Document Type

Article

Comments

120 Yale Law Journal 1734 (2011)

Abstract

This Feature is an adaptation of chapter 3 of a forthcoming book, America's Unwritten Constitution, which in turn is a sequel to a 2005 book, America's Constitution: A Biography. The 2005 book explores America's written Constitution in considerable detail, taking readers on a journey that begins with the Preamble and proceeds through the document, Article by Article and Amendment by Amendment. The sequel invites readers to venture beyond the written Constitution by exploring aspects of America's constitutional order that are not expressly enumerated within the four corners of the document. The unifying theme of America's Unwritten Constitution is that there exist various approaches to American constitutionalism that supplement the terse text without supplanting it - nontextual interpretive methods and techniques that harmonize with the text itself. Chapter 3 of this forthcoming book -the foundation of this Feature - explores the domain of unenumerated rights. Although such rights are by definition not expressly listed in the terse text, the written Constitution signals their existence and provides broad guidance about where and how to find these rights. One of the most obvious places where these rights are to be discovered is in the lived practices and beliefs of the American people themselves. Another source of these "lived" rights is where Americans live: their homes. While privacy rights embody some of America's most notable examples of "lived" constitutional entitlements, this Feature places privacy examples alongside case studies drawn from criminal procedure and property law to illustrate the range, power, and limits of one general way of thinking about unenumerated rights. Whether the underlying (and underspecified) constitutional text is the Fourth, Fifth, Sixth, Eighth, Ninth, or Fourteenth Amendment, or some combination thereof, faithful constitutional interpreters properly attend to the expectations and practices of ordinary Americans who claim certain basic rights even though the terse text does not explicitly list these rights.

Date of Authorship for this Version

2011

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