Unenumerated Rights


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Unenumerated Rights

Rights that are not expressly mentioned in the written text of a constitution but instead are inferred from the language, history, and structure of the constitution, or cases interpreting it.

Typically, the term unenumerated rights describes certain fundamental rights that have been recognized by the U.S. Supreme Court under the U.S. Constitution. In addition, state courts have recognized unenumerated rights emanating from the principles enunciated by their own state constitutions. No comprehensive list of unenumerated rights has ever been compiled nor could such a list be readily produced precisely because these rights are unenumerated.

Nevertheless, a partial list of unenumerated rights might include those specifically recognized by the Supreme Court, such as the right to travel, the right to privacy, the right to autonomy, the right to dignity, and the right to an Abortion, which is based on the right to privacy. Other rights could easily be added to this list, and no doubt will be in the future. In washington v. glucksberg, 117 S. Ct. 2258 (1997), the Supreme Court ruled that there is no unenumerated constitutional right to die.

Unenumerated rights commonly are derived through a reasoned elaboration of express constitutional provisions. The First Amendment, for example, guarantees Freedom of Speech but says nothing about the nature of the speech protected. Through the process of interpretation, the Supreme Court has held that the Free Speech Clause protects both verbal and nonverbal expression, as well as communicative conduct. The right to engage in offensive symbolic expression, such as flag burning, forms an essential part of the freedoms contemplated by the First Amendment, freedoms that are integral to maintaining an open and democratic society (texas v. johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]). Judicial protection of such unenumerated rights, the Court has reasoned, helps establish a Penumbra or buffer that insulates expressly enumerated liberties from governmental encroachment.Courts are ordinarily reluctant to recognize new unenumerated rights. Most judges are sensitive to accusations of "inventing" new liberties out of whole cloth. Critics charge that judges who recognize new unenumerated rights are imposing their personal values on the law, rather than faithfully interpreting the text of the Constitution. The role of judges, these critics contend, is solely to apply the law, while only legislators are empowered to make new law through the exercise of value-laden judgments.

The Supreme Court attempts to deflect such criticism by relying on history as justification for its decisions recognizing certain unenumerated rights. For example, the Fifth and Fourteenth Amendments to the U.S. Constitution prohibit the government from depriving any person of life, liberty, or property without "due process of law." Yet the amendments do not define "due process," nor do they address issues such as how much process is due during a given legal proceeding. Although the Supreme Court has interpreted this provision to require procedural fairness in civil and criminal litigation, each procedural right the Court has recognized is technically unenumerated because the due process clause offers no hints as to what legal procedures it contemplates.

In criminal cases the Supreme Court has held that the Due Process Clause guarantees every defendant the right to be presumed innocent by the trier of fact, either a judge or a jury, until proved guilty Beyond a Reasonable Doubt by the government (in re winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]). In reaching this decision, the Supreme Court stated that the Reasonable Doubt and Presumption of Innocence standards have been associated with the concept of due process since early colonial times. By citing history and tradition as the basis for many of its controversial decisions, the Supreme Court provides an answer to its critics who claim that unenumerated rights have no basis other than personal predilections of the judges who recognize them.

Further readings

Dworkin, Ronald M. 1992. "Unenumerated Rights: Whether and How Roe Should Be Overruled." University of Chicago Law Review 59 (winter).

Helscher, David. 1994. "Griswold v. Connecticut and the Unenumerated Right of Privacy." Northern Illinois University Law Review 15 (fall)

Posner, Richard A. 1992. "Legal Reasoning from the Top Down and from the Bottom Up: The Question of Unenumerated Constitutional Rights." University of Chicago Law Review 59 (winter).

Cross-references

Bill of Rights; Due Process of Law; Fourteenth Amendment; Judicial Review.

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Most important, how should the Court go about identifying and determining the content of unenumerated rights? Although they might be founded on the Declaration of Independence, the Ninth Amendment, and the Privileges and Immunities Clause, none of these sources discloses anything about the content of the rights.
That attitude is a general friendliness to "judicial federalism" and hostility to a Supreme Court jurisprudence of unenumerated rights, to Roscoe Pound and Ronald Dworkin, to the Fourteenth Amendment, and above all to Abraham Lincoln.
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