Many constitutional rights would be useless if certain conduct ancillary to those rights was not also protected. The Second Amendment protects the right to keep and bear arms, but the right could be rendered meaningless if the government could ban the possession of bullets. The Sixth Amendment’s right to the assistance of counsel has been held to imply the right to use one’s lawfully obtained money to pay a lawyer. Across a variety of domains, judges and scholars recognize that the full exercise of constitutional rights often warrants extending that protection to related conduct. But how far, and to what kinds?
This Article takes up these questions about what it terms “ancillary rights.” The Article first illustrates the concept using examples in First, Second, and Sixth Amendment jurisprudence and then creates a taxonomy of ancillary rights in four categories: Necessary, Facilitative, Correlative, and Prophylactic. That is, some ancillary conduct is protected as necessary to the right’s exercise (e.g., obtaining bullets); other activities are protected because they enable the right to be more effectively exercised (e.g., access to court proceedings); while still other conduct is protected as the corollary to the right(e.g., self-representation in a criminal case) or as a prophylactic measure that gives breathing room to the right (e.g., Miranda warnings).
After this survey and categorization, the Article draws an analogy to the implied powers doctrine under the Constitution’s Necessary and Proper Clause to understand one way to identify and limit implied protection for ancillary rights. The Article then proposes that courts should adjudicate ancillary rights claims by focusing on the extent to which their regulation burdens the underlying constitutionally-specified right from which they ultimately derive.