Welcome back. Let's take a look at this picture over here, and think about our constitution. There's nothing explicit in the written constitution that specifies a right to have a pet dog, or to relax on one's porch. To raise one's children. To, play the fiddle. To, wear a hat. To, enjoy family life. And the privacy of, of one's home. The, the written Constitution does not specify any of these rights with great particularity. And yet these rights are, rank among the basic rights of Americans. They are protected by courts. These unlisted, unenumerated, unwritten rights are protected by courts. And are rarely interfered with, messed with, by ordinary governments except in unusual situations involving some extraordinary or compelling government interest justifying the intrusion. So, what's up with that? How is it that we have all these unwritten rights? That's what, the question I'd like to explore with you in this lecture and the next one. There are constitutional texts that signal the written constitution signals that when it comes to rights, the listing, the enumeration, the writing is incomplete. Let me read to you from the Ninth Amendment. The enumeration in the constitution of certain rights, that is the textual listing. That's what an enumeration is, a listing. The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people. So apparently these, these other rights that are retained by the people that aren't necessarily enumerated, written, specified, textual. So that's great, the Ninth Amendment suggests that there are these other rights, unfortunately it doesn't give us a lot of explicit guidance about how to find them. But it suggests that they, that they're out there, and that they shouldn't be denied or disparaged and disregarded. Given insufficient weight. Now, here's a, a key sentence from the 14th Amendment. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. So, again there's this seemingly sweeping, textual suggestion that there are privileges and immunities of citizens of the United States that, that are not supposed to be abridged. But not a lot of specific textual guidance about what those privileges and immunities are, or how to find them. And here's one suggestion, that in trying to figure out what the rights of the people are, we, in some way, need to look to the people. And to try to figure out what the, the rights of citi, the privileges and the news or citizens are, we need to pay attention to the citizenry. We've already developed a couple of techniques that helped us draw meaning from what the people have said, and, and done. And I'm going to introduce you to yet another technique in this chapter. But remember, we've already talked about the technique of reading the Constitution as a whole and finding implicit principles. And we've already talked abut the technique of paying attention to how Americans actually did ordain and establish and later amend their Constitution, and try to deduce principles from, from their very actions. So. For example, if a right is textually in the constitution, well it's got a connection to the people, because the people put it in there. We, the people, authorized the constitution and its amendments. And if in the process of adopting a certain constitutional text, we embodied certain ideas, like robust free speech, as we in fact did. We, the people, when we adopt the constitution, I would say that, that has an obvious connection to the people because the people, action, the process of adopting the constitution embodied free speech. So, so, that technique obviously is one way of flushing out this idea. Finding rights of the people. If the text doesn't explicitly, in the Constitution, affirm a right, but implicitly does so, well, since that text was authorized by the people, I think that people authorized the, not just the explicit right, but its implications. So, for example. Way back when we were talking about reading the Constitution as a whole, we used some structural examples about how the government is organized that may be pretty far from the question of individual rights. Question like whether the vice president could preside at his own impeachment trial. Or, whether a president was immune from a sitting president, from criminal prosecution. But those techniques that we developed can also be used to think about individual rights. Unenumerated rights. So remember, for example, we said, well surely if the vice president can't preside over the president's impeachment trial, because he would stand to gain in office, improperly, he shouldn't be able to preside over his own trial, where he stands to lose an office It follows a fortiori, we discussed. Even more strongly, if you can't preside over the president's impeachment trial you can't preside over your own impeachment trial. Now that wasn't a rights issue, that was a structure issue. But the same implicit principle applies. Let's take for example the 6th Amendment. It says that you have the right to compel the production of witnesses in your favor. Well surely, you could say, well since I have a right to compel a wit, a witness, I also have a right to put a witness on the stand who will support my, my case, even if the person testifies voluntarily. Or, let's take double jeopardy. You know, the Fifth Amendment says you can't be put twice in jeopardy. Well, surely, it follows for sure you can't be put three times in jeopardy, or four times in jeopardy. Let’s take we’ll, let’s go back to free speech and develop an implicit argument for free speech. I already told you about how free speech was part of the process by which the Constitution was adopted, an enactment argument. But, but the First Amendment says that even if Congress has passed a law authorizing