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.

Most Popular

White House

Why Tillerson Had to Go

Of all the abrupt comings and goings in this administration, the dismissal of Rex Tillerson is undoubtedly the most important — maybe one of the most important firings since Harry Truman fired Douglas MacArthur during the Korean War. By dismissing MacArthur, Truman drew a firm line between military and ... Read More
Politics & Policy

Hillary’s Other America

I am still chuckling at Hillary Clinton’s speech in India. Among the things she said: If you look at the map of the United States, there is all that red in the middle, places where Trump won. What that map doesn’t show you is that I won the places that own two thirds of America’s Gross Domestic product. ... Read More
Politics & Policy

Samantha Power Regrets

‘I’ve had a lot of bad ideas in my life,” former U.N. ambassador Samantha Power tells Politico. “Though none as immortalized as that one.” Wow. It’s a major concession. And what might “that one” be? Not standing idly by in the White House while Iranians protested a fixed election in 2009, then ... Read More