To a helpful comment under Political origin/etymology of the political term "constitutional carry" - by extension can we have "constitutional marijuana"? (rhetorical)

...Can you think of an analogous part of the constitution that talks about marijuana in a comparably specific way?

I replied

While it's the Declaration of Independence that includes "pursuit of happiness" as one of the "certain unalienable rights" it sets forth, I'd always (perhaps naively) assumed that the US Constitution guaranteed those three.

My question asked here: "Does the US Constitution guarantee the "certain unalienable rights" asserted in the Declaration of Independence?" Is an aspect of a larger question (likely way too big for a single Stack Exchange question) of how -- if at all -- the Constitution acknowledges, draws from and otherwise references the Declaration of independence.

Citations and links to sources that address that larger issue are also welcome.

But let's keep answers focused on constitutional guarantee (or not) of the "certain unalienable rights" asserted in the Declaration of Independence.

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    With regard to life, there is no guarantee -- at least not until medical science comes up with a cure for the common birthday. (Those are John Glenn's words, not mine. That there was no "cure for the common birthday" was his stated reason for retiring from the US Senate.) May 21, 2023 at 11:38
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    I've long been of the opinion that we need a "Pursuit of Happiness" amendment to the constitution that explicitly protects lifestyles & lifestyle choices that don't directly impact others. May 21, 2023 at 16:15
  • @RussellBorogove how is that not covered by the right of liberty? The pursuit of happiness line always seemed to me more of a rhetorical and poetic flourish than a substantive point.
    – phoog
    May 22, 2023 at 6:36
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    @phoog The Declaration of Independence doesn't carry legal force. Some aspects of the rights to life and liberty are explicitly covered by the amendments in the bill of rights. I want an amendment to provide protection at the constitutional level to (for a few examples) homosexuality, bisexuality, interracial relationships, asexuality, nonconforming gender expression, ownership of absurd numbers of dildos, and other things which are important to individual fulfillment, harmless to others, and frequently come under legal or social fire. May 22, 2023 at 14:34
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    Yes, that's exactly what I'm saying. The amendment (or amendments) would protect the right to the pursuit of happiness by explicitly enumerating certain protections with an implied penumbra of related protections, as with the life and liberty protections in the bill of rights. May 23, 2023 at 19:29

1 Answer 1


This notion of rights that the founding fathers had was influenced by Enlightenment philosophers like Locke, Voltaire, Hume, Rousseau and so on. (see The Philosophy Behind the American Revolution)

The concept was that rights cannot be granted, nor taken away by a document. In fact, many of the founding fathers were troubled by the idea of a "bill of rights" and it wasn't included in the Constitution. It was controversial at the time and there are some names that you might expect to find as signatories to the constitution who refused to sign because of this. The debate was between the "Federalists" and "Antifederalists".

So when the Bill of Rights was written and submitted as a series of amendments, the language is such that it recognises the existence of a right and gives it a legal footing. It doesn't create the right. And it explicitly states that there are other rights.

XI. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

So, for example, the second amendment states that the right of the people to keep and bear Arms, shall not be infringed. The existence of the right is independent of its enumeration, it is assumed to exist. The amendment gives legal power to courts to strike down legislation that infringes on this right.

The Declaration of Independence follows the ideas of Locke etc. and states in the broadest terms that "people have rights". The Constitution recognises some specific rights and gives the courts the power to review legislation that infringes these rights.

The enumerated rights are among the "certain inalienable rights" of the DoI, but there may be others which are unenumerated. In particular, the "pursuit of happiness" is not enumerated in the Constitution.

The question of unenumerated rights has never been properly settled. The supreme court has not used the ninth amendment to give a judicial review to legislation, preferring to use the first 8 clauses of the Bill of Rights or other parts of the Constitution, such as that requiring "due process". There are at least two major interpretations: One, is that as this is an explicit statement that there are unenumerated rights, it is inappropriate for judges to enumerate them. This is the "inkblot" theory, If a clause of the contract is hidden by an inkblot, judges should not speculate on what was hidden. The other interpretation is that this is an invitation to give the unenumerated rights the same legal protection as the enumerated ones - and in doing so, significantly restrict the application by Congress of the "necessary and proper clause" - See Interpretation of the Ninth

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    Until 1868, there was no part of the constitution other than the Bill of Rights that required due process.
    – phoog
    May 20, 2023 at 22:11
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    Until 1865, there was no part of the Constitution (including the Bill of Rights) that guaranteed liberty, and even then, there was an exception for "punishment for crime whereof the party shall have been duly convicted". The 13th amendment made slavery illegal (with the possible exception of criminals). May 21, 2023 at 11:37
  • If there be an object truly ridiculous in nature, it is an American patriot, signing resolutions of independency with the one hand, and with the other brandishing a whip over his affrighted slaves.
    – James K
    May 21, 2023 at 12:04
  • That the Bill of Rights is couched in terms of granting legal protection to existing rights, as opposed to creating rights, is a subtlety that I did not previously grasp. That's very useful for focusing my thinking in this area. May 21, 2023 at 15:02
  • @DavidHammen the Bill of Rights, specifically the fifth amendment, provides that no person shall "be deprived of life, liberty, or property, without due process of law." That establishes (or at least protects) a right to liberty that can, like any right, be limited through due process of law. No right is absolute, but they're still rights.
    – phoog
    May 22, 2023 at 6:33

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