the president to censor speech. Free speech prevails, because Congress shall make no law abridging freedom of speech. So if a president, even with a Congressional law, can't censor speech, it follows a fortiori, the argument might go and, I think does go, that the president on his own, without a congressional law, can't censor free speech. So certain rights, as I said, are kind of implicit in the textual enumeration and in that have a, a connection to the people, because the people authorized those textual rights. But now here's a totally different way of thinking about unenumerated rights. Also connecting them to the people, but in a different way. Not in the way of close reading, finding implicit rights. And not simply in the way of paying attention to history, how did the people adopt the Constitution. So, so we're going back to school together, you and I. And so we've done reading and we've done history, now let's do arithmetic. Let's count. Lets take account of and take a count of how ordinary people in their day to day lives actually, live them out, and in the process, embody rights that become basic American rights as a matter of custom and practice and, and consensus. Looking at what we do. Not we the people on the grand stage adopting or amending the Constitution. But, and we the people ordaining something in some momentous event, but, but we the people in ordinary moments. Not in ordainment, momentous actions but in ordinary moments, how we the people just kind of live out our lives in, in in daily ways. And we're going to come back to that. You know we, we play the fiddle, and we raise our children, and we have pets, and we relax on our porch. let's, let me begin actually by, by picking something from the criminal, some examples from the criminal justice system. And then I'll work my way forward and, and start talking about privacy rights in the home, and, and and at the, and then I'll come back maybe to, to some other, examples from the criminal. Suppose, here's a question. Where do you get the right to testify in, to take the stand in your own criminal case if you are a criminal defendant? Here's something that might startle you. But the constitution, the written constitution, doesn't guarantee you a right, doesn't explicitly say that you have a right to take the stand and defend yourself. And here's something even more dramatic or shocking, maybe, to some of you. At the time of the founding, no one in America had such a right. No federal criminal courtroom allowed defendants to testify, no state criminal courtroom at the time of the founding allowed criminal defendants to testify. The text says that you can't be compelled to testify in a case, but it doesn't talk about whether you have to be allowed to, and at the founding you weren't. And here was one of the reasons at the founding you weren't. Well, let me, before I tell you that. So, the founding, the text doesn't say so and no court lets you, and today that's a basic American right. Everyone in America has that. The Supreme Court unanimously believes that, left, right and center. Justice Alito's maiden, he's kind of on the right of the court, and his maiden opinion as a Supreme Court justice, he, he writes for the court an opinion that presupposes the basic right of Americans to testify in their own behalf. So what's up with that? How did we get that right? And that right is not controversial. You don't hear politicians railing against activist judges. You don't see any faction on the court saying well, this one, this one's made up. So how did we get that? And here's how. At the founding, actually, the prohibition on criminal defendants taking the stand was, was actually seen as a favor to the defendant. The idea was that if you were allowed to testify, you might feel pressured to testify, because if you didn't, maybe the jury would hold it against you. Well, if he's innocent, why isn't he taking the stand to say so? And so you'd feel kind of pressured to take the stand, in tension with this right not to be compelled to take the stand. And in addition, you might be tempted actually if you were guilty, to commit perjury. To lie about it. And if you did, well maybe you'd actually, you know, even if you saved your skin, you'd lose your soul, because you would have committed premeditated perjury and, and risked a punishment in the afterlife. And that that was actually maybe punishment for premeditated perjury might be sort of way worse than for the petty crime that you may have, have committed. Some sort of, unpremeditated assault or something. But now, because you have a natural instinct of self preservation in the courtroom, you actually told a lie, a premeditated lie, which is much worse. So the law itself would have led men into temptation. So as a favor to you, we're not going to let you testify. And, but, oh, by the way, this doesn't seem so weird at the founding, because no civil defendant can testift, no civil plaintiff can testify. No one who was interested, who had a stake in the case was allowed to testify. It was kind of like the rule that no one should be a judge in his own case. The thought was, just as no one should be a judge in his own case, no one should really be a a witness in his own case. If you have a stake, a dog in the fight, so to speak, you shouldn't be testifying. Well, as time passed, that understanding kind of began to change in the states. And by the time of the Civil War and shortly thereafter, in civil cases, civil defendants were allowed to testify, and civil plaintiffs were allowed to testify and now it starts to seem really weird. Well, gee, why shouldn't criminal defendants have the same rights as civil defendants. If juries can be trusted to sort out the, the