23 Pages Posted: 3 Feb 2006
Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted, and what protection they do receive is subject to intense criticism. In this essay, I examine why some are afraid to enforce unenumerated rights. While this reluctance seems most obviously to stem from the uncertainty of ascertaining the content of unenumerated rights, I contend that underlying this concern are more basic assumptions about legislative sovereignty and the proper role of judges. I explain why a proper conception of constitutional legitimacy requires that unenumerated rights be protected somehow, that judicial protection is not as problematic as commonly thought once it is acknowledged that all liberty may be reasonably regulated (as opposed to prohibited), and that we need to ascertain the scope of unenumerated rights only to identify wrongful behavior that may be prohibited altogether because it invariably violates the rights of others.
Keywords: unenumerated rights, Ninth Amendment, Privileges or Immunities Clause of the Fourteenth Amendment, Fourteenth Amendment, legislative sovereignty, role of judges, Constitutional Law
JEL Classification: K41, K49
Suggested Citation: Suggested Citation
Barnett, Randy E., Who's Afraid of Unenumerated Rights?. University of Pennsylvania Journal of Constitutional Law, Vol. 9, p. 1, October 2006; Boston Univ. School of Law Working Paper No. 06-02; Georgetown Public Law Research Paper No. 880715. Available at SSRN: https://ssrn.com/abstract=880715 or http://dx.doi.org/10.2139/ssrn.880715
By Orin Kerr