The Search for Unenumerated Fundamental Rights

Author

Alina Sluzhyvenkova, CUNY Bernard M Baruch CollegeFollow

Date of Award

Fall 12-20-2024

Document Type

Thesis

Degree Name

Bachelor of Arts (BA)

Honors Designation

yes

Program of Study

Political Science

Language

English

First Advisor

Thomas Halper

Abstract

There are certain rights that are explicitly enumerated in the Constitution, e.g., right to bear arms, right to free speech, right to a speedy and public trial. There are also rights that aren’t specifically written out but are nevertheless enjoyed by people nationwide. Rights that aren’t explicitly mentioned in the Constitution, but which are fundamental to are called the unenumerated rights. Unenumerated rights are just as important and can be derived from natural law, enumerated rights, the Ninth Amendment, precedents, judicial opinions, and substantive due process.

Substantive due process is a principle guaranteed by the Fifth and Fourteenth Amendments, which protects fundamental rights from arbitrary government interference and thus serves as a driving force for unenumerated rights. If there is an instance in which the government deprives someone of a constitutionally protected right to life, liberty, or property, substantive due process asks whether the government can provide a valid reason for doing so. Historically, substantive due process was utilized by the Supreme Court to protect economic and personal liberties, such as in Lochner v. New York, Meyer v. Nebraska, Pierce v. Society of Sisters, Meyer v. Nebraska, and others. In doing so, the Court was able to justify a lot of unenumerated rights with little to no pushback and sometimes with providing little or no justification. More recently, courts have been more concerned with providing justifications. Conservative justices, like Scalia, Rehnquist, and Alito have argued that in order to protect rights under substantive due process, those rights must have been protected traditionally. Where this is absent, as in cases such as Bowers v. Hardwick or Washington v. Glucksberg, the Court has sometimes relied on the importance of historic precedent as a means of rejecting substantive due process claims and the subsequent existence of the right in question. Other Justices, like Brennan and Douglas, have viewed the Constitution as resembling a living organism that adapts to changing environments, as in Skinner v. Oklahoma or Griswold v. Connecticut.

However, only protecting the rights clearly stated or traditionally protected creates a cyclical line of reasoning, since any claim of substantive due process could always be counteracted with lack of historical precedent. Thus, with only history and tradition to rely on, it would be difficult to establish new rights because their very newness may exclude them. On the other hand, the alternative might involve granting courts a de facto power to amend the Constitution, which is very hard to justify. The tension between these alternatives will form a theme running through the subsequent pages.

Recommended Citation

Sluzhyvenkova, Alina, "The Search for Unenumerated Fundamental Rights" (2024). CUNY Academic Works.
https://academicworks.cuny.edu/bb_etds/198