Rights and American Constitutional Identity

Much of contemporary constitutional theory underestimates the disharmonies within and disharmonies of constitutional orders. This article examines the dissonance characterizing constitutional identity that is present either in the disjunction between a constitution and the social order within which it functions, or between commitments internal to the document itself From very early on, American framing of rights has revealed a tension between individual and collective meanings, between rights of persons and rights of the people. This article explores the manifestation of this tension in the evolution of the vexing concept of unenumerated rights. While expressive of the particularities of the American constitutional experience, the story illustrates a broader developmental process that is endemic to the constitutional condition. Polity (2011) 43, 409-431. doi:10.1057/pol.2011.10; published online 22 August 2011