What are Unenumerated Rights?
In the United States and other Common Law countries, our written Constitutions attempt to outline the basic rights conferred to citizens. Other rights are inferred from this document. These inferred rights are unenumerated rights, including things like the right to marital privacy, the right to travel, and the right to send offspring to private school. Citizens may also claim unenumerated rights protected by state constitutions.
Other terms that describe unenumerated rights are “natural rights,” “implied rights,” and “fundamental rights.”
Foundations of the Country
There was a dispute among the Founding Fathers of the country about the powers of the government that they were creating. They disagreed on ways to make Americans as free as possible from laws and restrictions, unlike those who live under monarchs (such as King George III which the Americans fought against in the Revolution). A group called the Anti-Federalists didn’t want individual rights set forth in a Bill of Rights because, as their leader James Madison said, it might by inference create a situation where the federal government retained rights that were not spelled out. Therefore the framers of the Constitution compromised by adding a Ninth Amendment that specifically addresses unenumerated rights.
The role of the U.S. Supreme Court is to interpret whether laws imposed by the state and federal governments infringe on Constitutional rights.
Bill of Rights
The first eight amendments to the U.S. Constitution describe the government’s approach to rights, including rights to vote, to representation in the government, the right to bear arms, and more. Judicial precedent, particularly U.S. Supreme Court decisions, are often where unenumerated rights are teased out, then built upon by future decisions.
The Ninth Amendment protects citizens against state or federal laws that would abridge their freedoms and liberties. Supreme Court justices call upon the amendment when deciding case law. But that doesn’t mean everyone agrees what the Ninth Amendment means. There is still considerable discussion among legal scholars as to the extent and derivation of unenumerated rights. In the midst of Supreme Court cases, legal scholars may weigh in with “friend of the court” briefs describing their interpretations of the laws in question, ultimately helping the justices to form their opinions.
Some legal scholars say that the Ninth Amendment was not often debated until the landmark 1965 U.S. Supreme Court case, Griswold v. Connecticut. While this case was specifically about an individual’s right to contraception, the Supreme Court examined Connecticut’s law as an abridgement of individual rights, particularly privacy. Many caution that the Ninth Amendment should not be interpreted as conferring rights but rather as instructions on how to apply the Constitution.
Rights Derived from Case Law
The First Amendment of the U.S. Constitution protects citizens from state-established religion (freedom of religion), from state established media (freedom of the press), and freedom of speech. Among the unenumerated rights extrapolated from this amendment are:
- the right to read, as tested by a number of U.S. Supreme Court cases challenging banned books, including Rosenberg v. Board of Education of New York City (1949) which sought to exclude Dickens novels that depicted Jewish characters negatively;
- the right to dissent, as described by the Supreme Court case West Virginia State Board of Education v. Barnette (1943) that allowed children practicing the Jehovah’s Witness faith to decline saluting the American flag at school, as well as Texas v. Johnson (1989) that allowed burning the American flag as a protected aspect of political speech;
- the right to access, decided by the Waite court in 1883, held that private establishments open to the public could discriminate against patrons, striking down portions of the Civil Rights Act of 1875. This decision was similar to the 2017 decision Masterpiece Cake Shop v. Colorado Civil Rights Commission, which held that a baker could refuse to make a cake for a same-sex wedding due to his religious objections to such marriages.