Allow Me to Retort: A Black Guy’s Guide to the Constitution

by Elie Mystal

I think the least controversial definition of the thing is that substantive due process protects unenumerated rights. The Constitution explicitly protects some rights, but it must protect other rights in order for the protection of the explicit rights to make any sense. For instance, the Constitution protects freedom of speech, but it doesn’t explicitly protect freedom of sight. And yet, a government policy of gouging out the eyes of political dissidents would seem brazenly unconstitutional. The freedom of the press is not secured “because of Braille.” The government shouldn’t be able to say: “The First Amendment is not troubled, for we left them their tongues.” We don’t need an entire additional constitutional amendment to explicitly protect the right to have eyes. Forced blinding is substantively violative of the due process clause of the Constitution. The end.