy based on the data. (C) Explain how the trend identified in (A) could affect the policymaking process regarding privacy rights.

Show answer

Part A — Identify a Trend (1 point): From 2003 to 2022, the percentage of Americans who agree that the Constitution protects a right to privacy declined from 80% to 63%, a decrease of 17 percentage points over approximately two decades. Simultaneously, the percentage who disagree doubled from 15% to 30%. Part B — Draw a Conclusion (1 point): The data suggest that while a majority of Americans continue to believe the Constitution protects a right to privacy, this belief has weakened considerably over time. The growing share of those who disagree may reflect increased political polarization around privacy-related issues (such as abortion and LGBTQ+ rights), as well as the influence of originalist arguments that have gained prominence in public discourse and jurisprudence. Despite the decline, the majority consensus suggests that public opinion still broadly supports constitutional privacy protections. Part C — Explain How the Trend Could Affect Policymaking (1 point): The declining consensus on constitutional privacy rights could embolden elected officials in conservative-leaning states to pass legislation restricting activities previously protected under the right to privacy (such as access to contraception or intimate conduct), calculating that a significant and growing portion of their constituents would support such restrictions. Conversely, in states where support for privacy rights remains strong, legislatures might enact statutory protections to codify rights that were previously protected only by judicial interpretation—as several states did by passing laws protecting abortion access after Dobbs. At the federal level, the shifting opinion landscape could make it more politically feasible for Congress to either codify or restrict privacy rights through legislation, depending on which party holds power, as representatives respond to the changing preferences of their constituents through the linkage institution of elections.

SUMMARY

Summary

The Due Process Clauses of the Fifth and Fourteenth Amendments serve as the constitutional foundation for both procedural protections (fair notice, hearing, impartial tribunal) and substantive rights that no procedure can override. Through selective incorporation, the Fourteenth Amendment applies most Bill of Rights protections against state governments. The unenumerated right to privacy, first recognized in Griswold v. Connecticut (1965) through the "penumbras" of multiple amendments, was expanded in Roe v. Wade (1973), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015), and narrowed by Dobbs v. Jackson (2022).

Courts apply strict scrutiny when a law burdens a fundamental right, requiring the government to show a compelling interest and narrow tailoring. The ongoing debate between living constitutionalism and originalism determines whether the Court reads the Due Process Clause as protecting evolving liberties or only those "deeply rooted in the Nation's history and tradition." For the AP exam, master the key cases, know which constitutional text each relies upon, understand how levels of scrutiny operate, and be prepared to construct arguments evaluating whether the judiciary or elected legislatures should define the scope of unenumerated rights.