America's Lived Constitution

Home Sweet Home (1877) ¹

Nothing in the written Constitution explicitly guarantees the right to have a pet dog, to play the fiddle, to relax on your porch, to raise your children, or to wear a hat. Yet these and countless other liberties are generally observed by American governments, absent compelling reasons for abridgment. Many of Americans' most basic rights are simply facts of life: "This is the way we, the people, do things in America, and we therefore have the right to keep doing these things, if we please."

This Feature explores the constitutional status of these lived rights. ²


I.
 
"RIGHTS ... PRIVILEGES ... IMMUNITIES"
 
The Ninth Amendment proclaims that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." What exactly are these "other[]" rights? Where are they to be found and how are they to be enforced? What are we to make of the words "the people" in this Amendment?

Also, what about the Fourteenth Amendment? Its opening section declares that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens." Nowhere does this Amendment itemize these unabridgeable entitlements or specify where they are to be discovered. How should faithful interpreters read this pivotal provision? Which branch or branches of government should take the lead in defining Americans' basic rights, freedoms, privileges, and immunities? Should faithful interpreters safeguard the Amendment's unspecified privileges ...  

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