There is an extensive debate about express and implied rights within the Constitution. As far as I know, every Court has agreed that there are implied fundamental rights. The disagreement arises in how far these rights extend, how these rights are recognized, and whether there should be implied rights at all. Most of these debates revolve around the 14th Amendment and specifically the idea of substantive due process (to be discussed later).
Ultimately, the winners and losers of this debate are determined by which method of constitutional interpretation is the winner or loser.
Throughout the past semester, we have addressed several methods of constitutional interpretation:
- Originalism
- Intent Based
- Text Based
- Contemporary Approaches
- Structure
- Tradition
- Moral
- Natural Law
- Policy
For a more in depth understanding of these principles, you can review these articles:
- Top 7 Ways to Interpret the Constitution
- Constitutional Interpretation: Originalism
- Constitutional Interpretation: Structure and Natural Rights
- Summary of the Tools of Constitutional Interpretation
In my opinion, there are flaws with each of these approaches (some have more flaws than others). Just note that as we progress throughout the semester and begin to discuss hot topic issues, these ideas of constitutional interpretation will arise again and again.
