Many people claim many things as rights. The Constitution lists certain things as rights but, via the Ninth, expressly states that just because it’s not listed doesn’t mean it is a right. Thus, something can be a right without being listed in the Constitution. Or, “in the Constitution” is a sufficient, but not necessary, condition for something to be a right.
Specifically the Ninth Amendment reads:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Remember, in the philosophy behind which the USA was founded, basic human rights came first. They are inherent in being human. Governments neither grant nor remove them (only secure or infringe). The Constitution does not grant rights. It merely spells out some particular rights that the government is forbidden from infringing.
If one wants to say that something is or isn’t a right then “it’s in the Constitution” ends it. If it’s listed as a right in the Constitution it is. Period. The folk who wrote the Constitution said, in effect, “this is a right that the people have”.
If it’s not so listed, however, we’ve only begun. We haven’t established one way or another. “Not in the Constitution” is the beginning, not the end.
But, given some thought, we can generally work it out.
The key thing to remember is there is no right to violate someone else’s rights. (Note, this is a little different from what I discuss elsewhere, where someone, through their own actions can put at hazard their own right–for instance, if someone presents a credible immediate threat to your life and you kill them in self-defense, you don’t violate their right to life or due process. They set their own right aside in threatening yours.)
So how does this work? Let’s take one example. Many folk claim they have the “right” to the product of other people’s labor. (Don’t think so? What is health care but the product of the labor of researchers, doctors, educators, and a great many others?) Yet, 1) no such right is listed in the Constitution (important–if it _were_ listed, then it would, ipso facto, be a right), but we have to go beyond that because of the Ninth. Now, note what a right to the product of someone else’s labor _means_. One thing it means is that you deprive that someone else of the product of that labor. i.e. you deprive somebody of liberty or property. _But_ not being deprived of liberty or property without due process of law _is_ a right–explicitly stated in the Fifth. Therefore, there cannot be an “unenumerated right”, under the Ninth, to the product of other people’s labor because that would violate the rights those other people do have and that are explicitly listed.
So, what can we conclude? Well, one of the “unalienable rights” of the Declaration of Independence is Liberty. This is reiterated in the Fifth Amendment as something of which we are not to be deprived without due process of law. So Liberty, then is simply the right to do as you see fit, provided it does not forcibly infringe on the same right in someone else.
That’s the touchstone. If a claimed “right” violates someone else’s liberty, or their property, or definitely their life, then it’s not a right. Only their actions can lead to the loss of those rights. If someone causes you damage and the courts strip them of property to reimburse you for the loss, it’s their action that causes the loss of their property, not yours. If someone causes you harm and the courts fine or imprison them as punishment for the harm, it’s their action that causes the loss of their liberty or property again, not yours. And if someone in the commission of a heinous crime is killed in self-defense, or the courts decide their life is forfeit because of the particularly egregious nature of the offense, once again it is their actions that cause the loss of their right to life. (No, I am not opposed to capital punishment in principle. However, because of the very permanent nature of it I think the standard of proof needs to be overwhelming, quite a bit more than even “beyond a reasonable doubt” before it is imposed.)