As always, you can find the Dobbs v. Jackson decision here.

I took a quick look at this paragraph from the Timbs decision in the last post:

“When ratified in 1791, the Bill of Rights applied only to the Federal Government. Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). ‘The constitutional Amendments adopted in the aftermath of the Civil War,’ however, ‘fundamentally altered our country’s federal system.’ McDonald, 561 U. S., at 754. With only ‘a handful’ of exceptions, this Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States. Id., at 764–765, and nn. 12–13. A Bill of Rights protection is incorporated, we have explained, if it is ‘fundamental to our scheme of ordered liberty,’ or ‘deeply rooted in this Nation’s history and tradition.’ Id., at 767 (internal quotation marks omitted; emphasis deleted).

Now I want to follow the citations in this paragraph. The Barron citation deals with the history of the Bill of Rights, and the first McDonald citation is about the changes to the law after the Civil War. The second McDonald citation, though, discusses ordered liberty:

“The decisions during this time abandoned three of the previously noted characteristics of the earlier period.[Footnote 11] The Court made it clear that the governing standard is not whether any “civilized system [can] be imagined that would not accord the particular protection.” Duncan, 391 U. S., at 149, n. 14. Instead, the Court inquired whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice. Id., at 149, and n. 14; see also id., at 148 (referring to those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions” (emphasis added; internal quotation marks omitted)).

And also footnote 11:

“By contrast, the Court has never retreated from the proposition that the Privileges or Immunities Clause and the Due Process Clause present different questions. And in recent cases addressing unenumerated rights, we have required that a right also be “implicit in the concept of ordered liberty.” See, e.g., Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).

We have a couple more quotes now reiterating that “ordered liberty” is considered. This claims once again that “ordered liberty” is considered. The footnote has an interesting addition: that this is recent. We’re still searching for a passage that explains why a right must conform to “our scheme of ordered liberty” to be valid, and now we’re told that (at least at the time of McDonald in 2010) this requirement has been asserted “in recent cases.”

So is this demand for “ordered liberty” not “deeply rooted in our history and traditions”?