| | Seconding what some are saying, but not all, Volokh is an eminent and accomplished libertarian, stating a fact about the legal system. Had he said "natural right" or had he taken the line that there are no natural rights, only the ones the courts recognize, Scott would be justified in what he says - but Volokh didn't.
As to what a constitutional right is, the easy part of the answer is that it's one guaranteed in the Constitution. The hard part is saying just what these are. I'm willing to take Volokh's word about the present state of the law.
One possibility (I didn't say it was anything more) is that Volokh is taking a legally conservative, stick-to-the-text approach, in opposition to judges who read what they want, no more, no less, into the Constitution. Henry Holzer is one who argues this way, pointing out that if hardcore Objectivist Supreme Court judges (who are hard to find these days) can rule on the basis of what they wish were in the text, so can any other kind.
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"A product can be banned because legislatures don't like it, or because you get a majority vote," said Eugene Volokh, law professor at UCLA. "In some states, they ban the sale of horse meat, not because horses have a right to life, but just because the government thinks it's icky. There is no constitutional right to eat what you like or sell what you want to sell."
