Enumerated vs Unenumerated Rights
In the United States, enumerated rights are written down in the constitution, especially in the first eight amendments. People in the United States also have unenumerated rights, which are not written down in the constitution but are still legally relevant.
The Supreme Court makes decisions based on unwritten rights and what is written in the constitution. Unenumerated (unwritten) rights include the right to travel, privacy, autonomy, dignity, and the right to have an abortion.
None of these rights are stated explicitly in the constitution, but the Supreme Court defends these rights.
While unenumerated rights include the right to travel or privacy, enumerated rights include:
- Freedom of speech.
- Freedom of religion.
- The right to bear arms.
- The right to a fair trial.
Those rights come from early amendments to the constitution.
No One Knows Exactly What Rights an American Has
You cannot make a comprehensive list of unenumerated rights because they are, by definition, unwritten. Other unenumerated rights may exist but have not been tested by the Supreme Court.
Unenumerated rights can become enumerated rights if they are added to the constitution. There is certainty surrounding enumerated rights, while unenumerated rights are uncertain.
There is also no way to know precisely what rights an American does not have. However, the Supreme Court rejects some unenumerated rights. For example, in 1997, the Supreme Court ruled that you do not have an unwritten right to die in the United States.
What Enumerated Rights Does an American Have Under the Constitution?
Most enumerated rights come from the Bill of Rights, almost as old as the constitution. After Americans realized they needed a stronger federal government, they also decided on a Bill of Rights to protect them from government abuses.
Since then, the anti-slavery and women’s suffrage amendments have greatly improved the rights of people in the United States.
The First Amendment
The First Amendment protects freedom of speech. It allows you to express unpopular ideas through what you say and the print media.
It also allows for peaceful assembly and demonstration. Americans can organize a group that disapproves of the government and publicly demonstrates against them to get them to fix problems.
The First Amendment protects religious beliefs and prevents the government from choosing an official religion. The constitution does not specify the limits on free speech.
The Second Amendment
The Second Amendment is the right to bear arms. It is nowhere near an absolute right to bear arms and does not protect ownership of all small arms. However, it does make gun laws in the United States significantly more lenient than in most countries.
The Second Amendment refers specifically to militias. It says that a “well-regulated militia” is necessary for a state’s security and that the government shall not infringe on the right of people to bear arms.
Many Americans are upset if laws weaken the Second Amendment or the First Amendment pass. The First and Second Amendments are two of the most important and defended parts of the Bill of Rights.
The Third Amendment
The Third Amendment states that soldiers do not have the right to force homeowners to let them use their homes. Before the Revolutionary War, British soldiers had the right to use citizens’ homes.
The Third Amendment is also not an absolute right. During peacetime, a soldier cannot use a person’s home without the owner’s consent. They can only use a person’s home during wartime within legal limitations that the constitution does not specify.
Why was the Third Amendment considered important?
The Third Amendment has never been brought before the Supreme Court and tested. Today, it may seem to be unimportant. However, at the time, the amendment was considered significant.
In 1774, the British government passed the second Quartering Act, which allowed British soldiers to stay anywhere, including in the homes and not only the barns and alehouses of the colonists.
This angered the colonists, and the practice continued during the Revolutionary War. It was part of what pushed the colonists towards war.
The Fourth Amendment
The Fourth Amendment protects citizens’ private property from the government. The government cannot unreasonably search an individual, their property, or take anything from them.
It specifies that warrants are necessary for search and seizure. The government needs a warrant that specifies what place is to be searched and what property or people should be seized. Like the Third Amendment, the Fourth Amendment is not an absolute right.
The Fifth Amendment
The Fifth Amendment protects people charged with crimes. It protects people against double jeopardy or being charged twice for the same crime.
It also requires a grand jury if someone is charged with a serious criminal offense. Before anyone can be tried for a felony, they must appear before a grand jury.
A grand jury decides whether or not there is enough evidence to send the case to trial. They can decide that the accused should be charged with a felony, that their charge should be reduced due to insufficient evidence for a felony trial, or that the charge should be dropped.
The Sixth Amendment
The Sixth Amendment also helps defendants. It requires trials to be public and to be done without unnecessary delay. It also requires an impartial jury.
The Sixth Amendment also requires the defendant to know who their accusers are, their charges, and what evidence there is against them. A defendant must also have a lawyer to defend them, and any witnesses who speak in their defense must be found.
The Seventh Amendment
The Seventh Amendment is the right to a jury trial in many but not all civil cases. A defendant usually has the right to a jury trial if a civil suit is heard in federal court. This comes from English common law.
Unlike most countries, the United States often requires jury trials in civil and not only criminal cases. Even countries like Canada, Britain, and Australia no longer require juries for civil cases. The Seventh Amendment also makes it hard for federal judges to overturn jury verdicts in some situations.
The Eighth Amendment
The Eighth Amendment forbids cruel and unusual punishment. It also forbids excessive fines or bail. Like other parts of the Bill of Rights, it has limitations. It does not make executions illegal.
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The Thirteenth Amendment
Most amendments passed since the Bill of Rights have increased the power of congress and have not given citizens additional rights.
However, the 13th Amendment, which ended slavery, is a major exception to this rule. It also forbids involuntary servitude except as a punishment for a crime.
The Nineteenth Amendment
This is the women’s suffrage amendment. It ensures that all American citizens’ rights apply to both sexes. The rights must be given fully and not partly denied.
Do the Ninth and Tenth Amendments Deal With Enumerated Rights?
Many of the enumerated rights Americans have had since 1791 are in the Bill of Rights, ten early amendments passed to protect citizens from an overly powerful federal government.
Only the first eight of the amendments give Americans enumerated rights. The Ninth Amendment states that Americans have other, unwritten rights that are not spelled out in the American constitution. The Tenth Amendment limits the federal government’s powers to the constitution’s written laws.
Many Rights Americans Have are Unenumerated
Some would assume that “innocent until proven guilty” is in the constitution, but it is an unenumerated right based on legal tradition.
A person has an enumerated right to due process, mentioned in the constitution. However, the constitution does not define due process. Instead, courts always believe that a defendant is innocent until proven guilty because courts have always interpreted due process that way.
Freedom of speech usually protects offensive speech
Freedom of speech also protects offensive symbolic actions such as flag burning because courts assume it does. The First Amendment does not define the limits of freedom of speech.
One right that Americans do not have is the right to die. Nothing in the constitution mentions a right to die, and the Supreme Court rejects the idea that it is one of the people’s unenumerated fundamental rights. Laws against doctor-assisted suicide are not unconstitutional.
| Type of Right | Definition | Examples |
|---|---|---|
| Enumerated Rights | Rights specifically listed in the Constitution or Bill of Rights. | Freedom of speech, religion, and the press. The right to bear arms. The right to a trial by jury. |
| Unenumerated Rights | Rights not specifically listed in the Constitution or Bill of Rights, but still protected by the Ninth Amendment. | The right to privacy. The right to marry. The right to travel. The right to bodily autonomy. |
