Unincorporated Rights

In the debate over the individual mandate, there is lots of loose talk about the right of individuals to choose not to purchase a product or participate in commerce.  Of course, there is no such right, in the sense that states can (consistent with their constitutions) force you to buy things.  On the other hand, one could conceive of this as a fundamental right that is unincorporated and thus only applies to Congress.

As far as I can tell, though, there are no unenumerated and unincorporated rights.  The only unincorporated rights are in the Bill of Rights (e.g., grand jury, civil jury, the Third Amendment).  Am I wrong about that?

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14 Responses

  1. How broadly do you define unenumerated rights? Do you include unenumerated rights beyond those protected by the Due Process Clause? If so,those would not be incorporated. Also, do you include unenumerated rights protected by the Privileges or Immunities Clause of the 14th Amendment? Because Justice Thomas’ opinion only received one vote, I don’t think I could say any of those unenumerated rights would be incorporated either.

  2. Gerard Magliocca says:

    Rights recognized by the Court.

  3. WPB says:

    The right to carry a gun near a school zone so long as the gun has not itself traveled in interstate commerce?

  4. William Baude says:

    The right to a 12-person jury? (Or do you regard that as an “enumerated” right (and if so, enumerated where)?)

  5. Gerard Magliocca says:

    Hmm . . . I hadn’t thought about the 12-person jury issue. Good one.

    Yes, a limit on Congress’s power can be characterized as an unincorporated right. Then we get back into the debate (which I talk about in the draft that I posted last month) about the federalism basis for such a limitation. I was trying to figure out if there is anything beyond Lopez and Morrison where Congress cannot act but states can.

  6. WPB says:

    How about the right to pass laws protecting the right to free exercise beyond Oregon v. Smith? (According to the Court’s opinion in Boerne, that’s another area where Congress cannot act (at least as to state laws) but states can.)

    More generally, it seems like your question does indeed just ask us to rephrase enumerated powers decisions in the form of a right.

  7. WPB says:

    Or maybe we could restate federal structural rules in a similar way? The right not to be subject to a common law of crimes. The right not to be subject to a commercial common law in diversity. The right not to be subject to unbounded delegations. The right to a life-tenured judge to resolve our legal disputes.

  8. Gerard Magliocca says:

    It’s a fair point, though we don’t usually call those things as rights. Maybe what I’m trying to say is that people shouldn’t characterize the individual mandate in terms of a right.

  9. Jim Maloney says:

    Rephrasing structural rules to generate “rights” would populate the list, as WPB demonstrates, but otherwise there does seem to be a scarcity of unenumerated/unincorporated rights recognized as rights per se. This results, I think, mainly from the pathway to recognition: cases in which the Court has recognized an unenumerated right or set of rights have for the most part been challenges to state laws: Meyer v. Nebraska, Griswold v. Connecticut, Moore v. City of East Cleveland, etc., etc. Recognition and incorporation occur simultaneously. A flip-side question: are there any recognized unenumerated rights that have been held to apply as against states but not necessarily as against the federal government, i.e., in which the Bolling v. Sharpe principle has not been applied or has been held not to apply? Again, rephrasing structural rules to generate “rights” would populate that list easily enough: application of the “dormant commerce clause,” for example, generates such “rights” as against states but not the federal government. But what about unenumerated individual liberties recognized as against states only?

  10. WPB says:


    The only one I can think of off the top of my head is the right to non-discrimination on the basis of alienage.

  11. The problem is that you’re approaching this backwards: It’s not a matter of an unincorporated right, it’s a matter of an undelegated power. Of the lack of a federal power to compel the economic transaction, rather than the right of citizens to refuse the transaction.

  12. Gerard Magliocca says:

    Well, am I approaching it backward, or are the people who are claiming that such a right exists guilty of that?

  13. S.M. Abeles says:

    Both. The folks talking about the “right” not to be forced by the Federal Government to purchase health insurance must be relying either on the Ninth Amendment’s reservation of rights beyond those enumerated in the Bill of Rights (good luck) or some as-yet unrecognized right found in the Fifth Amendment’s due process clause (good luck). While I personally believe the Ninth Amendment argument should be given more credence than it would receive, I don’t think either of these bases are in the mind of those raising this “right.” Rather, as this post begins, this argument’s proponents are using loose talk to describe undelegated government power.

    You’re approaching it backward because you’re looking at the issue through the lens of the folks just discussed; that is, people who are looking at the issue backward.

  14. Jake says:

    Had he shared Magliocca’s narrow view of human liberty, or the false dichotomy of “enumerated” versus “unenumerated” rights, Thomas Jefferson never would have penned the Declaration of Independence.