Unenumerated rights

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Unenumerated rights are sometimes defined as legal rights inferred from other legal rights that are officialized in a retrievable form codified by law institutions, such as in written constitutions, but are not themselves expressly coded or "enumerated" among the extant writ of the law. ^[1] Alternative terminology sometimes used are: natural rights, background rights, and fundamental rights. ^[2]

Unenumerated rights may alternatively refer to a situation when an individual or group of people delegate limited powers to a government. When limited powers are delegated, then necessarily there must remain residual rights in the individual or the group of people. The American statesman James Madison was a champion of this residual theory of unenumerated rights. In his speech introducing the Bill of Rights in the United States Congress, Madison explained, "the constitution is a bill of powers, the great residuum being the rights of the people."^[3] Likewise, in a letter to George Washington, Madison wrote: "If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended."^[4]

Unenumerated rights may be actual rights insofar as they necessitate the systematization of positively enumerated rights anywhere laws would become logically incoherent, or could not be adhered to or maintained in the exclusion of those unenumerated items as rights. Examples of this include federal systems where constituent member constitutions have to be interpreted in relation to their membership in the federal whole, adjudicative of whether authority is rightfully devolved or more rightly federative.^[5]

This term alternatively, is used loosely to mean any perceived rights, often considered peremptory or intuitively fiat (such as God-given rights innate to each individual or inherent to mankind),^[6] that are without expression or instance of articulation & without consideration of the necessity to their existence extrapolated from the logical unity of other positive rights.

Article 40.3 of the Irish constitution and the Ninth Amendment of the U.S. Constitution both refer to and account for the recognition of unenumerated rights by their respective governments.