So unless the constitution stated it, that right didn't exist?
Didn't exist? You can have whatever philosophy you want. I deal in reality. The Constitution did not protect the rights of black people until it was changed to do so through the legislative system- amending the Constitution. The fact it was immoral does not change the legalities of what the Constitution applied to. You seem to be advocating that new rights should be protected by the Constitution based upon the whim of judges. That is way too much power to put in a group of unelected, tenure for life academics.
Rather, if we believe that things which were not previously recognized as protected by the Constitution should now be protected, the call should be the people's through the Amendment process. Why is everyone so afraid of the Constitution?