This chapter examines the Supreme Court’s practice, over approximately a century and a half, in developing and applying the “substantive due process” doctrine. The animating premise of that doctrine is that the Due Process Clause confers judicially enforceable protections against substantively unfair infringements of certain “unenumerated” yet fundamental or important rights. After the Court’s embarrassed climb down during the 1930s from a line of decisions enforcing rights to freedom of contract, the Court reembraced the Due Process Clause as a source of “unenumerated” rights in Roe v. Wade (1973) and, later, in decisions protecting rights to engage in private acts of sexual intimacy and extending the unenumerated right to marry to same-sex couples. Although the current Court overturned Roe in Dobbs v. Jackson Women’s Health Organization (2022), the majority opinion avoided a strictly originalist approach by embracing precedents holding that the Due Process Clause protects some fundamental substantive rights that are grounded in “tradition.” The chapter explores the conservative justices’ reasons for adopting that position. It also considers whether substantive due process decisions invalidating prohibitions against sodomy and laws defining marriage as necessarily involving one man and one woman can survive under the rationale of Dobbs.

This chapter examines the contours of theories and debates about the nature and function of the right to resist as a legal concept. Firstly, it identifies four main approaches to conceptualizing the nature of the right: as moral, legal, both, or other. It then considers three main conceptions of the concept’s relationship to the rule of law. Concerning its other key characteristics, the chapter considers possibilities including that it is: a fundamental ‘human right’ in the political rights cluster; an ‘unenumerated’, ‘implied’, or ‘latent’ right; an enforceable ‘claim’ right; a ‘right’ or ‘duty’ or hybrid ‘right-duty’; a primary or secondary right or both. Secondly, the chapter identifies possibilities for the legal function of the right, including as: a self-help remedy for enforcement or prevention; an exceptional immunity, justification, or temporary permission by license; a form of jus ad bellum; or a lawful exception and lex specialis rule. It concludes non-exclusively that the nature of the contemporary right to resist is a potentially enforceable human right, functioning as a lex specialis rule of exception.

Human dignity is not contained in the text of the 1947 Constitution of the Republic of China (Taiwan). It was not until early 90s that “dignity” was enacted in constitutional amendments, not as “human dignity” but as “dignity of women.” “Human dignity” entered into Taiwan’s constitutional jurisprudence through the Constitutional Court’s 1996 interpretation by enlarging the “women’s dignity” clause to include “human dignity.” And a generation of German trained legal scholars who formed a strong academic community aided rapid and extensive reception of the Constitutional Court’s interpretive move. In the following two decades, the Court has consolidated dignity as a fundamental constitutional value and has used it to serve four functions. The first is to add weight to the existing basic rights. The second is to ground unenumerated rights, such as right to privacy, right to reputation, and right of personality. The third is to entail inviolable core of basic rights not subject to balancing. The fourth is to balance constitutional duty and right. I also note that, after 2003, human dignity has increasingly been associated with the values of self-realization and self-fulfilment.