Reviving Elusive Rights: State Constitutional Unenumerated Rights Clauses as Bounded Guarantors of Fundamental Liberties
Unenumerated rights clauses, which preserve inherent rights not enumerated within a constitution, are caught between a rock and a hard place: judges either disregard them for their lack of clarity or use them to fabricate rights. Both results disserve the original purpose of unenumerated rights clauses as bounded guarantors of the fundamental rights of the citizenry. These apprehensions further aggravate state judges, who lack the careful focus of academics and hinder themselves through structuring judicial opinions at the expense of their state constitution’s unenumerated rights clause. This Note proposes that state supreme courts possessing unenumerated rights clauses in their state constitutions, with their accompanying sovereign obligations to the public, should more carefully apply those provisions in relevant cases.
The Founders’ efforts to secure unenumerated fundamental rights through the Ninth Amendment have been thwarted by the U.S. Supreme Court’s failure to develop definitive models by which to preserve them. Leading academics have filled theoretical gaps left by the U.S. Supreme Court by generating various methods pertinent to state unenumerated rights clause interpretation, albeit imperfectly. To enhance the efficacy of these provisions, state courts can adopt a series of techniques—including identifying proper sources of fundamental rights, interpreting state and federal provisions distinctly, and ordering state interpretation first after this distinction—that invoke the primacy of state constitutions when protecting inherent rights. After setting forth these interpretive principles, this Note evaluates how Georgia wields its unenumerated rights clause to identify and guarantee particular fundamental liberties. By shifting how they approach their state constitutional unenumerated rights clauses, state supreme courts can avoid apathetic denial of rights owed to their citizenry and instead vigorously bestow constitutional protection over them.
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