The Presumption of Liberty: Protecting Rights without Listing Them
The Presumption of Liberty: Protecting Rights without Listing Them
This chapter examines how a Presumption of Liberty can protect the unenumerable rights retained by the people by shifting the background interpretive presumption of constitutionality whenever legislation restricts the liberties of the people. One approach that judges may take toward legislation restricting the retained liberties of the people is to protect all the rights retained by the people equally whether enumerated or unenumerated. The question that arises is how one would identify the unenumerated rights retained by the people, or how to define the “substantive sphere of liberty” that is protected by the Privileges or Immunities Clause of the Fourteenth Amendment. Because ignoring all unenumerated rights violates the mandate of the Ninth Amendment, the chapter considers two alternatives: using originalism to identify specific unenumerated rights and the Presumption of Liberty.
Keywords: unenumerable rights, presumption of constitutionality, legislation, liberty, Privileges or Immunities Clause, Fourteenth Amendment, Ninth Amendment, originalism, Presumption of Liberty
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