Constitutional Cadenzas

26 Pages Posted: 18 Apr 2008

See all articles by Daniel A. Farber

Daniel A. Farber

University of California, Berkeley - School of Law

Abstract

A cadenza is a standard part of the concerto, originally intended to be improvised by the performer rather than supplied by the composer. This essay asks whether the Constitution contains cadenzas - that is, instructions for the interpreter to improvise upon the Constitution's grand themes. The best examples are the Ninth Amendment and the Privileges and Immunities Clause of the Fourteenth Amendment. I argue that both of these constitutional provisions call for the protection of unenumerated fundamental rights, leaving the specification and evolution of those rights to further elaboration. I also argue that foreign human rights protections as well as American traditions are relevant to that process of elaboration.

To continue the musical metaphor, the essay comes in four movements. The first movement reprises constitutional history and text; the second considers some methodological issues; the third sketches some applications, including abortion and homosexuality; and the fourth responds briefly to the qualms of legal formalists.

Keywords: constitutional law, Ninth Amendment, Fourteenth Amendment, fundamental rights

Suggested Citation

Farber, Daniel A., Constitutional Cadenzas. UC Berkeley Public Law Research Paper No. 1122064. Available at SSRN: https://ssrn.com/abstract=1122064 or http://dx.doi.org/10.2139/ssrn.1122064

Daniel A. Farber (Contact Author)

University of California, Berkeley - School of Law ( email )

Boalt Hall
Room 894
Berkeley, CA 94720-7200
United States
510-642-0340 (Phone)
510-642-3728 (Fax)

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