Unenumerated rights are liberties that are not specifically listed in the Constitution or the Bill of Rights but that are nonetheless acknowledged to exist and to be protected against government intrusion. On The Bob Zadek Show, guests and host returned repeatedly to the question of where such rights come from, how courts identify them, and what happens when the method of identification changes.
Economic rights as unenumerated rights
Bob Zadek introduced the concept by distinguishing the civic rights Americans recite from memory—free speech, assembly, religion, freedom from unreasonable searches and seizures, and protection against cruel and inhuman treatment—from “another branch of rights” that are not specifically mentioned in the Constitution or the Bill of Rights. He identified these as economic rights: freedom of contract, the right to sell whatever one wants at a fair price absent crime or fraud, and what he called free labor. He observed that these rights have become “subordinated, if not totally written out of our system,” citing the minimum wage as an example Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Damon Root agreed that economic rights had achieved “a sort of second-class status in the hierarchy,” and said that was not always the case. During the progressive and New Deal periods, he said, courts regularly struck down economic regulations as violations of economic rights. Root traced the idea to the 14th Amendment and to the free labor philosophy of the abolitionists and radical Republicans who ratified it in 1868. He described the underlying principle as individual self-ownership and ownership of the fruits of one’s labor, limited by harm to others—one may not build a nuclear reactor in one’s basement because it could harm a neighbor, but a person who wants to drive a taxi cab should not face burdensome licensing processes. Root argued that courts should protect these rights at the same level as freedom of speech and free association Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Root dated the change to what legal scholars call the New Deal constitutional revolution of 1937 and 1938, followed by a series of Supreme Court cases in the early 1940s. In his account, the Court backtracked on its former protections of economic liberty and said it would defer to regulators, lawmakers, government officials and bureaucrats, treating economic rights as if they may exist but receive very little respect and attention. He said the courts have acted as “a sort of a rubber stamp in favor of the regulatory state since the end of the New Deal” Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014). Bob Zadek framed the conflict as economic rights crashing into economic regulation, which he said grew astronomically during the New Deal and thereafter and interfered with a broad system of top-down control. He noted that Root had written Overruled: The Long War for Control of the U.S. Supreme Court Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
The right to travel
In a later episode, Bob Zadek returned to the enumerated/unenumerated distinction in his opening monologue. He described the Constitution and the Bill of Rights—the first ten amendments—as protecting Americans positively against government intrusion, and described enumerated rights such as freedom of speech, worship, assembly and petitioning the government as positive rights that government is forbidden to interfere with. Beyond those, he said, there are unenumerated rights acknowledged by strong Supreme Court precedent and political tradition, rights that cannot be taken away except in the most extreme circumstances Foot Voting > Ballot Voting (2020).
Among those unenumerated rights, Zadek named the right to travel—the right to move from one place to another. He said the episode would show this right to be as important as, if not more important than, the right to vote, and argued that the right to move is the right to vote, but that the freedom to move—voting with one’s feet—is far more meaningful because it gives individuals more control over their political environment and their lives generally than the mere right to vote Foot Voting > Ballot Voting (2020).
The Glucksberg framework and the Dobbs draft
Evan Bernick placed unenumerated rights in constitutional-law context. He said that long before Roe, the Court had recognized that the guarantee of liberty in the 14th Amendment’s Due Process Clause includes rights not specifically listed in the Constitution—for example, the right to raise and guide the upbringing of one’s own children. Through a series of cases, he said, the Court held that individuals have the right to guide the upbringing of their children and to choose whether to have children, to contracept or not; this right was recognized first for married couples, then for unmarried couples, and then Roe concluded that one has the right to choose whether to bear children once conceived. Bernick described this as a gradual progression through a series of decisions recognizing a space of personal autonomy under the Due Process Clause Evan Bernick on the Dobbs Draft (2022).
Bernick said the opinion in the Dobbs draft states that besides the right to terminate a pregnancy—unique in that it involves potentially the life of another person—the other due process precedents recognizing unenumerated rights are safe, but that applying the analysis the Court actually applies might raise questions about how good that promise is if challengers seek to revisit those rights Evan Bernick on the Dobbs Draft (2022).
Bob Zadek expanded on the terminology, noting that the Bill of Rights was not in the original Constitution but was understood during ratification to be included, that Madison made and kept that promise, and that the Bill of Rights was enacted in 1791. He said Madison opposed a Bill of Rights on the ground that there are countless rights, and reminded listeners that Madison expressly addressed the point in the 9th Amendment: just because a right was not listed does not mean it does not exist. Zadek described this as a catch-all so that nobody could argue that unlisted rights are not held. He then posed the harder question of how the Supreme Court, from 1791 to the present, locates and protects unenumerated rights, asking whether the Court simply makes them up as a super-legislature would Evan Bernick on the Dobbs Draft (2022).
