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Edited on Tue Jan-12-10 11:36 AM by Land Shark
For example, the right to privacy, the right to have children, the right to travel or move state to state, right to free thought and conscience, right to be yourself or even "wear strange clothes," and the RIGHT TO VOTE. NONE OF THESE are in the text of the constitution and YET have been recognized for over a century as fundamental rights at the level of the Constitution or higher.
On the right to vote in particular, Amendments to the Constitution reflect NON-DISCRIMINATION in the right to vote, because the right to vote is both state-based as well as higher than the constitution -- it created and ratified and per-existed the Constitution itself. There's an urban legend that Bush v. Gore said there's no constitutional right to vote - not true. They only said there's no self-executing vote FOR PRESIDENT, BUT, the court said in the very next sentence, as soon as a state legislature decides to use elections for the Electoral college, which by the way every state since shortly after the Civil War has, the constitutional right to vote attaches. As a practical matter there is most definitely a cause of action for violation of constitutional rights if a sheriff, for example, detains you on election day to prevent your vote for president.
Some rights, like the right to vote, are properly seen as higher than the Constitution itself and if we affirmatively put the vote in the Constitution it becomes a political football, readily restricted by legislatures of 3/4 of the states or similar vote of Congress. I personally think it's best to keep it open so it doesn't get locked in, in a bad way. Of course, proposals for amendments on this believe they can lock it in via a good way, but with all the voter suppression, who can be so sure?
ON EDIT: IF rights must be in documents to be real, then rights are GRANTED by the government (a very dicey position to be in, freedom-wise, makes Patriot Acts unstoppable even in theory) instead of being GUARANTEED by the government (as set forth in the world's most influential political document ever: the Declaration of Independence, stating, "To secure these rights, governments are instituted among men." That's why governments exist: TO SECURE OUR RIGHTS, or guarantee them, NOT TO GRANT THEM.) The exception is minor statutory rights. Where rights are in writing, however, they can be seen as just reductions-to-writing of the pre-existing right. But, are they then fair reflections of the right, or not? What any given right is, or means, will always be contestable.
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