Bench Memos

Re: Does the Constitution Protect Unenumerated Rights?

Paul Sherman’s response is indeed unsatisfactory, though not for the reasons he imagines. Sherman “believe[s] it is fair to say that Whelan thinks the Constitution doesn’t empower judges to protect unenumerated rights.” But whether the Constitution protects “unenumerated rights” depends on what one means by that vague term. It strikes me as quite plausible, for example, that the Privileges or Immunities Clause, properly construed, does protect some substantive economic rights, and I’m entirely open to the proposition that it or other provisions of the Constitution protect the various other rights that Sherman labels “unenumerated.”

From what I can tell, the “fundamental” difference between Sherman’s approach and mine is that Sherman is eager to leap from the proposition that “unenumerated rights” exist to the conclusion that judges have unconstrained authority to invent whatever rights advance his policy agenda, whereas I expect advocates of the exercise of judicial power to make actual arguments that demonstrate that the Constitution supports that exercise.

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