How Courts Recognize Unenumerated Constitutional Rights

The U.S. Constitution, while explicitly listing certain rights, also implicitly protects a range of "unenumerated" or "unwritten" rights that are fundamental to American life. These include the right to own a pet, relax on one's porch, raise children, play a musical instrument, wear a hat, or enjoy family life in the privacy of one's home. These rights, though not explicitly detailed in the written text, are protected by courts and are rarely interfered with by the government, except in extraordinary circumstances.

Constitutional Basis for Unenumerated Rights

Several constitutional texts signal that the written list of rights is incomplete:

• 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 amendment explicitly acknowledges the existence of rights beyond those listed.
• Fourteenth Amendment: Declares that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This suggests a broad category of protected rights, though it doesn't specify what these "privileges or immunities" are.

Techniques for Identifying Unenumerated Rights

The process of identifying and protecting these unwritten rights involves several interpretive techniques:

1. Reading the Constitution as a Whole and Implicit Principles: This involves deducing principles from the overall structure and intent of the Constitution. For example, if the Vice President cannot preside over the President's impeachment trial due to a conflict of interest, it implicitly follows that the Vice President cannot preside over their own impeachment trial. Similarly, if the Sixth Amendment grants the right to compel witnesses, it implicitly grants the right to present voluntary witnesses. The Fifth Amendment's protection against double jeopardy implicitly extends to protection against triple or quadruple jeopardy.
2. Enactment Argument (Connecting to "We the People"): Rights explicitly stated in the Constitution are connected to the people because "We the People" authorized the Constitution and its amendments. If the people, in adopting the Constitution, embodied certain ideas like robust free speech, then even implicit aspects of that right are authorized by the people. For instance, if Congress cannot abridge free speech, it implicitly follows that the President, without congressional authorization, also cannot censor speech.
3. "Counting" or Social Practice Argument: This technique involves observing the day-to-day lives and customs of ordinary Americans to identify rights that have become fundamental through widespread practice and consensus. This is a different way of connecting rights to "We the People," not through grand, momentous acts of ordainment, but through ordinary, lived experiences.

Examples of Unenumerated Rights from Social Practice

Right to Testify in One's Own Defense

• Historical Context: At the time of the Founding, neither federal nor state criminal courts allowed defendants to testify. This was seen as a "favor" to the defendant, preventing them from feeling pressured to testify (and potentially perjure themselves) or from being judged negatively by a jury for not testifying. It was also consistent with the broader legal principle that interested parties (those with a "stake" in the case) should not testify, similar to how a judge cannot preside over their own case.
• Evolution of Practice: Over time, states began to change this practice. By the Civil War, civil defendants and plaintiffs were allowed to testify. This raised the question of why criminal defendants, who face more severe consequences, should have fewer rights.
• Supreme Court Recognition: As more and more states recognized the right of criminal defendants to testify through state statutes, common law, or constitutional provisions, the U.S. Supreme Court eventually recognized this as an unenumerated right, making it universally applicable. This right is now considered basic and uncontroversial.

Proof Beyond a Reasonable Doubt

• Origin: This phrase is not found in the original Constitution or the Bill of Rights. It emerged in the 19th century.
• Widespread Adoption: State after state recognized the principle that a person should not be convicted unless there is very strong evidence of guilt.
• Supreme Court Recognition: The Supreme Court eventually affirmed this as an unenumerated right, reflecting a widely accepted social practice.

Right to Introduce Reliable Physical Evidence of Innocence

• Implicit Principle: While the Constitution doesn't explicitly grant the right to introduce DNA evidence or other physical evidence of innocence, the fundamental purpose of a trial is to distinguish the innocent from the guilty.
• Lived Experience: Courts routinely allow defendants to introduce such evidence, making it a part of the "lived experience" of justice in America, even without explicit textual mention.

Substantive Due Process and Privacy Rights

The concept of "substantive due process" is a legal phrase used by judges to recognize rights that extend beyond mere courtroom procedure. It has been instrumental in protecting privacy rights.

• Griswold v. Connecticut (1965): The Supreme Court invalidated a Connecticut law that criminalized the use of contraception by married couples. Justice Harlan's concurring opinion argued that this law was "un-American" because no other state interfered with such private conjugal relations. This was an example of the "counting" argument, observing widespread state practice.
• Eisenstadt v. Baird (1972): This case broadened the principle, striking down laws that prohibited even unmarried couples from buying contraceptives. The Court recognized that during the "sexual revolution," contraception had become widely used by ordinary, law-abiding people, making such laws inconsistent with emerging social practices.
• Lawrence v. Texas (2003): The Court struck down laws prohibiting certain consensual sexual behaviors (like anal or oral sex) between adults in private. Justice Kennedy, writing for the majority, again used a "counting" argument, noting that only a few states still had such laws on the books, and even fewer specifically targeted same-sex conduct. Furthermore, these laws were rarely enforced against consensual private conduct. The Court concluded these laws were "un-American" and inconsistent with the lived experience of citizens.

Limitations and Future Predictions

The "counting" approach has its limits:

• Medical Marijuana: The Court has not recognized a right to medical marijuana because widespread state practice does not yet support it.
• Right to End One's Life: Despite philosophical arguments for a right to medically assisted suicide, the Supreme Court has not endorsed it because almost no state recognizes this right as part of the "lived fabric" of America.
• Roe v. Wade (1973): This case, which established a broad abortion right, was controversial precisely because the right announced by the Court was "way out ahead" of actual state practices at the time. Most states were out of sync with the rules laid down by Roe, leading to ongoing debate.

The "counting" method suggests that the Court might eventually recognize gay marriage as an unenumerated right once it becomes prominent enough in a sufficient number of states, forcing outlier states to conform to the evolving social practice.

It is important to note that if a right is explicitly stated in the Constitution, it is protected and cannot be taken away merely because practices change. This creates a "ratchet" effect: enumerated rights are secure, but additional unenumerated rights can be recognized based on evolving social practices and consensus.