By Ben Lenhart
The American Constitution protects two groups of individual rights. In the first group are those rights named in the Constitution, such as freedom of speech and the right to a jury trial. In the second, are rights that many consider fundamental, but which are not named in the Constitution, including the right to travel and the right to privacy.
While the line between the two groups isn’t always clear, rights in this second group are generally less secure because it’s up to the Supreme Court to decide whether they merit Constitutional protection. This article explores this second group including the Constitution basis for these “unnamed” rights and their future prospects in light of Supreme Court Justice Alito’s leaked draft opinion in the Mississippi abortion case (Dobbs v. Jackson Women’s Health).
Unnamed Rights vs. Named Rights
When the Constitution was ratified in 1788, it did not name most of our cherished rights. The theory was that there was no need to list these rights because they were—as stated in the Declaration of Independence—“unalienable,” and the Constitution created no power to take them away. Plus, any list would inevitably be incomplete, and listing some rights could suggest that other, unlisted rights were not as strong. In the end, those demanding a formal listing of rights won the debate, and the Bill of Rights was added to the Constitution in 1791. More than 20 specific rights are listed in the Bill of Rights, including famous ones like freedom of religion, the right to a free press and the right not to have your home searched by the police except with a lawful warrant, and more obscure rights like the right not to have a solider “quartered” in your home during peacetime.
Because these rights are listed in the Constitution, they can’t be eliminated except by amending the Constitution itself. Neither Congress nor the states have no power to deny these rights. To be sure, no right is absolute, and courts sometimes change the boundaries of these rights when deciding individual cases. But the core of each named right enjoys strong protection.
Unnamed Rights (sometimes called “unenumerated” rights) are less secure— it is up to the Supreme Court to decide which of these rights are protected by the Constitution. Over the past century, the court has identified a small number of unnamed rights, including the right to travel, the right to control your child’s education, the right to marry, the right to freedom of contract (recognized in the Lochner case in 1905, but then rejected by the court in the 1930s), the right to use contraception, and (at least as of the date of this article) the right to abortion. These unlisted rights are both similar to, and different from, listed rights. They are similar in that neither Congress nor the states can, on their own, take away unlisted rights, but they are different in that, unlike named rights, the Supreme Court can change them over time or even reject them altogether, without amending the Constitution.
A high-profile current example, if the leaked draft opinion by Justice Alito in the Mississippi abortion case were to become final, then the Constitutional right to abortion, first recognized in 1973 in Roe v Wade, would be abolished. (Eliminating the Constitutional right to abortion would not mean the right is eliminated altogether—at least not under Alito’s draft opinion—but its fate would then be in the hands of the states and Congress).
History Impacts our Rights Today
Taking a step back, since these unlisted rights are not named in the Constitution, where do they come from? What justifies them? The answer lies in history.
In January 1215, a group of English barons confronted King John and asked that he recognize certain fundamental rights. Among those was the great right of due process. The barons demanded that the crown not imprison them or take their property without first following the customary legal procedures that were “due” to them. Six months later, at Runnymede, the king agreed to the barons’ demands and signed the Magna Carta, a document that would later influence the American Constitution. America’s Declaration of Independence states that “we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights …” The Due Process clauses of the 5th and 14thamendments—echoing the Magna Carta more than 500 year earlier—guarantees that we cannot be deprived of “life, liberty or property” without due process. The word “liberty” in that famous clause often serves as a source for unlisted rights. Finally, the 9th Amendment states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
These historical sources point to inherent rights retained by the people that no government can rightfully take away, and these inherent rights are not limited to the rights expressly named in the Constitution. This leads to the million-dollar question: If certain fundamental rights are not named in the Constitution, how do we know what those rights are?
Which Unlisted Rights are Protected by the Constitution?
The power to name unlisted rights protected by the Constitution is enormous and dangerous. Used unwisely, judges might fail to recognize true fundamental rights and instead grant “fundamental right” status to lesser rights that they favor merely for personal or political reasons. The Supreme Court holds this awesome power and recognizes (most of the time) that it must be used with great caution.
In his draft opinion, Justice Alito referred to the power as “treacherous” and said that if the court is not careful with the power it can fall into ”freewheeling judicial decision-making.” This is not to say the court does not make mistakes with this power, but at least it recognizes the danger, as reflected in the small number of unlisted rights that the Constitution has recognized over the last hundred years. The Court has developed several tests (sometimes overlapping) to limit their own power in this arena.
Test 1: Originalism. Justice Alito’s draft abortion option (and it is only a draft option) relied on what is often called “originalism,” where one looks to the historical record to determine if an unlisted right should be protected by the Constitution. As Alito put it: The question is whether this right “is deeply rooted in the nation’s’ history and tradition” and “implicit in our concept of ordered liberty.” Alito’s draft canvased history at the time the 14th amendment was ratified (1868) to determine whether the right to abortion is “deeply rooted” in our history. He concluded it was not. Supporters of originalism argue that it serves as an important check on the powers of the court to find new rights, and prevents it from acting as a legislature. Critics argue that originalism can sometimes be unhelpful given the significant changes that have occurred since the Constitution was ratified in 1788, including the banning of slavery (the 13thAmendment, 1865), extending the right to vote to women (the 19th Amendment, 1920) and desegregation (Brown v. Board in 1954, and the 1960s civil rights laws). The originalism debate is one of the central debates in Constitutional law and shows no sign of abating..
Test 2: Penumbras. In the Griswold case (1965), where the court confirmed the Constitutional right of married couples to use contraception, the court looked to the shadows or “penumbras” of named rights to help define unnamed rights. For example, free of speech necessarily implies the right distribute and receive speech. While the latter are not listed rights, the “penumbra” of free speech supports the conclusion that they are also Constitutionally protected rights. While the penumbra approach helps limit the court’s discretion to recognize new unlisted rights, critics note that shadows are often hard to see into in order to know what rights exist in the penumbras.
Test 3: Modern Ideas of Fundamental Liberty. In the Casey case (1992), which upheld the right to abortion 19 years after Roe, the court described “a realm of personal liberty which the government may not enter.” The Casey court rejected rigid originalism, saying that neither the Bill of Rights nor “specific practices of the States at the time of ratification of the 14thAmendment” impose a hard and fast limit on the unnamed rights protected by this “a realm of personal liberty.” Instead, the Casey Court sought to define this realm by examining more recent understandings about what rights form the essence of liberty. Casey noted that abortion was a particularly complex example of an unlisted right because not only did the court have to consider a “woman’s liberty,” which Casey saw as a basis for the right to abortion, but also the state’s “legitimate interest in promoting the life or potential life of the unborn.” In the end, using different tests, Casey and Alito’s draft come out on opposite sides of the question of whether abortion is among the small set of unlisted rights protected by the Constitution.
Most Americans greatly value on our unnamed rights and want them to remain protected under the Constitution. Overall, the court agrees, and unnamed rights as a category remain secure. But both “We the people” and members of the court disagree on the key question about which unnamed rights—such as abortion—merit constitutional protection. Americans should closely watch whether Alito’s draft opinion becomes final (and in what form), and whether that opinion is a one-time event, or a harbinger for the fate of other unnamed rights.
On Friday, June 17, Ben Lenhart will give a talk on this subject as part of the Eat, Drink & Be Literary! program at the Hillsboro Old Stone School. For details and tickets, go to hillsboropreservation.org.
[Ben Lenhart is a graduate of Harvard Law School and has taught Constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]