America's lived constitution.

AuthorAmar, Akhil Reed

FEATURE CONTENTS I. "RIGHTS... PRIVILEGES... IMMUNITIES" A. America's Implicit Constitution B. America's Enacted Constitution C. America's Lived Constitution II. "IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT ... A. From Silence to Speech B. Theorizing Practice C. Symmetries and Asymmetries III. "DUE PROCESS" A. Griswold B. Beyond Griswold IV. "HOUSES" A. Property and Privacy B. Just Compensation V. "UNUSUAL" A. How To Count B. After the Count [ILLUSTRATION OMITTED]

(1)

Nothing in the written Constitution explicitly guarantees the right to have a pet dog, to play the fiddle, to relax on your porch, to raise your children, or to wear a hat. Yet these and countless other liberties are generally observed by American governments, absent compelling reasons for abridgment. Many of Americans' most basic rights are simply facts of life: "This is the way we, the people, do things in America, and we therefore have the right to keep doing these things, if we please."

This Feature explores the constitutional status of these lived rights. (2)

  1. "RIGHTS ... PRIVILEGES ... IMMUNITIES"

    The Ninth Amendment proclaims that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." What exactly are these "other[]" rights? Where are they to be found and how are they to be enforced? What are we to make of the words "the people" in this Amendment?

    Also, what about the Fourteenth Amendment? Its opening section declares that "[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens." Nowhere does this Amendment itemize these unabridgeable entitlements or specify where they are to be discovered. How should faithful interpreters read this pivotal provision? Which branch or branches of government should take the lead in defining Americans' basic rights, freedoms, privileges, and immunities? Should faithful interpreters safeguard the Amendment's unspecified privileges and immunities against the federal government as well as against the states, even though the Amendment does not specifically say this?

    1. America's Implicit Constitution

      To begin with, faithful interpreters must peer behind and dig beneath the written Constitution to locate rights that may be implicit in its words. While unenumerated--that is, not expressly declared in a specific constitutional clause--implicit rights are nonetheless full-fledged constitutional entitlements on any sensible reading of the document.

      A Hollywood-style hypothetical to sharpen the analysis: imagine a defendant on trial for murder in the District of Columbia who claims that he is innocent and that someone else, a man with close ties to the prosecutor's office, is the real culprit. Miraculously, the defendant has acquired decisive forensic evidence that he seeks to lay before the jury: a knife perfectly matching the victim's fatal stab wound, with her dried blood on the blade, and the real culprit's fingerprints and DNA on the handle. The defendant himself is also poised to testify about the culprit's motive. However, the prosecutor moves to exclude the knife from the trial and thereby prevent the jury from even learning of the weapon's existence because the defense team obtained the knife via certain daring acts of stealth, deception, and trespass committed by a private investigator. The prosecutor piously points to a federal statute and a complementary District of Columbia ordinance generally prohibiting the introduction of illegally acquired evidence. When the defendant counters by asserting that he has a basic constitutional right to establish his innocence, the prosecutor responds that there is no such right specifically enumerated in the Constitution and that the statute and ordinance thus govern the case. How should the judge rule ?

      For the defendant, of course. No matter what the prosecutor might say to the judge, the Ninth Amendment gives defense counsel a knock-down rejoinder.

      For example, the prosecutor might stress that while the text of the Sixth Amendment explicitly guarantees a criminal defendant the rights to confront the government's witnesses and to subpoena witnesses for the defense, (3) the Amendment has no comparably specific language guaranteeing the defendant a right to introduce physical evidence, such as a knife. Thus, the argument would run, the words of the Sixth Amendment negate the very existence of the supposed constitutional right claimed by the defendant.

      While this sort of move--a general and sweepingly broad argument from negative implication--might make sense in some constitutional situations, this is not one of them. (4) The Ninth Amendment, after all, instructs us precisely not to read the Sixth Amendment (or any other constitutional listing of rights, for that matter) in a stingy, negative-implication, rights-denying fashion: "[t]he enumeration in the Constitution, of certain rights"--such as the rights to confront and to compel witnesses--"shall not be construed to deny or disparage other[] [rights] retained by the people," such as the right to establish one's own innocence, even in contexts not directly involving witnesses.

