Just The Point: But it’s not in the Constitution!

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A Winters Express opinion column

By Richard Kleeberg
Special to the Express

Most Americans believe that all of our Constitutional Rights are clearly and specifically stated in the words of the Constitution.

Most Americans are wrong.

The United States Supreme Court has a long history of finding new Constitutional Rights, even when they are not mentioned anywhere in the Constitution. The Court’s ability and willingness to create new Constitutional Rights has made profound changes in our law and society.

We all have watched enough television police dramas to know quite well that if you get arrested, the police will tell you that “you have the right to an attorney.” But that is not what the Constitution says. The Constitution says we have the Right to an Attorney only in a Federal Court criminal trial. But since 98 percent of all criminal trials are in State Courts, not in Federal Courts, the actual words in the Constitution only rarely provide us with the Right to an Attorney.

But in 1963, in a case called Gideon v. Wainwright, the Court decided that the philosophy of “fundamental fairness” requires that we have a Right to an Attorney, in all criminal cases, especially in State Court criminal trials, despite what the Constitution says.

And have you ever wondered why all those television cops always read the rights to a suspect immediately upon an arrest? It is not because of anything written in the Constitution. The requirement that you be read your rights exists only because it was created by the Supreme Court, in 1966.

Our Constitutional Right to Travel (traveling from one State to another), is mentioned nowhere in the Constitution, but it dates back at least to 1858. Even today, the Supreme Court continues to confirm that our Right to Travel exists, without it being written anywhere in the Constitution. In a recent case, the Court said: “we do not need to identify the source of our Constitutional Right to Travel, which is not in the text of the Constitution.”

Another great example of the Supreme Court finding unwritten Rights in the Constitution is our Constitutional Right to marry a person of a different race or color. As you might guess, it’s not mentioned in the Constitution. But the Constitutional Right for a Black person and a White person to marry was created by the Court, in 1967, in the wonderfully named case of Loving v. Virginia. (By the way, the basic Right to Marry, is itself never mentioned in the Constitution, but, long, long ago, the Court said that our Right to Marry is Constitutionally protected.)

Another good example is our Constitutionally guaranteed Right to Privacy. You may be surprised to discover that the Right to Privacy is not mentioned in the Constitution. In fact, the word “Privacy” never appears anywhere in the Constitution – not even once.

Our Right to Privacy comes from a 1965 case. At that time, in many States, it was illegal to buy or sell birth control drugs or devices. But the Supreme Court created a new “Right to Privacy,” which the Court said exists, unwritten, hidden somewhere within the umbrella of all our written rights. The Court said a woman’s private decision to prevent a pregnancy is protected by her Right to Privacy, forcing States to make birth control legal.

Eight years later, in 1973, this new Right to Privacy was expanded. In Roe v. Wade the Court took the Right to Privacy, (along with other Constitutional arguments), and extended it beyond just a woman’s private right to prevent pregnancy, to also include her private right (with restrictions), to terminate a pregnancy. (As you know, the Supreme Court today is currently reviewing the foundation of Roe v. Wade, and may soon create a new rule.)

The Fourth Amendment protects our homes and bodies from an unreasonable search by the government. But what about a government wiretap (which is a search) on our phones or other electronic devices? Even though the words “telephones” and “wires” can’t be found anywhere in the Constitution, the Court decided in 1967 that the meaning of the Fourth Amendment must include protection from wiretaps and other electronic searches by the Government.

Gay Marriage provides us with the most recent example of the Supreme Court creating an unwritten Constitution Right. Gay marriage is, of course, not mentioned in the Constitution. But in Obergefell v. Hodges in 2015, the Court found that the Due Process and Equal Protection clauses of the Constitution ensure that same-sex couples have the same fundamental Constitutional right to marry as opposite-sex couples do.

There are many, many more examples of the Court expanding our Constitutional Rights well beyond the actual words contained within Constitution. This has been a consistent part of the history and tradition of the Supreme Court for more than 200 years.

Read more from Richard Kleeberg at JustThePoint.com.

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