The Pernicious Notion of “Unenumerated Rightsâ€MARCH 12, 2019 BY MARK PULLIAM
The recent 60 Minutes segment on Juliana v. United States, the lawsuit now pending in an Oregon federal court, in which environmental activists assert a constitutional right to be free from climate change, perfectly illustrated Sen. Josh Hawley’s concern about federal judges who embrace the doctrine of “substantive due process.†Many Americans properly scoff at the idea that there are constitutional rights to things that are not actually set forth in the Constitution, such as the “right to a climate system capable of sustaining human life,†as Judge Ann Aiken, appointed by President Bill Clinton, ruled in Juliana. But once judges free themselves of the constraints of constitutional text, anything is possible: the “right†of a convicted murderer to have a sex-change operation at taxpayer expense, the “right†to same-sex marriage (Obergefell), the “right†to an abortion (Roe v. Wade), and so on, ad infinitum, ad nauseum.
Perhaps some activist judge in California or another rogue state will rule that the Green New Deal is required by the Constitution. This is not mere idle speculation. With the encouragement of a progressive professoriate, the body of judge-made constitutional law now abounds with so-called “unenumerated†(or unwritten) rights, a polite way of describing the process of pretending that the Left’s desired policy outcomes are dictated by the Constitution—and therefore enforceable by federal judges—when in fact they are not. Judicial activism—concocting phony constitutional rights–is a serious threat to representative self-government, yet is rarely discussed even though it occurs in plain view on a daily basis in federal courtrooms across America.
The topic of constitutional law tends to become the exclusive domain of lawyers and academics, because it is perceived to be too technical for the informed layman to understand. Unfortunately, the resulting lack of transparency and public engagement has allowed this vitally-important subject to be hijacked by obscurantists with their own agenda—aggrandizement of the judiciary and implementation of a leftist political agenda. For decades—beginning during the New Deal, but accelerating dramatically under the Warren Court in the 1960s—the Supreme Court has simply invented many “rights†that do not actually appear in the Constitution, in the process granting the federal government sweeping powers that the Founding Fathers never intended.
The federal courts, comprised of unelected, life-tenured judges often drawn from the progressive ranks of Ivy League law schools, have arrogated to themselves control over many political decisions that once were, and properly should remain, the exclusive province of the states. Invoking a few inapt phrases out of context—especially “due process†and “equal protectionâ€â€”our black-robed masters have constructed an edifice of constitutional law that bears little resemblance to the document written by the Founding Fathers in Philadelphia in 1787. A constitutional system whose authority derives from “we the people†has become instead a swollen behemoth—a Leviathan. The Framers’ vision of a decentralized and self-governing republic has been lost in the fetid swamp of Washington, D.C.
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