Inferred fundamental rights are equally as indispensable to human freedom as the fundamental rights enshrined in the Constitution's Bill of Rights.
It is axiomatic that fundamental rights warrant maximum protection.
Therefore, there is absolutely no gradation of protection of fundamental rights based upon their inclusion in the original text of the Constitution or not.
Just for comparison:
The highest German court basically said something similar when it announced the right of Data Protection, which the writers of our Grundgesetz could not have known about, since they didn't know ubiquious computers.
In their ruling they stated that your personal data is part of your "human dignity", which is inviolable according to §1.
Another example of a fundamental right the Framers could not have envisioned is the right to a frozen embryo.
The overarching principles of human dignity and human liberty underpin the fundamental rights that are enshrined in the Constitution
AND fundamental rights established by the Supreme Court that have no origin in the original text of the Constitution.
Reportedly, in the colonial period, a delegate to a state convention said "All our rights are not yet known."
The Framers understood that the Bill of Rights was not an exhaustive list of fundamental liberties. James Madison, the "father of the Constitution" was concerned that one day the national government (federal government) would take the position that all requisite rights were included in the Bill of Rights and there were no others. To avoid the possibility of such a dire, future encroachment on individual liberty the Ninth Amendment was included in the Bill of Rights.
AMENDMENT IX [1791]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.Professor Tribe said the Ninth Amendment is an instruction that reminds readers of the Bill of Rights that it is not a comprehensive list of our liberties.
The vagueness of the Ninth Amendment provides no specific basis for inference of any particular right which is the reason Supreme Court justices have not relied on it in the first instance for establishing a fundamental right. However, in
Griswold, Justice Goldberg, in lengthy detail, did rely on the Ninth Amendment for the formulation of his cogent, concurring opinion.
In a polity riven by visceral enmity the Supreme Court has become an increasingly despised institution. To all those who revile the high Court I say consider how illiberal and stultifying America would be now, in the 21st century, if not for all the Court's crucial decisions since
Meyer.
Meyer v. Nebraska (1923)
While this Court has not attempted to define with exactness the liberty [of the 14th Amendment]...the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
Pierce v. Society of Sisters (1925)
The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
Skinner v. Oklahoma ex rel. Williamson (1942)
We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.
Poe v Ullman (1961)
Justice Harlan's Dissent
[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints,...and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.
Due process has not been reduced to any formula; its content cannot be determined by reference to any code.The best that can be said is that, through the course of this Court's decisions, it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society.
If the supplying of content to this Constitutional concept has, of necessity, been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them.
The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke.
That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.
Griswold v. Connecticut (1965)
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.
Loving v. Virginia (1967)
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Eisenstadt v. Baird (1972)
If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
Roe v. Wade (1973)
The Constitution does not explicitly mention any right of privacy.
In a line of decisions, however,...the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.
In varying contexts...the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment,...in the Fourth and Fifth Amendments,...in the penumbras of the Bill of Rights,...in the Ninth Amendment, or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.
These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty,"...are included in this guarantee of personal privacy.
They also make it clear that...this right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
Zablocki v. Redhail (1978)
Since our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that "critical examination" of the state interests advanced in support of the classification is required.
Subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.
Long ago...the Court characterized marriage as "the most important relation in life" and as "the foundation of the family and of society, without which there would be neither civilization nor progress."
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. But of course this Court has never accepted that view.
It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before.
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.
Our cases recognize "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
Our precedents "have respected the private realm of family life which the state cannot enter."
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.
At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Lawrence v. Texas (2003)
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.
In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence.
Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
Obergefell v. Hodges (2015)
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.
From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage... Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.
Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights.
In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.
