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Just for example, the right to an attorney in a criminal case...that is not enumerated in the Constitution but comes from case law, Gideon v. Wainwright (http:/

Just for example, the right to an attorney in a criminal case...that is not enumerated in the Constitution but comes from case law, Gideon v. Wainwright (http://en.wikipedia.org/wiki/Gideon_v._Wainwright http://en.wikipedia.org/wiki/Gideon_v._Wainwright), interpreting the 14th Amendment. (Although a Constitutional Right there is additional case law that carves out certain criminal cases where an indigent would not be entitled to an attorney). Or how about Brown v. Board, you can read the Constitution all day and not find a single thing about the Constitutionality of de jure racial segregation in schools, yet when you read the case law that interprets the 14th Amendment, you will find in Brown 9-0 the Justices held such laws are Unconsitutional and violate the 14th Amendment. Further, it was just a few years earlier SCOTUS held separate but equal did not violate the 14th Amendment. So put less stock into the plain reading of the Constitution and more into the interpretation, which historically has been subject to change.

dredmorbius 13y ago
You're demonstrating my point. Contruction is used to derive a right to representation under the equal protection doctrine of the 14th amendment. Similarly in Brown. There's a huge amount of Constitutionality (US) which derives from the Commerce Clause: "Congress shall have the power ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes". That's 21 words with a tremendous impact.
- will_brown 13y ago
  Unless I misinterpreted your first comment, I made the opposite point. Someone stated there are Constitutional rights outside those enumerated in the Constitution, you asked for some support, specifically saying "you don't just get to make that crap up." So I gave 2 obvious specific examples of Constitutional Rights not enumerated in the Constitution. As far as the Commerce Clause that is not a Right but a Power, but again it supports the same point...just because the Constitution does not enumerate a power to the Gov does not mean the Gov does not have that Constitutional Power. The Commerce Clause is a good example, maybe the most obvious is Marbury v. Madison where the SCOTUS gives itself the right to Judicial Review.
  - dredmorbius 13y ago
    There's advocating a right out of thin air, and there's constructing a right out of existing doctrine: the Constitution, statute, court cases, "gloss" (prior court interpretation of all of the above). See: legal construction: http://legal-dictionary.thefreedictionary.com/Construction http://legal-dictionary.thefreedictionary.com/Construction Gloss is somewhat more ambiguously defined: http://legal-dictionary.thefreedictionary.com/gloss http://legal-dictionary.thefreedictionary.com/gloss And I absolutely agree with you on Marbury v. Madison. That established the precedent of the Supreme Court to exercise judicial review and rule on constitutionality, which wasn't itself an enumerated power of the court: https://en.wikipedia.org/wiki/Marbury_v._Madison https://en.wikipedia.org/wiki/Marbury_v._Madison However, neither Construction nor Marbury give the court sui generis powers -- at least not usually, nor without a great deal of discomfit. I seem to recall a case (Learned Hand? Oliver Wendell Holmes?) where some pretty broad leaps were made.
    - genericuser 13y ago
      My understanding as not a lawyer, is that there exist constitutional rights that are not listed in the constitution such as the examples will_brown listed. Those examples have court cases now establishing that 'Yes indeed these are constitutional rights', however the cases did not make them constitutional rights. You seem to be saying that the court cases are required for any right to exist if I follow what you are saying. And that I believe is false. My apologies if I merely did not follow what you were saying. Edit: I believe if I am misunderstanding you others might as well so clarification might not be a bad thing.
      - dredmorbius 13y ago
        My understanding as not a lawyer, is that there exist constitutional rights that are not listed in the constitution I've noted that in an amended edit to one of my ancestor posts above. I'd still maintain that well-formed rights should be based on precedent and/or law and/or intent. Though situations such as education (equal protection, commerce, copyright?), abortion / right to life (two opposed "rights"), etc., push the boundaries more than a bit.
- dragonwriter 13y ago
  > Contruction is used to derive a right to representation under the equal protection doctrine of the 14th amendment. Well, no, Gideon found that the right to counsel found in the 6th Amendment was incorporated against the states by the Due Process Clause of the 14th Amendment, not the Equal Protection Clause of the 14th. But, sure, its a bad example of a right not enumerated in the Constitution, since the right to counsel is a right expressly enumerated in the 6th Amendment (and not, there, expressly limited in applicability to federal cases, though that's the way it had always been applied), and the prohibition on deprivation of due process by the states is again expressly enumerated in the 14th Amendment.
  - dredmorbius 13y ago
    > Well, no, Gideon found that the right... I'll take your word for it. Jurisprudence isn't my metier.

