Constitutional Human Rights, Named and Unnamed

Abstract

foundations of American human-rights law are in bad shape. They creak, they groan for rebuilding. With these words, Charles Black justifies his effort to promote a new theory of Constitutional human rights law in United States in a book entitled A New Birth of Freedom: Human Rights, Named and Unnamed. Black stands within tradition of Warren Court of 1950's and 60's. He is an intellectual leader of a group of theorists committed to an activist jurisprudence on human rights. Commonly identified as non-interpretivists, this group of thinkers views Constitutional outline of rights not as a limit, but as a mandate for recognition of an evolving understanding of human rights. His efforts remind us that controversies over activist non-interpretive constitutional adjudication, which became particularly controversial in 1950's, and counter movement of original intent, which raged in 1970's and 1980's, may have receded from headlines, but that essential arguments and emotional angst they generated have not gone away. Moreover, I believe Black is correct in his assertion that existing jurisprudence on human rights is confused and harmful to our interests in protecting these rights. Efforts to justify court decisions based upon tortured readings of 14th Amendment's due process clause make a mockery of court's efforts. As Black puts it, It's application follows no sound methods of interpretation...and is therefore neither reliably invocable in cases that come up, nor forecastable in result by anything much but a guess. Holdings that are not grounded in some reasonable reading of text invite cynicism--the belief that it is not law that is being upheld, merely the opinion of 9 old men in Washington. Black's effort is, in my opinion, fundamentally flawed. Nonetheless, I believe that a careful review of his arguments and critiques which may be offered against them does suggest an approach which may be more fruitful. I, therefore, start with a brief summary of Black's general theory, in which: first, he argues for need for new grounds for adjudicating human rights claims; second, he identifies sources he thinks are appropriate for human rights (the Ninth Amendment, The Declaration of Independence life, liberty, and pursuit of happiness clause, and Fourteenth Amendment privileges and immunities clause); third, he justifies use of these sources against existing arguments opposing an expansive reading of constitutional human rights; and, finally, he provides an illustration of how these new sources can be applied (with example of a constitutional right to economic assistance). I then break theory down into its constituent elements, highlighting both insights it provides and some of problems it fails to address. I then use his presentation to sketch out essential features of two differing visions of Court, which underlie non-interpretist approach taken by Black and interpretivist/intentionalist arguments commonly offered against his position. My argument is that there is merit in both positions, and I seek to outline a compromise which, while less ambitious than that supported by Black, nonetheless affirms that Court has a constitutional role in support of unnamed human rights.