The Rights Question

God bless the Socratic Method. Ever since law schools embraced a teaching style that allows professors to answer questions with questions, all the while suggesting that we know the answer but would prefer that the student discover it themselves, we teachers of American Constitutional Law have had a place to hide our own confusion about a critical aspect of our constitutional jurisprudence. That confusion arises when we abandon our mother tongues and begin to use the language (let us call it “rights-speak” for now) the United States Supreme Court uses when it tries to identify creatures called “fundamental rights” and describe the process by which they were located. From their undergraduate days and their general immersion in pop culture, our beloved students are certain that we can conjure up a list of the creatures for them and provide a “how-to” manual on finding others that are yet to be recognized. As law professors, we must surely be bilingual in “rightsspeak.” But then we try to explain it to them and pained looks appear on their faces. Even those of us whose tenure in this field now approaches the three decade mark find ourselves less able to feign the appearance that we know the answer to the “rights question” our Constitution poses. In the end, we have to acknowledge that not only is there no fixed list of