How do the courts really discover unenumerated fundamental rights? Cataloguing the methods of judicial alchemy

Article Abstract:

A pluralistic approach may be the best method for discovering unenumerated fundamental rights, as no single method could encompass the text and history of the Constitution, as well as Supreme Court precedent and due process concerns. Judicial constraint should be combined with both positive arguments for rights and negative arguments stressing the problems of strict scrutiny. The current process rather resembles a form of alchemy based on the personal inclinations of the judge selected to write the opinion, a system that could benefit from a more explicitly pluralistic approach.

Cases, Civil rights

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Judicial review and federalism

Article Abstract:

Judicial review as well as politics must prevail under federalism to protect states' rights. The Supreme Court, in Garcia v. San Antonio Metropolitan Transit Authority, endorsed the political safeguards theory of federalism, which holds that the states must use political means to resist encroachment by the federal government. However, the Framers expected that judicial review and politics would work together to protect liberty by preventing an overly efficient federal government.

United States, Laws, regulations and rules, Federalism, Judicial review

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