dredmorbius 13y ago

You're demonstrating my point. Contruction is used to derive a right to representation under the equal protection doctrine of the 14th amendment. Similarly in Brown. There's a huge amount of Constitutionality (US) which derives from the Commerce Clause: "Congress shall have the power ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes". That's 21 words with a tremendous impact.

will_brown 13y ago
Unless I misinterpreted your first comment, I made the opposite point. Someone stated there are Constitutional rights outside those enumerated in the Constitution, you asked for some support, specifically saying "you don't just get to make that crap up." So I gave 2 obvious specific examples of Constitutional Rights not enumerated in the Constitution. As far as the Commerce Clause that is not a Right but a Power, but again it supports the same point...just because the Constitution does not enumerate a power to the Gov does not mean the Gov does not have that Constitutional Power. The Commerce Clause is a good example, maybe the most obvious is Marbury v. Madison where the SCOTUS gives itself the right to Judicial Review.
- dredmorbius 13y ago
  There's advocating a right out of thin air, and there's constructing a right out of existing doctrine: the Constitution, statute, court cases, "gloss" (prior court interpretation of all of the above). See: legal construction: http://legal-dictionary.thefreedictionary.com/Construction http://legal-dictionary.thefreedictionary.com/Construction Gloss is somewhat more ambiguously defined: http://legal-dictionary.thefreedictionary.com/gloss http://legal-dictionary.thefreedictionary.com/gloss And I absolutely agree with you on Marbury v. Madison. That established the precedent of the Supreme Court to exercise judicial review and rule on constitutionality, which wasn't itself an enumerated power of the court: https://en.wikipedia.org/wiki/Marbury_v._Madison https://en.wikipedia.org/wiki/Marbury_v._Madison However, neither Construction nor Marbury give the court sui generis powers -- at least not usually, nor without a great deal of discomfit. I seem to recall a case (Learned Hand? Oliver Wendell Holmes?) where some pretty broad leaps were made.
  - genericuser 13y ago
    My understanding as not a lawyer, is that there exist constitutional rights that are not listed in the constitution such as the examples will_brown listed. Those examples have court cases now establishing that 'Yes indeed these are constitutional rights', however the cases did not make them constitutional rights. You seem to be saying that the court cases are required for any right to exist if I follow what you are saying. And that I believe is false. My apologies if I merely did not follow what you were saying. Edit: I believe if I am misunderstanding you others might as well so clarification might not be a bad thing.
    - dredmorbius 13y ago
      My understanding as not a lawyer, is that there exist constitutional rights that are not listed in the constitution I've noted that in an amended edit to one of my ancestor posts above. I'd still maintain that well-formed rights should be based on precedent and/or law and/or intent. Though situations such as education (equal protection, commerce, copyright?), abortion / right to life (two opposed "rights"), etc., push the boundaries more than a bit.
dragonwriter 13y ago
> Contruction is used to derive a right to representation under the equal protection doctrine of the 14th amendment. Well, no, Gideon found that the right to counsel found in the 6th Amendment was incorporated against the states by the Due Process Clause of the 14th Amendment, not the Equal Protection Clause of the 14th. But, sure, its a bad example of a right not enumerated in the Constitution, since the right to counsel is a right expressly enumerated in the 6th Amendment (and not, there, expressly limited in applicability to federal cases, though that's the way it had always been applied), and the prohibition on deprivation of due process by the states is again expressly enumerated in the 14th Amendment.
- dredmorbius 13y ago
  > Well, no, Gideon found that the right... I'll take your word for it. Jurisprudence isn't my metier.