If a right exists, but nobody wrote it down on parchment paper with a quill pen in 1787, is it still a right?

In today's Tea Party, radicalized, vitriolic atmosphere of discussing rights and invoking Founding Fathers, it has become en vogue to complain that people are claiming to have rights that aren't listed anywhere in the Bill of Rights. Or the Declaration of Independence, for that matter. Usually the complaints come from those who oppose whatever it is the right-seekers are asking for.

Today, there was a letter to the editor in the local paper about the right to marry. The letter writer's short, pithy letter was only one paragraph, five brief sentences. He said he'd decided to do a little research, looked in the Declaration, the Bill of Rights, and other writings of the founders and found no mention of that right. Ipso facto, he concludes there is no such right.

(I will stop now and note that my assumption is that Mr. Letter Writer opposes same-sex marriage and so wrote this letter to rebut the argument that such couples have any sort of "right" to marry. His letter did not offer any greater context, so I am feeling free to make my own reasonable inferences. If anyone can offer a better idea of what this guy meant, let me know.)

Naturally, some comments rebutted this sadly simplistic take on things. And, of course, some other comments agreed, further complaining about the "penumbra" of rights horse hockey that our rogue, out-of-control courts have come up with as they legislate from the bench. If it's not in the Constitution, by gosh, it's not a right, they cry!

As a lawyer and a student of the Constitution, this nonsense makes me crazy. If the people making these arguments (that rights don't exist unless they're specifically enumerated in the Constitution) really thought it through, they'd see that it's nonsense. If the Bill of Rights explicitly listed every right that we as citizens, or as humans, possess, well, we'd never have ratified the Constitution because we'd still be writing the damn thing. They can't possibly all be listed. But not being listed does not mean those rights do not exist and to argue otherwise is dangerous in the extreme.

The Constitution says not one word about procreation. But I'm fairly confident the letter-writer would argue to his dying breath that he had an absolute, fundamental right to have his children and to raise them as he saw fit.

I would also wager that the letter writer would object strenuously (at least I hope he would) if any state tried to pass a law saying that brunettes could not marry blonds or that people with green eyes could only marry other green-eyed crazies. I would hope he would expect the Supreme Court to strike down any such law just as they rightly struck down laws banning mixed-race marriages.

Those are just two examples. The Founders never intended the Bill of Rights to be an exhaustive list. In fact, that was one of the objections to having a bill of rights, because it could be seen as exhaustive and could therefore some day be used by a letter-writer in Kansas as authority for arguing against a right. I guess Mr. Letter Writer didn't read that in the Founding Fathers' documents he so thoroughly researched.

But the Bill of Rights does offer some clues. It talks about the right of persons to be secure in their homes and their effects. It talks about liberty. It includes the rights of religion, association, and speech which, when combined and viewed properly, can cover a lot of things. Oh, and let's not forget that we've since amended the document to be clear that all persons are entitled to equal protection of the law. It's a simple phrase, but it means so much and applies to oh so many situations. Some (many) would even suggest it would apply to
the situation where the state offers up marriage as a legal option, but only to couples the state approves of.

The bottom line is that we can't look to the enumerated rights specifically mentioned in the Bill of Rights and stop there. That isn't all there is to it. Those rights are the tip of the iceberg. It requires thoughtful analysis to look beyond that basic list and consider the full import of the ideals they embody. This is why the extreme textualism some people apply to Constitutional analysis makes me nuts, because it is the very last thing the founders would have wanted us to do. Sheesh, anyone who thinks we are limited to the explicit words the Founders included in that fairly brief document didn't study the founding of our nation at all.