Obviously there has to be more then enumerated rights for courts to function.
But a fundamental principle is that a court's duty (even SCOTUS) isn't to decide if a right exists or whether it's
really worth protecting, (i.e., Breyer's "interest balancing" approach in
Heller), their purview is limited to the
law created under the authority of the Constitution.
But then how do you discern what is just conjured up and what truly are human rights?
Well, to me "conjuring" can have two connotations here, one good and one bad.
The SCOTUS "finding" the right to privacy is not something I disagree with. I consider privacy (as we understand it today) to be an original, negative liberty perfectly aligned with the enumerated negative rights. I do not really find fault with the Court's reasoning in
Griswold (penumbral rights theory) because I consider it to be well within the philosophical foundation of the 9th Amendment.
The guiding principle of the 9th has become diluted and perverted over the years and part of the problem is of the Court's making. Without getting too far in the weeds, in 1873 the Court gutted the "privileges or immunities" clause of the 14th Amendment in
The Slaughterhouse Cases. After
Slaughterhouse, the only remaining legal path to apply the Bill of Rights to the states was "due process" or "equal protection" but those paths required a fact by fact, case by case analysis which begot a dribs and drabs "selective incorporation" of the rights enumerated in the Bill of Rights.
Slaughterhouse effectively killed the concept of "liberty" being enforced by SCOTUS and penumbral rights theory is a half-assed attempt to reinvigorate it (but modern liberals now claim the benefits of the theory (abortion / LGBTQ rights etc,) while ignoring / dismissing the foundational premise.
I do find fault with the Court conjuring positive rights like the right to healthcare from a loose reading of the general welfare clause or some sort of extra-constitutional social justice agenda.
I guess I all comes from what the court says is a right or not.
But then we are back to the starting point that says that rights, by their very nature do not depend on the Constitution (or the determinations / actions of entities (e.g., courts) that are created by, and derive their powers from, the Constitution) for their existence.
Instead of governmental power being bound and limited by first generation "negative" rights, the modern left's agenda is one of promoting second generation "positive" rights, those social, cultural and economic "rights" that describe circumstances, outcomes or tangibles that government must provide (or force private citizens to provide) to other citizens . . . Needless to say, these two philosophies demand very different roles for government.
The first generation is derived from the Glorious Revolution and Locke and Sidney and is based in keeping government out of our lives, the second is derived from the Bolshevik Revolution and Marx and Lenin and says how the state should take care of us and that the collective is more important than the individual. These themes have no attachment to the political philosophies embraced by the founders / framers and not recognized or allowed for in the US Constitution.
That's why the modern left is at war with the founding principles of the Constitution.
