Carlos Chévere Lugo (St. Mary’s University – School of Law) has posted From Lockstep to Liberation: Activating Puerto Rico’s Dignitarian Unenumerated Rights Clause Through State Constitutional Lessons on SSRN. Here is the abstract:
Article II, Section 19 of the Puerto Rico Constitution provides that the enumeration of rights in the Bill of Rights “shall not be construed restrictively” and expressly preserves “other rights not specifically mentioned which belong to the people in a democracy.” Despite its exceptional textual strength, this provision has remained largely dormant for over seven decades. This Article argues that Section 19 constitutes the most potent unenumerated rights clause in American constitutional law and proposes a doctrinal framework for its activation.
The Article first examines the marginalization of the federal Ninth Amendment and the methodological incoherence of the substantive due process doctrine that replaced it. It then recovers the parallel tradition of state constitutionalism, tracing the dual architecture of Baby Ninth Amendments and Lockean natural rights clauses through which state courts have enforced unenumerated rights that federal courts refused to recognize. Against this backdrop, it demonstrates—through textual, structural, and historical analysis—that Section 19’s affirmative prohibition against restrictive construction, its democratic grounding of unenumerated rights, and its concurrent protection of legislative welfare authority render it stronger than both its federal progenitor and its state counterparts. The Article situates this provision within Puerto Rico’s dignitarian constitutional framework, advancing a “symphonic” interpretation under which individual rights provisions operate as interconnected elements of a unified commitment to human dignity.
Finally, the Article proposes a three-factor test for identifying Section 19 rights and applies it to two domains of pressing contemporary significance: the right to earn a living, imperiled by the Labor Transformation and Flexibility Act, and the right to bodily autonomy, threatened by recent legislation systematically restricting reproductive self-determination. It further argues that Section 19, read alongside the dignity guarantee of Section 1, supports affirmative state obligations in healthcare, environment, housing, and food—obligations grounded in comparative constitutional practice from South Africa, Germany, Colombia, and India. The constitutional text already contains the tools for this transformation. What remains is the institutional will to use them.