conflicting stories, let everyone talk even if they're interested, and the jury can sort it out, if they can do that in civil cases, why not in criminal cases. If criminal defendants are supposed to have more rights than civil defendants, because their lives and limbs are on the line there, their reputations and, and honor if they are supposed to have more rights, than civil defendants. And when you read the constitution as a whole, it really does seem that they're supposed to have more rights. Gee, how can we let civil defendants testify and not criminal defendants. And so state after state begins to recognize a right of criminal defendants to testify as a matter of state practice, state statute state common law, state constitutional provisions. And then when enough states kind of joined that bandwagon, the US Supreme Court says, now, everyone has to do with it. That is an unenumerated right. So that's a kind of a counting story. As social practices changed, new rights were recognized, and the Supreme Court gave its blessing to these new unenumerated rights. Take proof beyond reasonable doubt. Proof beyond responsible doubt is not a phrase that you see in the original constitution. Its doesn't say so in so many words. It actually is a phrase that postdates the Bill of Rights and the 19th Amendment, that, it kind of emerges as a phrase on the scene, shortly after the Bill of Rights is adopted. But state after state after state recognizes this idea of proof beyond reasonable doubt that, that unless there's very strong evidence that someone has actually committed a crime, he shouldn't be convicted, and after states do this, the Supreme Court eventually says this, too, is an unenumerated right. So let's take rights, the right to produce reliable physical evidence of your innocence. The constitution doesn't quite say that you have a right, for example, to introduce DNA evidence, physical evidence, someone else Did it, but of course you have such a right. The, the whole purpose of a trial is to sort out the innocent from the guilty. That's the kind of argument about the implicit Constitution. The whole purpose of these criminal procedure provisions is to sort out the innocent from the guilty. And court after court you know in, in America daily, lets defendants show, introduce physical evidence of their innocence. It's part of the lived experience of America, even if it's not explicit. So, the text says only that you can't be compelled to testify against yourself. But you have all these unenumerated rights in the criminal justice system. To testify on your own behalf, even though the text doesn't say so and founding practice was to the contrary. To not be convicted unless there's proof beyond reasonable doubt, a phrase that postdates the Bill of Rights. To introduce reliable physical evidence of your, your innocence, even though the text doesn't say anything of the sort. So there are a whole bunch of criminal procedure provisions, and we don't read them narrowly and literalistically and say, that's it. We actually, in practice do justice to the idea that there are unenumerated, unwritten rights. And note one key thing, more rights are okay. Nevertheless, if the text says you have a certain right, then you have that right, and that can't be taken away merely because practices start to change. So, there's a, a ratchet here. Unenumerated rights, yes, unenumerated restrictions, on, on ancient liberties, not so fast. We put them in the text, then unless we amend them away, they're yours to stay. You know so it's, it's actually a good deal for the, the citizens, sort of. What's mine is mine, and what's yours is negotiable. These textual rights are here to stay, but there are additional unenumerated rights. So those are a few examples from the criminal justice system. Now let me take a, a phrase that some of you may have heard. It's a very weird phrase. It's a phrase that lawyers use a lot. And it confuses laypeople, and for a good reason. Because it's confusing. The phrase is, substantive due process. And that's a phrase you won't see in the written constitution. And for an obvious reason, that process is usually defined in contradistinction to, in to opposition to substance. So process or procedural rules like, do you have a jury trial, is there proof beyond reasonable doubt, what kind of evidence rules apply, and procedural rules apply in this trial. But substantive due process has been a phrase that judges have used to recognize rights that, that go beyond courtroom procedure. Probably the most famous substantive, or one of the most famous, substantive due process rights of the mid-twentieth century was a case called Griswold v Connecticut. And in that case, the Supreme Court invalidated a Connecticut law that made it a crime for even a married couple to use contraception in the privacy of their bedroom. And one of the best arguments for the correctness of that result came from a concurring opinion by a man named Justice Harlan, John Marshall Harlan II. His grandfather, John Marshall Harlan the elder, was also on the Supreme Court. The elder Justice Harlan was the great dissenter in Plessy v Ferguson, and wrote powerful opinions in many other cases. And what a name, John Marshall Harlan. Named after John Marshall, and then the first John Marshall Harlan was on the Court, and his grandson, John Marshall Harlan II was on the court in the middle of the 20th century, an Eisenhower appointee. And here's what John Marshall Harlan said. He was a kind of a conservative but he joined the liberal justices in, in the Warren Court, in Griswold vs Connecticut to invalidate this Connecticut law, and he basically said, this law is un-American. No other state other than Connecticut