Can You Watch Unenumerated Rights Drift
Mark Tushnet · Digital Access to Scholarship at Harvard (DASH) (Harvard University) · 2006
By this point in the Symposium, observers will have noticed the obvious; there is no category unenumerated rights.Indeed, there cannot be such a category if we think that an analytic category must have some reasonably stable content.The whole point of the so-called category is to give us a conceptual tool to use when thinking about rights that you can't find anywhere else, no matter how hard you look.But, if you can't find them anywhere else, it's not entirely clear what "they" might be.Or, more precisely, anythin can count as an unenumerated right.Consider Bowers v. Hardwick and Lawrence v. Texas. 2 Justice Byron White was surely correct in asserting that there is no enumerated right to homosexual sodomy in the Constitution , but Justice Anthony Kennedy was equally correct in asserting that there was an enumerated right to liberty in the Constitution.4 What, then, might we think about when dealing with the category unenumerated rights?We could begin by observing that the term is used in constitutional discourse by, as the phrase goes, competent speakers.What we might do, then, is try to figure out what the term is doing in that discourse, not in the sense, "why on earth are they using that term?" but in a sense more like, "what are they getting out of using it?"5 People will go about answering such a question in their own ways, and I do not contend that mine is the only correct one, but for me the sensible approach to an answer comes through historical and political analysis.In this short essay I do not plan to provide an extensive genealogy of the term unenumerated rights, but will instead be more allusive than comprehensive.