Unenumerated Rights

Linda Greenhouse says that Roberts will be asked whether he believes that there are unenumerated rights in his confirmation hearings. The theory is that this question is about the "so-called" right to privacy.

But if the question is asked this way, i.e., "unenumerated rights," then it's really a stupid question. Because the Constitution itself says that we have unenumerated rights, in the Ninth Amendment. (It just doesn't say what they are, because, er, they're unenumerated.)

Plus, even if there wasn't a Ninth Amendment (and, let's be honest, it's pretty much a useless amendment), there would still be unenumerated rights. Here's an example: nothing in the Constitution specifically says that you have a right against prosecutorial misconduct, or a right against jury tampering (or even juror intimidation). Check it out, it's not in there. But I don't think even CL would say that it wouldn't raise serious due process concerns for a prosecutor to state, repeatedly before the jury, his conviction of the defendant's guilt; for a prosecutor to comment on inadmisible evidence before the jury; for a prosecutor to make ex parte communications with jurors during a criminal case, or to threaten jurors will criminal sanctions if they failed to return a guilty verdict.

Why would such things raise constitutional questions? They're not listed in the bill of rights. But these are clearly unenumerated rights, implicit in the idea of due process as a system of "fair play," of "ordered liberty."

Here's another example. Let's say that a state government decided that, because of overpopulation and the burdens imposed on the public education and health care systems, each family would be limited to one child. Period. Such an act would clearly be unconstitutional, although Roberts and those who deny the existence of a right to privacy, implicit in the idea of ordered liberty, would have a hard time saying why.

The issue really isn't whether there are unenumerated rights, or really even whether the due process clause, as it exists today, has substantive as well as procedural aspects. No one is arguing that Griswold or Rochin was wrongly decided. The issue is abortion, whether substantive due process rights to privacy are broad enough to protect a women's right to terminate her pregnancy. The issue is not "unenumerated rights," or even, again, judicial philosophy. The issue is a particular policy.

But again, people get confused by the fancy rhetoric that they throw up in response to a particular decision of the Court. Instead of just focusing on the policy outcomes that they disagree about, they construct elaborate theories of the meaning of the Constitution, and then we conduct a second-order argument about that nonsense as opposed to the first-order issue driving the debate.