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That's Not in the Constitution! Basic Rights Not Spelled Out in the Constitution

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Innocent until Proven Guilty:

American courts treat accused criminals as innocent until proven guilty; this ensures that they are accorded all the rights they are due. There is nothing in the Constitution about a right to be treated innocent until proven guilty, though. The concept comes from English common law, and several parts of the Constitution, such as the right to remain silent and the right to a jury trial, only make sense in light of a presumption of innocence; without this presumption, what’s the point?


The Right to a Fair Trial:

There is nothing in the Constitution about a “right to a fair trial.” The Constitution lists several trial-related rights, such as the right to a jury trial and that a trial should be held where the crime occurred; yet if the state could give you a trial that is unfair without violating those explicit rights, then the letter of the Constitution would not be violated. Once again, though, the rights which are listed make no sense unless trials are supposed to be fair in the first place.


Right to a Jury of Your Peers:

Many people imagine that they have a right to tried in front of a jury of their peers, but there is nothing in the Constitution about that. As with “innocent until proven guilty,” this concept comes from English common law. The Constitution only guarantees a trial before an impartial jury in criminal cases, not that the jury you’re tried before has anything to do with you. It would be too difficult to even define who your peers are, much less get a jury of peers for every individual defendant.


The Right to Vote:

How can a country be democratic if there is no right to vote? The Constitution lists no such explicit right, as it does with speech or assembly. It only lists reasons why you can’t be denied the ability to vote — for example, because of race and sex. It also lists some basic requirements, such as being 18 or older. Voting qualifications are set by the states, which can come up with all sorts of ways to deny people the ability to vote without violating anything stated in the Constitution.


The Right to Travel:

Many think that they have a basic right to travel where they want, when they want — but there is nothing in the Constitution about a right to travel. This was no oversight because the Articles of Confederation did list such a right. Several Supreme Court cases have ruled that this basic right exists and that the state can’t interfere with travel. Perhaps the authors of the Constitution thought that the right to travel was so obvious that it didn’t need to be mentioned. Then again, perhaps not.


Judicial Review:

The idea that the courts have the authority to review the constitutionality of laws passed by legislatures is firmly entrenched in American law and politics. However, the Constitution does not mention “Judicial Review” and does not explicitly establish the concept. The idea that the judicial branch could be any kind of check on the power of the other two branches is baseless without this power, though, which is why Marbury v. Madison (1803) established it. Or were these just activist judges?


The Right to Marriage:

Heterosexuals seem to take it for granted that they have a right to marry whom they want; there is no such right in the Constitution, however. The Constitution says nothing at all about marriage and the regulation of marriage is left to the states. In theory, a state could ban all marriages, or all interfaith marriages, without violating anything explicitly stated in the Constitution. Equal protection of the laws must be maintained; otherwise, marriage can be restricted in lots of ways.


The Right to Procreate:

People may also assume that as with marriage, they have a right to have children. Also as with marriage, there is nothing in the Constitution about procreation. If a state banned procreation, required licenses for procreation, or selectively banned procreation for people with mental disabilities, physical disabilities, or other problems, nothing in the Constitution would automatically be violated. You have no explicit Constitutional right to procreate.


The Right to Privacy:

Whenever people complain about courts creating new rights that aren’t in the Constitution, they are usually talking about the right to privacy. Although the Constitution doesn’t mention any right to privacy, several passages imply such a right and many court decisions have found a right to privacy in different aspects of human life, such as contraception the education of children. Critics complain that courts have invented this right for political purposes.


Reading and Interpreting the Constitution:

Debates about whether some particular right is “in” the Constitution or not are really debates about how to read and interpret the Constitution. Those who claim that the Constitution doesn’t say “right to privacy” or “separation of church and state” are relying upon the assumption that unless a particular phrase or specific words actually appears in the document, then the right doesn’t exist — either because the interpreters are drawing invalid implications or because it’s illegitimate to go beyond the exact text at all.

Given how rare it is for the same people to argue that the implications being drawn are not valid, the latter of the two options is almost always the case. These same people who reject interpreting the text beyond its literal, specific language are also often the ones who resist interpreting the Bible beyond its literal language. They are literalists when it comes to their religious scriptures, so it’s not a surprise that they are literalists when it comes to legal documents.

The validity of this approach to the Bible is debatable; it’s not, however, an appropriate approach to dealing with the Constitution. Interpretation of laws should generally be limited to the plain text, but the Constitution isn’t a law or a set of laws. Instead, it’s a framework for the structure and the authority of the government. The main body of the Constitution explains how the government is set up; the rest explains the limitations on what the government is permitted to do. It can’t be read without being interpreted.

The people who sincerely believe that constitutional rights are limited solely to those spelled out in the text of the Constitution must be able to defend not just the absence of a right to privacy, but also the absence of constitutional rights to travel, a fair trial, marriage, procreation, voting, and more — not every right which people take for granted has been discussed here. I don’t think it can be done.

 

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