Unenumerated Constitutional Rights and Unenumerated Biblical Obligations: A Preliminary Study in Comparative Hermeneutics

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I. INTRODUCTION

In 1986, Robert Cover wrote of an "explosion of legal scholarship placing interpretation at the crux of the enterprise of law."(1) As examples of this phenomenon, Cover cited the works of such influential scholars as Ronald Dworkin(2) and James Boyd White,(3) as well as law review symposia,(4) which, Cover noted, focused on "interpretation" or "hermeneutics."(5) As part of the continuing emphasis on hermeneutics in constitutional interpretation, a body of literature has emerged comparing constitutional textual analysis to Biblical hermeneutics.(6) This scholarship has been based on the recognition that, like the Constitution, the Bible functions as an authoritative legal text that must be interpreted in order to serve as the foundation for a living community.

This Essay looks at a basic hermeneutic device common to both Biblical and constitutional interpretation, the identification of unenumerated principles through reference to textually enumerated principles. The Essay observes that, in addition to the numerous obligations listed in the Torah, legal authorities have interpreted the Torah to impose many other obligations not enumerated in the text. The Essay suggests that a similar methodology to that employed in Jewish law has been applied to the United States Constitution to derive rights beyond those enumerated in the text. The Essay thus examines the ways in which American judges and constitutional scholars have relied on forms of textual analysis that find analogues in the interpretation of the Torah by Jewish legal authorities.

II. SUBSTANTIVE DUE PROCESS AND "YOU SHALL BE HOLY"

Despite its function as the guarantor of individual rights against infringement by the government, the United States Constitution, including the Bill of Rights, is surprisingly limited in its enumeration of substantive rights.(7) Nevertheless, the United States Supreme Court has consistently held that the Constitution protects a number of rights beyond those listed in the text. To support these conclusions, the Court has engaged in a variety of interpretive techniques that, to a significant extent, parallel various methods of Biblical interpretation.

In the 1923 case of Meyer v. Nebraska,(8) the Supreme Court was faced with a challenge to a Nebraska state law which prohibited the teaching of "any language other than the English language" prior to high school.(9) Though the text of the Constitution does not explicitly protect the right to education, the Court found that such a right is guaranteed by the Constitution, and held that the Nebraska statute violated the individual's right to pursue and select a reasonable and beneficial means of education.

In recognizing this unnamed right, the Court relied on and interpreted the Fourteenth Amendment, which guarantees that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law."(10) Focusing on the ambiguity of the word "liberty," the Court understood the Fourteenth Amendment to protect a broad range of rights, including

   [w]ithout doubt ... 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.(11)

Turning to education, the Court stated that "[t]he American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted."(12) Therefore, the Court concluded that the teacher's "right thus to teach and the right of parents to engage him so to instruct their children ... are within the liberty of the Amendment."(13) The Nebraska law violated the Constitution because it "attempted materially to interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own."(14)

Two years later, in Pierce v. Society of Sisters,(15) a Catholic parochial school and private military academy challenged an Oregon statute requiring children between the ages of eight and sixteen to attend public school. Relying on Meyer, the Court found it "entirely plain" that the statute "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control."(16) Elaborating on the concept of liberty, the Court declared that

   [t]he 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 school teachers
   only.... [T]hose who nurture him and direct his destiny have the right,
   coupled with the high duty, to recognize and prepare him for additional
   obligations.(17)

The Court's approach in these two cases reflects a willingness to look beyond those rights enumerated in the text of the Constitution, by suggesting that additional rights are encompassed under the Fourteenth Amendment's broad guarantee of "liberty." According to the Court, the term "liberty" clearly includes a wide range of activities and privileges--such as education--that, although absent from the constitutional text, are apparently so basic to the idea of freedom as to make their enumeration unnecessary. The Court's approach, relying on what is commonly called "substantive due process," raised some criticism when applied in certain areas of the law,(18) but the influence of Meyer and Pierce continues to be seen in the Court's further articulation of unenumerated rights.

In the 1977 case, Moore v. City of East Cleveland,(19) for example, the Court held unconstitutional a housing ordinance that prohibited a woman from living in her home with her two grandsons. In his plurality opinion, Justice Powell noted that "[a] host of cases, tracing their lineage to Meyer ... and Pierce ... have consistently acknowledged a `private realm of family life which …