The two-part test from Washington v. Glucksberg is the framework the Supreme Court uses to decide whether the Fourteenth Amendment’s Due Process Clause protects a right the Constitution never names. To qualify, the asserted right must be (1) deeply rooted in the nation’s history and tradition and implicit in the concept of ordered liberty, and (2) described with precision rather than in sweeping philosophical terms.1Justia. Washington v. Glucksberg, 521 U.S. 702 (1997) A right that clears both prongs receives heightened constitutional protection; one that fails either prong leaves the challenged law subject only to rational basis review, the most deferential standard in constitutional law.
Chief Justice Rehnquist wrote the 1997 opinion for a unanimous Court in a case brought by four Washington physicians, three terminally ill patients, and a counseling organization who argued that the Due Process Clause protected a competent, terminally ill adult’s choice to seek a physician’s help in dying. The Court rejected the claim and, in doing so, laid down the analytical tool that governs unenumerated-rights litigation today.
Prong One: Deeply Rooted in History and Tradition
The first prong asks whether the asserted right is so embedded in American legal tradition that neither liberty nor justice could exist without it.1Justia. Washington v. Glucksberg, 521 U.S. 702 (1997) The point is to anchor constitutional analysis in something more objective than any individual justice’s sense of fairness. History supplies an external check on judicial discretion.
Applying that standard in Glucksberg, the Court reviewed more than 700 years of Anglo-American treatment of suicide and assistance in suicide. At English common law, suicide was a crime carrying penalties including forfeiture. American colonies inherited that tradition. As states eventually stopped punishing suicide itself, they replaced those penalties with statutes specifically targeting anyone who helped another person attempt it. By 1997, assisted suicide was a crime in almost every state and in almost every western democracy. That unbroken record made the claim impossible to sustain: a practice treated as criminal for centuries cannot simultaneously qualify as a fundamental constitutional right.
The Court also drew a firm line against reading its earlier right-to-refuse-treatment case, Cruzan v. Director, Missouri Department of Health, as a gateway to a broader right to die. Cruzan recognized a liberty interest rooted in the common-law tradition of bodily integrity, which has deep historical support.2Justia. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990) Actively seeking help to end one’s life had no comparable tradition of legal protection. Withdrawing treatment lets nature take its course; affirmatively causing death is a different act, and the law has treated it that way.
Prong Two: A Careful, Precise Description of the Right
The second prong forces anyone claiming a new fundamental right to define it with specificity. Broad abstractions like “personal autonomy” or “the right to control one’s body” are not precise enough. The Court demands a careful description of the asserted liberty interest because vague formulations can stretch to cover almost anything, and the judiciary has no business inventing rights at that level of generality.3Legal Information Institute. U.S. Constitution Annotated – Substantive Due Process General Approach
The challengers in Glucksberg initially framed their claim around dignity, autonomy, and the deeply personal nature of end-of-life decisions, pointing to the Court’s privacy and medical-treatment cases as support for a general right to make intimate choices free of government interference. The Court refused that framing. It recast the question narrowly: does the Due Process Clause protect a right to commit suicide that itself includes a right to assistance in doing so?1Justia. Washington v. Glucksberg, 521 U.S. 702 (1997)
The narrowing matters. At a high level of generality, concepts like autonomy and dignity sound like principles that already enjoy constitutional protection. Narrowed to the specific act of physician-assisted suicide, the claim runs headlong into the historical record of prohibition. The precision requirement forces courts to compare the actual conduct at issue against history, not a philosophical abstraction that might encompass it.
What Happens When a Right Fails the Test
A claimed right that does not clear both prongs receives no heightened protection. The challenged law then faces only rational basis review, under which a statute is presumed valid and survives as long as it bears a rational connection to any legitimate government interest.1Justia. Washington v. Glucksberg, 521 U.S. 702 (1997) The burden falls on the person attacking the law, not on the government defending it, and in practice claims that fail the Glucksberg test rarely succeed at the rational basis stage.
Washington’s ban cleared that bar easily. The Court identified several legitimate interests supporting the law:
- Preserving human life regardless of a person’s health or prognosis.
