Implied Rights

Implied rights are those that are not explicitly mentioned in the U.S. Constitution, but have been recognized by the Supreme Court. At least since the 1928 case of Olmstead v. United States, 277 U.S. 438 (1928), some justices on the Court sought to recognize rights that could reasonably be implied from rights specifically listed in the first eight amendments of the Constitution. For example, the First Amendment guarantees that Congress will not make laws that prohibit ‘‘the right of the people peaceably to assemble, and to petition the government for a redress of grievances.’’ How can people organize to assemble or petition for redress of grievances if they are not also assured of the right to associate? The two rights that are listed imply that a freedom of association also exists. This logic has been extended, not without controversy, to a number of other ‘‘rights’’ that are not enumerated in the Bill of Rights.

States retained the ‘‘police powers’’ or the power to regulate for the health, safety, and general welfare; as a result, most Criminal Laws and others statutes that affect health, marriage, education, sexual behavior, and family are made by states. Therefore, the Fourteenth Amendment has frequently become the vehicle for determining what rights are implied as part of preserving due process of law.

Using one theory of interpretation for the due process clause in the Fourteenth Amendment—that of selective incorporation first articulated by Justice Benjamin Cardozo in Palko v. Connecticut, 302 U.S. 319 (1937)—those rights that are ‘‘implicit in the concept of ordered liberty’’ or rank as ‘‘fundamental principles of ordered liberty and justice which lie at the base of all our civil and political institutions’’ are protected by the Fourteenth Amendment’s due process clause. Justice Cardozo intended that this criterion could be used to differentiate between rights that are important from those that are not, such as indictment by a grand jury. Yet, some rights that everyone would agree are fundamental in a democracy, such as the right to vote, are not listed in the Bill of Rights. Surely the right to believe must be cognate to the rights to free exercise of religion and freedom of speech.

A number of implied rights have been recognized as protected by virtue of the due process clause of the Fourteenth Amendment. Among them are the right to travel, the right to marry and have children, the right to association, the right to study a foreign language, the right to educate one’s children, and the right to privacy. As early as 1867, the right to travel interstate was recognized by the Court in Crandall v. Nevada, 73 U.S. 35 (1867), as implied by the term ‘‘liberty’’ in the Fifth Amendment. Nearly a century later, the right to travel internationally was incorporated through the Fourteen Amendment in Kent v. Dulles, 357 U.S. 116 (1958), and recognized in Shapiro v. Thompson, 394 U.S. 618 (1969). In the latter case Justice William Brennan, writing for the Court, stated that it was unnecessary to ‘‘ascribe the source of this right to travel interstate to a particular constitutional provision;’’ the right to travel was fundamental to the concept of a federal union.

A long list of unenumerated rights was recognized as early as 1923, when the Court struck down a Nebraska statute that banned the teaching of any language other than English until high school. Justice James Clark McReynolds, writing for the majority in Meyer v. Nebraska, 262 U.S. 390 (1923), spoke expansively of the broad contours of the term ‘‘liberty.’’ He wrote,

It denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience and to enjoy those privileges ... essential to the orderly pursuit of happiness by free men.

The right to educate children according to parental wishes was subsequently acknowledged as an implied right in the case of Pierce v. Society of Sisters, 268 U.S. 510 (1925). In Pierce the Court invalidated an Oregon statute requiring that students up to the age of sixteen could only attend public schools. A right to association was incorporated into the meaning of the Fourteenth Amendment’s due process clause in 1958 by NAACP v. Alabama, 357 U.S. 44 (1958), and the right of belief was acknowledged by the 1943 decision in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).

Perhaps the most controversial of the implied rights that the Court has recognized are those associated with the right to privacy. The so-called ‘‘right to be left alone’’ as the essence of privacy was asserted by Justice Louis Brandeis in his dissenting opinion in Olmstead v. United States in 1928. The Brandeis formulation did not win the support of a majority of the Court until 1965 in the majority opinion of Justice William O. Douglas in the case of Griswold v. Connecticut, 391 U.S. 145 (1965). Justice Douglas listed the various unenumerated rights discussed here previously and then proposed that a right to privacy could be found within the penumbras of a number of explicit rights.

The rights of association, to not have soldiers quartered in one’s home, and to be protected from unreasonable searches and seizures and against selfincrimination all implied a right of privacy. Moreover, he asserted that the Ninth Amendment’s statement that the enumeration of rights in the Bill of Rights ‘‘shall not be construed to deny or disparage others retained by the people’’ surely protected marriage and its intimacies from governmental intrusion. Though Griswold specifically addressed the ability of married couples to obtain and use contraceptive devices, it is regarded as having acknowledged the right to privacy.

The right to privacy in Griswold was later and more controversially used to protect a woman’s right to have an abortion. In the 1973 case of Roe v. Wade, 410 U.S. 113 (1973), Justice Harry Blackmun’s opinion for the seven-justice majority traced the right of privacy to a long list of cases. Justice Blackmun refused to link the right in any single amendment, but rather argued that the Fourteenth Amendment’s ‘‘concept of personal liberty and restrictions upon state action ... is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.’’

Justice Blackmun balanced a woman’s right to choose an abortion against legitimate interests of the state and employed a trimester formula to reconcile the competing interests. He accorded the woman and her attending physician the decision during the first trimester, but acknowledged a progressively more significant role for the state to regulate to preserve maternal health in the second trimester and even to prohibit abortion to protect the health of the mother in the third trimester of pregnancy. Subsequently, a number of state laws that placed barriers to a woman’s ability to terminate her pregnancy were invalidated and approximately an equal number were upheld. Despite changes in public opinion, political climates, and personnel on the Court, the essence of Roe v. Wade has not been overturned.

MARY L. VOLCANSEK

Cases and Statutes Cited

• Crandall v. Nevada, 73 U.S. 35 (1867)
• Griswold v. Connecticut, 391 U.S. 145 (1965)
• Kent v. Dulles, 357 U.S. 116 (1958)
• Meyer v. Nebraska, 262 U.S. 390 (1923)
• NAACP v. Alabama, 357 U.S. 44 (1958)
• Olmstead v. United States, 277 U.S. 438 (1928)
• Pierce v. Society of Sisters, 268 U.S. 510 (1925)
• Roe v. Wade, 410 U.S. 113 (1973)
• Shapiro v. Thompson, 394 U.S. 618 (1969)
• West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)