Akil Amar’s new book discusses many different components of the “unwritten” constitution. This Article looks specifically at the most common use of that term—the practice of striking down state and federal laws on the grounds that they violate “fundamental rights” not directly mentioned in the Constitution. Although the Court’s favored approach to finding unenumerated rights—so-called “substantive due process”—is neither historically supportable nor jurisprudentially coherent, other sources of unenumerated rights are more promising. The Ninth Amendment would support a jurisprudence of natural rights based on equitable interpretation, and the Privileges or Immunities Clause might support a jurisprudence of broadly accepted traditional rights.
The full text of this Article is available to download as a PDF.