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.

Most Popular

U.S.

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More
Film & TV

Black Panther’s Circle of Hype

The Marvel Cinematic Universe (MCU) first infantilizes its audience, then banalizes it, and, finally, controls it through marketing. This commercial strategy, geared toward adolescents of all ages, resembles the Democratic party’s political manipulation of black Americans, targeting that audience through its ... Read More