Reviving Elusive Rights: State Constitutional Unenumerated Rights Clauses as Bounded Guarantors of Fundamental Liberties

Reviving Elusive Rights: State Constitutional

Unenumerated Rights Clauses as Bounded

Guarantors of Fundamental Liberties

BRENNAN MANCIL*

ABSTRACT

Unenumerated rights clauses, which preserve inherent rights not enumer-

ated within a constitution, are caught between a rock and a hard place:

judges either disregard them for their lack of clarity or use them to fabricate

rights. Both results disserve the original purpose of unenumerated rights

clauses as bounded guarantors of the fundamental rights of the citizenry.

These apprehensions further aggravate state judges, who lack the careful

focus of academics and hinder themselves through structuring judicial opin-

ions at the expense of their state constitution’s unenumerated rights clause.

This Note proposes that state supreme courts possessing unenumerated

rights clauses in their state constitutions, with their accompanying sover-

eign obligations to the public, should more carefully apply those provisions

in relevant cases.

The Founders’ efforts to secure unenumerated fundamental rights through

the Ninth Amendment have been thwarted by the U.S. Supreme Court’s failure

to develop definitive models by which to preserve them. Leading academics

have filled theoretical gaps left by the U.S. Supreme Court by generating vari-

ous methods pertinent to state unenumerated rights clause interpretation, albeit

imperfectly. To enhance the efficacy of these provisions, state courts can adopt

a series of techniques—including identifying proper sources of fundamental

rights, interpreting state and federal provisions distinctly, and ordering state

interpretation first after this distinction—that invoke the primacy of state consti-

tutions when protecting inherent rights. After setting forth these interpretive

principles, this Note evaluates how Georgia wields its unenumerated rights

clause to identify and guarantee particular fundamental liberties. By shifting

how they approach their state constitutional unenumerated rights clauses, state

supreme courts can avoid apathetic denial of rights owed to their citizenry and

instead vigorously bestow constitutional protection over them.

* Executive Managing Editor, Emory Law Journal, Volume 70; Emory University School of Law,

J.D. 2021; University of Georgia, B.A. 2017. To Robert Schapiro, my faculty advisor and mentor, thank

you for guiding me through the world of academic publishing and helping structure my amorphous

thoughts into this proposal. To Jon and Shannon Mancil, I would not be where I am today without your

support; thank you for cultivating my interests and values. Finally, to Priscilla Mancil, whom I endlessly

adore and ceaselessly bore with my law babble—thank you for enduring late-night editing, offering your

thoughtful perspective, and sharing life with me. © 2021, Brennan Mancil.

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TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283

I. THE FEDERAL UNENUMERATED RIGHTS CLAUSE: THE NINTH

AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284

A. Origin of the Ninth Amendment . . . . . . . . . . . . . . . . . . . . . . . 284

1. The Federalist/Anti-Federalist Debate at the

Constitutional Convention Led to the Adoption of the

Ninth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285

2. The Text of the Ninth Amendment Offers Judges

Minimal Interpretive Guidance. . . . . . . . . . . . . . . . . . . . 286

B. Federal Jurisprudential Development of Unenumerated

Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

C. State Constitutions and the Development of State

Constitutional Unenumerated Rights Clauses. . . . . . . . . . . . . 289

II. ACADEMIC THEORIES REGARDING UNENUMERATED RIGHTS

CLAUSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292

A. Unenumerated Rights Clauses as Canons of Constitutional

Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292

B. Unenumerated Rights Clauses as Inert Constitutional

Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294

C. Unenumerated Rights Clauses as Robust Caches of Rights. . . 295

III. STATE CONSTITUTIONAL INTERPRETIVE METHODS IN

UNENUMERATED RIGHTS CLAUSE CASES . . . . . . . . . . . . . . . . . . . . 299

A. Find Appropriate Sources of Fundamental Rights Within the

Unenumerated Rights Clause. . . . . . . . . . . . . . . . . . . . . . . . . 299

B. Interpret State Constitutional Issues Distinctly from the

Federal Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302

1. Rationales for Distinct Interpretation . . . . . . . . . . . . . . . 303

2. Consequences for Distinct and Indistinct Interpretation. . 305

C. Order State Constitutional Issues First in Judicial Opinions. . 307

IV. GEORGIA’S “BOUNDED NINTH” AND APPROACH TO

UNENUMERATED FUNDAMENTAL RIGHTS . . . . . . . . . . . . . . . . . . . . 309

282 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 19:281

A. Recognized Georgia Fundamental Unenumerated Rights:

Parental and Privacy Rights . . . . . . . . . . . . . . . . . . . . . . . . . 310

B. Issue of the Common Law as a Source of Georgia

Fundamental Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

C. Georgia Constitutional Interpretation and Implications for

Unenumerated Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316

INTRODUCTION

Interpreting enumerated constitutional rights is often simple because of their

relatively definite nature. When enumerated rights are invoked, judges possess

sufficient material to properly define their scope: cogent seminal cases, volumi-

nous evidence of original public meaning, and the text of the document itself.

Unenumerated rights lack these supporting materials. Instead of individual expli-

cation, they fall within an unenumerated rights clause, a constitutional provision

that recognizes that citizens possess rights not categorically protected within the

constitution addressed. Most American state constitutions structure the clause as

a catchall provision following an often extensive list of enumerated rights,

1

lead-

ing many to spurn the clause as a mere interpretive directive

2

or an unenforceable

constitutional provision due to its lack of precision.

3

Others interpret open-ended

unenumerated rights clauses as offering opportunities to craft new privileges

through judicial opinions.

4

Additional hurdles in balancing rights protection against rights invention arise

in the context of state constitutional jurisprudence. As sovereigns operating

within a federal system, states—through their judges—must determine to what

extent their state constitution’s unenumerated rights clause preserves liberties

in conjunction with the federal constitution, despite the dearth of state-specific

interpretive materials. Most legal scholarship in this field, scant as it may be,

focuses on the federal unenumerated rights clause within the U.S. Constitution:

the Ninth Amendment.

5

Although state supreme courts must nest their state

constitutional interpretations within federal constitutional law, the limited fed-

eral unenumerated rights precedents that exist muddle the legal basis for pro-

tecting the right at issue by shallowly adopting a number of inconsistent legal

theories. Notwithstanding this imprecise constitutional guidance, this Note

1. See, e.g., MONT. CONST. art. II, § 34 (“The enumeration in this constitution of certain rights shall

not be construed to deny, impair, or disparage others retained by the people.”).

2. See infra section II.A.

3. See infra section II.B.

4. See infra notes 73–74 and accompanying text.

5. See U.S. CONST. amend. IX (“The enumeration in the Constitution, of certain rights, shall not be

construed to deny or disparage others retained by the people.”).

2021] REVIVING ELUSIVE RIGHTS 283