- Preventing suicide as a broader public-health problem, particularly among the young, the elderly, and those with untreated depression or pain.
- Protecting the integrity of the medical profession and the trust that defines the doctor-patient relationship.
- Shielding vulnerable groups (the elderly, people with disabilities, the terminally ill, and the poor) from pressure to end their lives.
- Preventing a slide from voluntary assisted suicide toward involuntary euthanasia.
Any one of these interests could sustain the statute, and together they made the law’s rationality obvious.
How Courts Have Applied the Test Since 1997
The reach of the two-part test depends on which kind of case a court is deciding. Some later decisions have distinguished it, others have applied it at full strength, and it has migrated into contexts beyond unenumerated rights.
Obergefell v. Hodges (2015)
When the Court recognized a constitutional right to same-sex marriage, opponents argued that Glucksberg required the Court to ask whether there was a deeply rooted historical right to “same-sex marriage” specifically. The Court rejected that framing. It acknowledged that Glucksberg insisted on a circumscribed definition tied to specific historical practices but said that approach, while appropriate for physician-assisted suicide, was inconsistent with how the Court had always analyzed the right to marry.4Justia. Obergefell v. Hodges, 576 U.S. 644 (2015)
Loving v. Virginia had not asked about a “right to interracial marriage,” and Turner v. Safley had not asked about a “right of inmates to marry.” In each case, the Court examined the right to marry at a comprehensive level and asked whether excluding a particular group was justified. Obergefell treated the careful-description requirement as case-specific rather than universal, creating real uncertainty about when the test controls and when it does not.
Dobbs v. Jackson Women’s Health Organization (2022)
Any doubt about the framework’s continued vitality ended with Dobbs. The majority opinion overturning Roe v. Wade and Planned Parenthood v. Casey treated the Glucksberg framework as the established method of substantive due process analysis, holding that any unenumerated right must be deeply rooted in the nation’s history and tradition and implicit in the concept of ordered liberty.5Justia. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022)
The Court examined the legal status of abortion at the time the Fourteenth Amendment was ratified in 1868 and found that three-quarters of the states criminalized abortion at all stages of pregnancy, with no pre-Roe authority supporting a constitutional right to abortion. Because the right could not clear the “deeply rooted” bar, it did not qualify for heightened protection.
Dobbs also clarified how the tension with Obergefell gets resolved in practice. For rights already recognized as fundamental through long lines of precedent (such as marriage), the Court may still analyze the right at a broad level of generality. For newly asserted rights, the strict historical inquiry from Glucksberg remains the gatekeeping standard.
Timbs v. Indiana (2019)
The “deeply rooted in history and tradition” language has also traveled outside the unenumerated-rights context. When the Court decides whether a Bill of Rights guarantee applies against the states through the Fourteenth Amendment, it uses the same phrasing. In Timbs v. Indiana, the Court held that the Eighth Amendment’s prohibition on excessive fines is incorporated against the states because it is fundamental to the nation’s scheme of ordered liberty and deeply rooted in history.6Legal Information Institute. Timbs v. Indiana The test’s language now runs through both substantive due process and incorporation doctrine.
Why the Test Is Built This Way
The strict requirements of the two-part test exist because the Court has been burned before. During what is now called the Lochner era in the early twentieth century, the Court repeatedly used substantive due process to strike down minimum wage laws, maximum hour laws, and other economic regulations, treating freedom of contract as a fundamental right and effectively acting as a policy veto over progressive legislation. The backlash against that period is one of the defining episodes in American constitutional history.
The Glucksberg framework is designed to make that mistake harder to repeat. Tethering new rights to documented historical practices rather than judicial intuition constrains courts from striking down laws simply because they disagree with the policy. The careful-description requirement serves the same purpose: it prevents courts from wrapping a contested policy question in the language of liberty and declaring it resolved. The majority in Glucksberg was explicit that whether to permit physician-assisted suicide was a question for legislatures and voters, not for courts interpreting the open-ended word “liberty” in the Fourteenth Amendment.
That is the practical takeaway for anyone evaluating whether an asserted constitutional right will survive a modern challenge. The court will define the right narrowly, test it against a long historical record, and, if it fails either step, apply a standard of review the government almost always wins.