Unenumerated rights arelegal rights inferred from other rights that are implied by existing laws, such as in writtenconstitutions, but are not themselves expressly stated or "enumerated" in law. Alternative terms areimplied rights,natural rights,background rights, andfundamental rights.[1]
Unenumerated rights may become enumerated rights when certainty is needed, such as in federal nations where laws of subordinate states may conflict with federal laws.[1]
The term "unenumerated rights" may be used loosely to mean any unstatednatural rights and legal rights or the intrinsichuman rights of an individual.[1]
Implied rights are the political and civil freedoms that necessarily underlie the actual words of theConstitution but are not themselves expressly stated directly in the Constitution. Since the 1990s, theHigh Court has discovered rights which are said to be implied by the very structure and textual form of the Constitution. Chief amongst these is an implied right to freedom of communication on political matters, which was first recognised inNationwide News Pty Ltd v Wills. In addition, some protections of civil liberties have been the result of the High Court's zealous attempts to safeguard the independence of, and confidence in, thefederal judiciary. A good example of this can be seen inKable v Director of Public Prosecutions (NSW), in which the High Court struck down a criminal law passed by theNew South Wales Parliament that was directed at a single, named individual in a similar manner to abill of attainder. The High Court also inferred a limited right to vote from the text of the Constitution inRoach v Electoral Commissioner, invalidating legislation that prevented all prisoners from voting.
Article 40.3 of theIrish Constitution refers to and accounts for the recognition of unenumerated rights.[9] TheSupreme Court of Ireland is often the main source of such rights, such as theright to bodily integrity, theright to marry and theright to earn a living, among others.[10]
Article 16 (titledScope and interpretation of fundamental rights and known as the "open clause of fundamental rights") of thePortuguese Constitution explicitly refers to fundamental rights not enumerated in it, but in other legal sources, reading as follows: "1. The fundamental rights enshrined in the Constitution shall not exclude any others set out in applicable international laws and legal rules. / 2. The constitutional and legal precepts concerning fundamental rights must be interpreted and completed in harmony with the Universal Declaration of Human Rights."
Many fundamental rights are also commonly first pointed out by scholars and theConstitutional Court through the interpretation and breaking down of enumerated rights or general principles, namely therule of law andhuman dignity.
Article 22 of theConstitution of the Republic of China guarantees unenumerated freedoms and rights of the people that are not detrimental tosocial order or public welfare, now in effect inTaiwan.
In the United States, theNinth Amendment to theU.S. Constitution protects against federal infringement of unenumerated rights. The text reads:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
TheSupreme Court of the United States has also interpreted theFourteenth Amendment to theU.S. Constitution to protect against state infringement of certain unenumerated rights including, among others, theright to send one's children to private school and theright to marital privacy.
The Supreme Court has found[citation needed] that unenumerated rights include such important rights as theright to travel, theright to vote, and theright to keep personal matters private.[11]
State constitutions have also been interpreted to protect unenumerated rights. Sometimes this has been done via provisions with similar language to the Ninth Amendment (often called "Baby Ninth Amendments")[12] and sometimes with provisions with similar language to theFifth Amendment's and Fourteenth Amendment'sdue process of law clauses. Unenumerated rights that state courts have found to be protected by these types of provisions are as varied and have included the right to earn a living, the right to establish a home, and theright to refuse medical treatment.[13]
