Legal Positivism holds that a judge should not evaluate the virtue or wisdom of laws, but to apply them dutifully to cases, without passion or partiality. Laws are not to be struck down for being foolish or evil, but only for being unconstitutional. This approach has even attracted some conservatives who oppose activist judges creating new constitutional rights out of thin air (e.g., the privacy right to kill one’s offspring, c. 1973). If faithfully followed, this judicial approach would have courts upholding and applying constitutional yet evil laws as a rubber-stamping functionary.
Add to all this the issue of whether the Constitution, Bill of Rights, and additional amendments list all the rights of U.S. citizens. For example, could a law be made to require Americans to buy and eat broccoli? (There is no “freedom of diet” explicitly stated in our founding texts.) Or what about the right to put cream in one’s coffee, as The West Wing episode “The Short List” so interestingly discusses. Indeed, the Ninth Amendment explicitly declares that the people retain rights not enumerated by the Constitution and amendments.
Yet how does one discern and decide what these rights are in our pluralistic culture? Who gets to identify and codify what those rights are, rights which come before and rank ahead of the Constitution itself? One option is to never consider the question. Yet it would seem to matter greatly that we understand what our rights are and where they come from.