| akuma587 said:There are thousands of things that we take for granted that aren't mentioned in the Constitution but that are still protected. Take intellectual property for instance. Sure the Constitution guarantees property rights, but the definition of property has broadened since the 18th century. And the idea of intellectual property was muddled at best during this time period, and has morphed several times until current day.
Intellectual property is a legal fiction which we maintain because it is commercially valuable. The only reason the word property is in the name of the term is because we put it there and the only reason we consider it property is because we want it to be property. Technically something like a trademark or an idea doesn't actually exist. Does that mean we shouldn't protect it as a property right since there was no clear idea of what intellectual property was when the Constiution was written? No, because that produces absurd results and is counter to what the Founding Fathers would have wanted. While the Constitution is in many ways a shackle on the way we interpret things, the Founding Fathers intentionally wrote it in broad terms so that future generations could interpret it in a way that would adapt to new problems. The Founding Fathers didn't address a great deal of things in the Constitution, but that doesn't mean they aren't constitutionally protected. The Constitution doesn't even say anything about who is the final interpreter of the Constitution. The Supreme Court essentially pulled that power out of the Constitution even though you could argue that it isn't actually there. |
The most obvious example is the freedom of movement or the right to travel. It is not mentioned in the Constitution, but it is a guaranteed right. Can you imagine if someone's right to travel was violated because it was not mentioned in the Constitution? It would be pandemonium.
