In recent decades, one of the complaints about Supreme Court rulings is that the Court has chosen to find “rights” where the right is not explicitly stated in the Bill of Rights of the Constitution.  The Supreme Court, as the highest court of the U.S., is authorized by the Constitution to rule on cases where constitutional rights and protections are at issue.

But it has not been clear whether this means that the Supreme Court can, in their rulings, resolve an issue by establishing a right for persons that is not included in the Bill of Rights. After all, Article III, Section 1 states “The Judicial Power shall extend to all cases, In Law and Equity, arising under this Constitution…” It does not say the Supreme Court has the power to establish new rights.

The two major rights the Supreme Court has recently established include the abortion right and the right to same-sex marriage.  These rights, while established by the Supreme Court, are interpreted to apply to all persons in the U.S.

Critics of the Supreme Court’s establishment of new rights always say that the Supreme Court is legislating from the bench.  For example, in the Obergefell case regarding same-sex marriage, Chief Justice John Roberts, joined by justices Antonin Scalia and Clarence Thomas, stated in his dissent that the Supreme Court is not a legislature.

This opinion implies that a new right can only be established through congressional legislation.  But the notion that Congress may, on its own, legislate new rights, may have constitutional problems of its own: it may not be consistent with the Constitution.  In order to understand why, it’s necessary to understand the place of rights in the Constitution.

The rights possessed by all persons in the U.S. were originally described in the first ten amendments.  This list was called the Bill of Rights and was added to the original constitution passed by the Constitutional Convention in 1791.  Since then, more amendments have been added to where now the Constitution has 27 amendments.  The most important fact to note here is that the Bill of Rights is not a list of congressional acts of legislation but of amendments. 

So the criticism that the Supreme Court is legislating from the bench is misdirected: neither the Supreme Court nor Congress have the right to legislate amendments.

One may wish to consider that to be consistent with the Constitution, one must say that new rights cannot originate with legislation passed by Congress alone or with Supreme Court rulings.  Properly, new rights can only be established through a constitutional exercise of the amendment process.

This method is carefully described in Article V. of the Constitution.  For an amendment to be added to the Constitution, first two-thirds of each House must propose an Amendment, and then two-thirds of the States can call for a Constitutional Convention. And if three-fourths of the State legislatures ratify the amendment, the amendment permanently becomes part of the Constitution. 

Since the Constitution states that all powers not granted to the United States belong to the states or to the people, the advantage of having a new right established through an amendment is that the amendment process involves Congress, the states, and the people.  The beauty of this is that this amendment method is then on a solid basis of being ratified by the federal representatives in the House and Senate, and the state legislatures of all fifty states.  This is consistent with the 10th Amendment that powers not expressly given to the United States are held by the States and the people.  Through the amendment process the people and States are brought in to establish a new right, implying that a new right cannot be founded on the decision of one person: what may turn out to be the vote of one Supreme Court Justice in a 5-4 decision. 

This shows that any new right, such as abortion or same-sex marriage, established through a Supreme Court ruling or a congressional act of legislation, is unconstitutional.  Anyone who disagrees with this and suggests that a new right can be legislated by Congress or the Supreme Court must overcome two obstacles 1) the fact that rights in the Constitution all have the status of amendments, and 2) any new right must then go through the amendment process before it has the status of a constitutional right.

Since the Supreme Court cannot legislate a new right from the bench, it also cannot roll back a right. Those who are concerned that a conservative court will roll back the right to same sex marriage must accept that marriage is not a right included in the Bill of Rights.  And since no amendment ever gave marriage the status of a constitutional right, both the Obergefell right to same-sex marriage, and the right to abortion, don’t need to be rolled back; they don’t exist as constitutional rights. 

This doesn’t mean that the Supreme Court won’t continue to fabricate rights out of thin air, they probably will.  Supreme Court rulings can’t be appealed.  But it does show that abortion and same-sex marriage cannot be considered valid constitutional rights because they were never established through the amendment process, as every right in the Bill of Rights was. 

Congress may wish to settle the issue of whether the Supreme Court can establish a right by reaffirming that the only way to establish new rights is for Congress to pass an amendment, and furthermore for Congress to pass an amendment stating that no personal right can be established through a court ruling. 

This leads to the core, inevitable issue: that when the branches of government do not faithfully follow the limits and constraints of their powers as described in the Constitution, powerful conflicts will arise, conflicts that the amendment process was designed to avoid by enlisting the will and consent of both branches of Congress and all the voters through the State legislatures.

At some point, district court judges, circuit court judges, and the Supreme Court must have justices who follow the Constitution.  As federal courts overstep constraints on their role in government, the nation drifts further and further away from the rule of law.