      But where, our hypothetical prosecutor might ask, does this putative right to verify one's innocence come from? Even if the Sixth Amendment does not negate the existence of such a right, our prosecutor would insist that the Amendment surely does not affirm this right, which is nowhere specifically mentioned in the Amendment's text.

      Here, too, our hypothetical prosecutor errs. When properly construed alongside the Ninth Amendment, the Sixth Amendment does indeed affirm and presuppose a defendant's basic right to defend himself with truthful evidence. The Ninth Amendment tells us to look beyond "enumeration" when interpreting--"constru[ing]"--the Constitution. It reminds us that not everything in the Constitution is textually itemized and specified. Some of what is in the Constitution is implied rather than expressed. Part of the meaning that can be extracted from the document lies between the lines and beneath the words. Thus, even as the Ninth Amendment emphatically warns against certain anti-rights negative-implication readings of the terse text, the Amendment warmly invites certain pro-rights positive-implication readings.

      Some implicit principles follow afortiori from explicit provisions. For example, since the First Amendment prevents the President from censoring publishers even when Congress has purported to authorize a regime of prior restraint, (5) surely it follows a fortiori that the Constitution prevents him from censoring publishers on his own say-so in the absence of an authorizing statute. Since the Fifth Amendment bars the government from placing a defendant twice in jeopardy for the same offense, (6) surely it follows afortiori that the Constitution bars the government from placing him thrice in jeopardy. Since the Sixth Amendment guarantees a defendant the right to use legal force to compel an uncooperative witness to testify, (7) surely it follows a fortiori that the Constitution entitles a defendant to put a cooperative witness on the stand. And--returning to our hypothetical--since the Sixth Amendment entitles a defendant to use legal force against others to establish his own innocence, via subpoenas compelling testimony from uncooperative witnesses, surely it follows afortiori that the defendant has a right to introduce reliable physical evidence already in his possession that also establishes his innocence.

      When we read between the lines and dig beneath the words, we see that the deep purpose of the Sixth Amendment is to ensure a fair trial for the defendant and to enable him to show that he did not do what the government has accused him of having done. (8) The enumerations of specific rights, such as the rights to confront and to compel witnesses and to be informed of the specific criminal charges being made by the government, imply and presuppose this fundamental unifying structure--the spirit of the Sixth Amendment.

      Indeed, a defendant's right to defend himself truthfully with reliable evidence and testimony would exist even if the Sixth Amendment had never been adopted. This root right would sensibly be understood as part of what the very word "trial" meant in the original Constitution's Article III, (9) which in turn must be read against the Preamble promise that the Constitution would "establish Justice," not subvert it. What is the purpose of a "trial" worthy of the name, if not to allow a defendant a fair opportunity to show that he is innocent of the charges leveled against him? The very structure of the trial attests to this purpose: strictly speaking, a trial is triggered when a defendant pleads "not guilty" and ends when the trier (typically a jury) renders a verdict of "guilty" or "not guilty." (10)

      But if all this is so, was much of the Sixth Amendment logically superfluous? Would its textually specified rules of confrontation, compulsory process, notice of charges, and so on have been properly inferred from the Philadelphia Constitution's Judicial Article even had the Bill of Rights never been adopted? Probably yes--and in this respect the Sixth Amendment was hardly unique. For example, Article I, Section 8's Necessary and Proper Clause was widely viewed as merely declaratory of the true scope and limits of federal power deducible from the rest of the Constitution, properly construed." So, too, the core of the First Amendment's Free Speech Clause merely codified a principle of free political expression implicit in the Philadelphia Constitution as a whole and evident in the very enactment of the document. (12) Likewise, the Tenth Amendment textualized principles of federalism and popular sovereignty obviously implicit in the original Constitution and embodied in the enactment process. (13)

      Nor is this brief list exhaustive. Still other explicit rules...

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