Bernick answered that the discovery of unenumerated rights is a long story with many twists and turns. At the time Griswold and Roe were decided, he said, the methodology involved what a shifting coalition of justices were prepared to deem sufficiently important to liberty broadly construed to recognize and elevate to constitutional status, then determining in the next case whether a claimed liberty was close enough to one already recognized—a combination of moral intuitions and reasoning by analogy. Because of dissatisfaction on the part of justices including Chief Justice Rehnquist and the late Justice Scalia with this intuition-heavy, case-by-case approach, the Court adopted a new framework called the Glucksberg framework, after Glucksberg v. Washington, in which a majority decided how unenumerated rights would be identified Evan Bernick on the Dobbs Draft (2022).
Bernick said Glucksberg itself involved a claimed right to assisted suicide, and that the Court rejected the claim because it was not deeply rooted in the nation’s history and tradition, looking over centuries to determine whether the right existed at common law or in the law of the states, and concluding it had not. He said the Glucksberg framework has since become the dominant, though not the only, way the Court identifies unenumerated rights, and that in Dobbs the framework appears in perhaps its most demanding form, with the conclusion that the right to terminate a pregnancy is not protected by the 14th Amendment because it does not satisfy Glucksberg Evan Bernick on the Dobbs Draft (2022).
Bob Zadek observed that Roe v. Wade did not spring from the earth full-grown, and that Griswold is its progenitor. He said Roe is predicated on the unenumerated right to privacy, and that without such a right the underpinnings of Roe disappear. Bernick said the right to privacy comes from Griswold, the case holding that married couples have the right to use contraceptives, in which the Court said that even though the right to privacy is not stated in the constitutional text, it emerges from penumbras and emanations of the Bill of Rights. He said Griswold recognizes a right to privacy including certain rights of intimate association, and that this becomes the foundation of a developing doctrine eventually associated less with privacy and more with liberty. By Casey, he said, the Court identified the right to liberty guaranteed by due process as the best hook for the right to terminate a pregnancy, and the fruits of that liberty jurisprudence came to include the right of same-sex couples to be sexually intimate—Lawrence v. Texas, striking down a ban on same-sex sodomy—and the right of same-sex couples to marry, in Obergefell v. Hodges. Bernick said the inquiry in Dobbs is therefore less about privacy and more about liberty: whether the right is a liberty guaranteed by the 14th Amendment, and, the argument goes, because it cannot be found deeply rooted in the nation’s history and tradition, it is not protected Evan Bernick on the Dobbs Draft (2022).
Libertarian disagreement over abortion
In a later episode, Clark Neily said that virtually all libertarians agree there are unenumerated rights the Constitution protects, and that the right to bodily autonomy and the right to self-defense would be two arguably relevant to abortion Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022). He described the pro-choice libertarian argument as beginning from individual autonomy at the top of the hierarchy of values—the idea that no one may interfere with your freedom, whether a private individual or a government official, without extremely strong justification—so that the presumption is that you may do what you want with your body, including taking medicine or ingesting intoxicants. On that view, at the moment of conception, when there is just a fertilized egg, the government lacks a strong enough justification to interfere with ingesting a drug that prevents implantation and forces the pregnant person to carry the fetus to term; the justification may mature later in pregnancy but not early on Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
Neily described the anti-abortion libertarian position as holding that the other rights—the right to travel, the right to raise one’s own children, even access to contraception—differ from abortion because none results in the termination of a human life or a potential human life. When it comes to abortion, he said, the government has an obligation to arguably two different morally relevant beings, and if one believes that from the moment of conception we are dealing with at least a human life and perhaps also a person, then the government has a very strong reason to protect that life, including prohibiting the woman inside whom it exists from doing anything to end it. Neily characterized the question of when personhood begins as more moral or metaphysical than legal Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022). Bob Zadek noted that libertarians do not seem to agree on abortion, and asked Neily to cite a piece he wrote with Jay on the Cato website; Neily said listeners could find it by typing “Cato” and “The Hard Problem of Abortion Rights” or “Abortion is Hard” Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
Across episodes
The topic recurs across four episodes spanning 2014 to 2022, and the treatment shifts with the legal landscape. Damon Root’s 2014 discussion centers on economic rights and the New Deal constitutional revolution; Bob Zadek’s 2020 monologue treats the right to travel as the preeminent unenumerated right; and Evan Bernick’s 2022 discussion of the Dobbs draft moves the focus to the Glucksberg framework and the due process precedents on privacy and liberty. Clark Neily’s 2022 episode extends the question to libertarian disagreement over abortion, invoking bodily autonomy and self-defense as unenumerated rights. The excerpts show a change in emphasis—from economic liberty and its post-New Deal demotion, to the methodology by which courts identify unenumerated rights, to the consequences of that methodology for abortion and other liberty precedents—advanced by Root, Zadek, Bernick and Neily respectively.
What the sources do not cover
The excerpts do not state the holding or amendment at issue in Lochner v. New York, which Bob Zadek mentions only as a topic to be discussed after a break. They do not give the full citation or date of Glucksberg v. Washington, nor the names of the parties in Griswold, Casey, Lawrence, Obergefell or Dobbs. They do not state the title or field of any guest beyond what the excerpts themselves say, and they do not describe the ending of the Glucksberg framework discussion or the post-Dobbs checkerboard section, both of which break off.