Isabella Carter
Unenumerated rights are legal rights that are not expressly stated in law but are inferred from other rights that are implied by existing laws. In the United States, the Ninth Amendment to the U.S. Constitution protects against federal infringement of unenumerated rights. The text reads: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The Supreme Court of the United States has also interpreted the Fourteenth Amendment to protect against state infringement of certain unenumerated rights, including the right to marital privacy.
| Characteristics | Values |
|---|---|
| Country | United States |
| Amendment | Ninth Amendment |
| Purpose | Protects unenumerated rights not specifically listed in the Constitution |
| Text | "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparate others retained by the people." |
| Interpretation | The Supreme Court has interpreted the Amendment to protect against federal and state infringement of certain unenumerated rights, including the right to privacy in marriage, the right to send children to private school, and the right to travel. |
| Related Amendments | Fifth Amendment, Fourteenth Amendment, Tenth Amendment |
| International Examples | Article 22 of the Constitution of the Republic of China, Article 40.3 of the Irish Constitution, Canadian Bill of Rights |
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What You'll Learn
The Ninth Amendment
> The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Supreme Court has interpreted the Ninth Amendment to protect certain unenumerated rights, such as the right to marital privacy, the right to send one's children to private school, and the right to keep personal matters private. In Griswold v. Connecticut (1965), the Court cited the Ninth Amendment to support a right to privacy, which is not explicitly mentioned in the Constitution. The Court held that the Constitution protects penumbral rights of 'privacy and repose' that prevent states from prohibiting the use of contraception by married couples.
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Unenumerated rights in the US Constitution
Unenumerated rights are legal rights that are not expressly stated or "enumerated" in law. They are inferred from other rights that are implied by existing laws, such as in written constitutions. Unenumerated rights may become enumerated rights when certainty is needed, such as in federal nations where laws of subordinate states may conflict with federal laws. The term "unenumerated rights" may be used loosely to refer to any unstated natural rights, legal rights, or intrinsic human rights of an individual.
In the United States, the Ninth Amendment to the Constitution protects against federal infringement of unenumerated rights. The text reads:
> The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Ninth Amendment states that Americans have other, unwritten rights that are not spelled out in the American constitution. The Tenth Amendment limits the federal government's powers to the constitution's written laws. The Supreme Court has interpreted the Fourteenth Amendment to protect against state infringement of certain unenumerated rights, including the right to send one's children to private school and the right to marital privacy.
The Supreme Court has found that unenumerated rights include important rights such as the right to travel, the right to vote, and the right to keep personal matters private. State constitutions have also been interpreted to protect unenumerated rights, sometimes through provisions with similar language to the Ninth Amendment (often called "Baby Ninth Amendments") and sometimes through provisions with similar language to the Fifth and Fourteenth Amendments' due process clauses.
Unenumerated rights can become enumerated rights if they are added to the constitution. There is certainty surrounding enumerated rights, while unenumerated rights are uncertain. For example, in 1997, the Supreme Court ruled that there is no unwritten right to die in the United States.
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State constitutions and unenumerated rights
State constitutions have been interpreted to protect unenumerated rights, sometimes through provisions with similar language to the Ninth Amendment (often called "Baby Ninth Amendments"). Unenumerated rights are legal rights inferred from other rights that are implied by existing laws but are not expressly stated or "enumerated" in law.
The Ninth Amendment to the U.S. Constitution, for example, protects against federal infringement of unenumerated rights. It states that the enumeration of certain rights in the Constitution should not be construed to deny or disparage other rights retained by the people. The text reads:
> The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Supreme Court of the United States has interpreted the Fourteenth Amendment to protect against state infringement of certain unenumerated rights, such as the right to send children to private school and the right to marital privacy. The Court has also found that unenumerated rights include essential rights such as the right to travel, the right to vote, and the right to keep personal matters private.
State courts have interpreted unenumerated rights provisions to protect a variety of rights, including the right to earn a living, the right to establish a home, and the right to refuse medical treatment.
In Canada, the Supreme Court first proposed an implied bill of rights in 1938, recognising rights to freedom of speech, habeas corpus, and the presumption of innocence. However, this theory was never codified in legislation or the constitution. Similarly, Article 40.3 of the Irish Constitution refers to and recognises unenumerated rights.
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The Fourteenth Amendment
Unenumerated rights are legal rights inferred from other rights that are implied by existing laws in written constitutions but are not expressly stated or "enumerated" in law. In the United States, the Ninth Amendment protects against federal infringement of unenumerated rights.
The Supreme Court of the United States has interpreted the Fourteenth Amendment to protect against state infringement of certain unenumerated rights, including the right to send children to private school and the right to marital privacy.
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Unenumerated rights in Canada
Unenumerated rights are legal rights inferred from other rights that are implied by existing laws, such as in written constitutions, but are not expressly stated or "enumerated" in law. They may become enumerated rights when certainty is needed, such as in federal nations where laws of subordinate states conflict with federal laws.
In Canada, the Canadian Charter of Rights and Freedoms (the Charter) is the most important law and is part of the Constitution. The Charter came into force on April 17, 1982, and sets out the rights and freedoms that Canadians believe are necessary in a free and democratic society. The rights and freedoms in the Charter are not absolute and can be limited to protect other rights or important national values. For example, freedom of expression may be limited by laws against hate propaganda or child pornography.
The Charter establishes that English and French are the official languages of the country and have equal status and rights in all institutions of the Parliament and government of Canada. It also establishes the principle of advancement or progression of the equality of status and use of the official languages by Parliament or by the provincial legislatures. The Charter also ensures that everyone has the right to express their religious beliefs in public, as well as the freedom to not practice any religion.
Canadian citizens have the right to enter, remain in, and leave Canada, and the right to live or seek work anywhere in the country. The Charter protects everyone's reasonable expectation of privacy. It also gives some rights only to Canadian citizens, such as the right to vote and the right to enter, remain in, and leave Canada.
Prior to the advent of the Canadian Bill of Rights in 1960 and its successor, the Charter of Rights and Freedoms in 1982, Canadian laws did not provide much in the way of civil rights, and it was typically of limited concern to the courts. In the 1938 decision of Reference Re Alberta Statutes, a concurring opinion of the Supreme Court of Canada first proposed an implied bill of rights, which was never codified in legislation or in the constitution.
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Frequently asked questions
The Ninth Amendment to the U.S. Constitution protects unenumerated rights.
Unenumerated rights are legal rights inferred from other rights that are implied by existing laws, such as in written constitutions, but are not expressly stated or "enumerated" in law.
The Supreme Court of the United States has interpreted the Fourteenth Amendment to protect against state infringement of certain unenumerated rights, including the right to send children to private school and the right to marital privacy. The Court has also found that unenumerated rights include the right to travel, the right to vote, and the right to keep personal matters private.
The text of the Ninth Amendment states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Yes, state constitutions in the United States and the constitutions of other countries, such as Canada, the Republic of China (Taiwan), and Ireland, also recognize and protect unenumerated rights.
