
Hearing the People, Part 1: Unwritten Rights and the Ninth Amendment
Akhil Reed Amar, Yale Law professor, argues that the Constitution's unwritten rights emerge from how Americans actually live, not just from its text. Opening his course on America's Unwritten Constitution, he reads the Ninth Amendment's promise of unenumerated rights and explains the method courts use to recognize them: counting evolving state practice. He traces the right to testify in one's own defense, a right no founding-era court allowed, and the standard of proof beyond reasonable doubt, showing how both became constitutional guarantees through custom. Amar then follows the privacy line running through Griswold v. Connecticut, Eisenstadt v. Baird, and Lawrence v. Texas, before turning to Roe v. Wade as a case that got ahead of state practice rather than tracking it, which he uses to explain why Roe proved so much more contested than the other privacy cases.