The Rights the Constitution Doesn’t Tell You About
May 31, 2024
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Yale Law Professor Akhil Amar discusses unenumerated rights in the Constitution, focusing on gun regulations and historical contexts. Topics include Supreme Court cases on gun rights, interpretations of the Second Amendment, and the significance of American customs and traditions. The conversation also touches on evolving concepts of unenumerated rights, unusual punishments, and the boundary between government persuasion and coercion in speech.
Unenumerated rights stem from societal norms and state practices beyond the Constitution.
Broad interpretation of the Constitution is crucial for recognizing implicit evolving rights.
State regulations affecting unenumerated rights are subject to different scrutiny levels compared to textual rights.
Deep dives
Unenumerated Rights and Second Amendment Interpretation
The podcast delves into the concept of unenumerated rights and their application in constitutional interpretation, particularly focusing on the Second Amendment. Discussing Justice Breyer's views on the individual right to self-defense in the Second Amendment, the episode explores the evolution of Second Amendment interpretation through history, referencing key cases like Heller. The conversation also examines the Ninth and Fourteenth Amendments in relation to unenumerated rights and how they influence judicial decision-making on issues like gun rights and self-defense.
Constitutional Framework for Unenumerated Rights
The episode highlights how unenumerated rights are derived from American custom, tradition, and practice, beyond explicit constitutional provisions. Drawing on examples like Griswold v. Connecticut and Roe v. Wade, the conversation underscores the search for unenumerated rights in societal norms and state practices. Professor Amar emphasizes the importance of broad readings of the Constitution and the need to recognize implicit rights based on evolving customs and consensus.
State Regulations and Judicial Scrutiny
The podcast delves into the varying levels of scrutiny applied to state regulations infringing on unenumerated rights, contrasting them with textual rights. It discusses the nuances of coercion versus persuasion by the government in relation to free speech rights. Exploring cases like NRA v. Vullo and the government's influence on social media moderation, the episode navigates the complexities of constitutional interpretation when faced with unenumerated rights and government actions.
Supreme Court Unanimously Corrects Second Circuit's Error in Bantam Books Case
The podcast discusses how the Supreme Court unanimously corrected the Second Circuit's error in the Bantam Books case regarding government officials coercing private parties to suppress disfavored speech. Justice Gorsuch pointed out that all factors in the case need to be considered together, not separately. Justice Jackson's concurrence highlighted the distinction between coercion tests and potential First Amendment violations, emphasizing the importance of addressing government retaliation against protected speech.
Spousal Scrutiny of Conservative Justices and the Flag Controversy
The episode delves into the scrutiny faced by spouses of conservative Supreme Court justices like Mrs. Alito and Mrs. Roberts, discussing the trending topic of the flag controversy involving Justice Alito. Contrasting viewpoints are shared regarding the appropriateness of Justice Alito's wife flying an upside-down flag linked to the stop the steal movement. The discussion touches on the broader implications of scrutiny on spouses of public officials and the nuances of private conduct versus public perception.