has interfered with the ability of a married couple to have conjugal relations in the privacy of their bedroom, it was a kind of counting thing. Look at the fifty states, no one else is doing it, Connecticut, you've got to get on board. And although he talked about the use, the phrase substantive due process, because earlier cases had used that phrase, I think it would have been better off if he had simply said, this is one of the privileges and immunities of citizenship that no state shall abridge. Even the word privilege is kind of connected to the idea of, of, of privacy in an interesting way. And privilege isn't narrowly about process rules, it can be substantive as well. That was in the mid-60s. In the early 70s, a case called Eisenstadt versus Baird broadened the principle. And in the middle of the sexual revolution when contraception had become very widely available, and ordinary, law abiding people are using contraception, even in the teeth of some laws that prohibit it, the court struck down those laws, saying, laws that make it a crime for even unmarried couples to buy contraceptives, not just to use them, but to buy them those laws are unconstitutional, because they're kind of inconsistent with the emerging social practices on the ground. We don't just read the framers' enumerated list of rights. We looked at unenumerated rights that ordinary people, ordinary law-abiding people are living out in their daily lives and ordinary law abiding people are using, married people, as well as married people, are buying contraception. So that was another example. More recently, the Supreme Court struck down laws that prohibit gays from and others from engaging in certain sexual behavior, anal sex, oral sex, in a case called Lawrence vs Texas. And the justices said, in this opinion Justice Kennedy writing for the court, among other things, he, he counted, he said, only 13 states have laws on the books that prohibit this kind of intimate consensual conduct in private, of those, only four target same sex conduct for special prohibition. And so only 13 are doing this now, and only four are targeting gays for disadvantageous treatment. Oh, and by the way, the laws on the books in these places are rarely enforced against consensual couples in private. And he explained why the laws, in fact, there were reasons why, even in the places where it was on, where this laws were on the books there were reasons why they were almost never enforced against private consensual conduct, but only in cases of, of forcible sexual activity, where, really, there, there wasn't consent, in private or where something happened in public and you where offending onlookers who, who, you know, who were intruded upon unreasonably because you took it out in public rather than kept it in private. So, in Lawrence v Texas, Justice Kennedy plays a counting game and says, these laws are basically becoming un-American, and we hold them unconstitutional because they're inconsistent with the lived experience of, of law-abiding citizens. I, I'm, I would predict that the court will eventually come to say something similar about gay marriage. Where, when gay marriage becomes prominent enough in enough states, a court will basically say it's now become part of the lived fabric of American life, and the few outlier states have to get on board. Here's what the court has not said. It hasn't said there's a right to medical marijuana, because the lived practice isn't there yet. Very few states have recognized such a right. Even though maybe it's a morally attractive right, the court isn't just doing a philosophy game, it's actually counting. There are some people that believe that you have a right to take, to end your own life if, if you if you are competent, and to enlist medical support for that. They make philosophical arguments that nothing could be more personal, none of the government's business, than when you choose to leave this world. But the Supreme Court hasn't endorsed that, and it hasn't, because it says, we looked at all the states, almost no state recognizes this right. This right is not part of the lived experience, the lived fabric of America. So, in a bunch of these substantive due process unenumerated rights cases, the court is actually counting. If it's in the text, it's protected. But if it's not in the text, the court basically looks to actual practices and counts. Now, there's one case where they didn't quite do that. And you might have heard the case. The obscure case of Roe versus Wade. And, in that case the court announced an abortion right in a very sweeping fashion. A right that, as the court announced it, actually was way out ahead of actual practice of the states. When Rowe came down, 49 of the 50 states actually, basically, were out of sync with the rules that Roe laid down. And Roe, perhaps for that very reason, has been extremely controversial, because it didn't merely track the lived experience of ordinary Americans state by state. Now, we're going to come back to Roe in later lectures, there's another argument in Roe other than substantive due process that might help us think about the, the abortion issue. It involves women's rights and women's equality. In fact there's going to be a whole chapter on women's rights a little bit down the line. So so we're not done with Roe v Wade. And nor are we done with our discussion of of unenumerated rights based on custom and practice. So in the next lecture, I'm going to come back to this picture, tell you a little bit more about privacy rights, rights in the home. And we'll also talk about cruel and unusual punishment, which involves courts doing the same kind of counting game that we've been talking about thus far, so stay tuned. [MUSIC]
