Unenumerated Rights

• Author: Jeffrey Lehman, Shirelle Phelps

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Rights that are not expressly mentioned in the written text of a constitution but instead are inferred from the language, history, and structure of the constitution, or cases interpreting it.

Typically, the term unenumerated rights describes certain fundamental rights that have been recognized by the U.S. Supreme Court under the U.S. Constitution. In addition, state courts have recognized unenumerated rights emanating from the principles enunciated by their own state constitutions. No comprehensive list of unenumerated rights has ever been compiled nor could such a list be readily produced precisely because these rights are unenumerated.

Nevertheless, a partial list of unenumerated rights might include those specifically recognized by the Supreme Court, such as the right to travel, the right to privacy, the right to autonomy, the right to dignity, and the right to an ABORTION, which is based on the right to privacy. Other rights could easily be added to this list, and no doubt will be in the future. In WASHINGTON V. GLUCKSBERG, 117 S. Ct. 2258 (1997), the Supreme Court ruled that there is no unenumerated constitutional right to die.

Unenumerated rights commonly are derived through a reasoned elaboration of express constitutional provisions. The FIRST AMENDMENT, for example, guarantees FREEDOM OF SPEECH but says nothing about the nature of the speech protected. Through the process of interpretation, the Supreme Court has held that the Free Speech Clause protects both verbal and nonverbal expression, as well as communicative conduct. The right to engage in offensive symbolic expression, such as flag burning, forms an essential part of the freedoms contemplated by the First Amendment, freedoms that are integral to maintaining an open and democratic society (TEXAS V. JOHNSON, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]). Judicial protection of such unenumerated rights, the Court has reasoned, helps establish a PENUMBRA or buffer that insulates expressly enumerated liberties from governmental encroachment.

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Courts are ordinarily reluctant to recognize new unenumerated rights. Most judges are sensitive to accusations of "inventing" new liberties out of whole cloth. Critics charge that judges who recognize new unenumerated rights are imposing their personal values on the law, rather than faithfully interpreting the text of the Constitution. The role of judges, these...