Lear's Daughters? Unenumerated Fundamental Rights and the Constitution

Abstract

Abstract How to determine whether fundamental unenumerated constitutional rights exist, and if so, what they are? The questions are of obvious enormous importance—witness the current controversy over abortion—and yet courts have generally been content to address the issues superficially, sometimes, cavalierly. Their treatment of the most common rationale, an historical/traditional consensus, exemplifies this shallow approach. The underdeveloped character of the argumentation on this topic stubbornly remains one of the most glaring shortfalls of modern constitutional law.