A critical guide to the ninth amendment

Temple Law Review

Volumn 69, Issue 1, 1996, Pages 61-93

  McAffee, Thomas B ^a  

^a SOUTHERN ILLINOIS UNIVERSITY   (United States)

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EID: 10344228857     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (183)

1. 381 U.S. 479 (1965).
2. 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." U.S. CONST, amend. IX.
3. Griswold, 381 U.S. at 484.
4. Id. at 486-87 (Goldberg, J., concurring).
5. Id. at 519-20 (Black, J., dissenting) (commenting that it would go "far beyond" language of Ninth Amendment to grant Court veto powers over either state or federal lawmaking); id. at 529-31 (Stewart, J., dissenting) (applying Ninth Amendment in manner inconsistent with its express limitations on federal powers "is to turn somersaults with history").
6. Id. at 519-20 (Black, J., dissenting) (averring that Ninth Amendment was intended to limit federal powers to those expressly granted, or those necessary by implication); id. at 529-31 (Stewart, J., dissenting) (noting that Ninth Amendment makes clear that all rights and powers not explicitly delegated to federal government were retained by individuals and by states).
7. As if the fundamental debate about the original meaning and purpose of the Ninth Amendment was not confusing enough, the confusion is further enhanced by the difficulties presented by Griswold's debate over incorporation of the Bill of Rights, see id. at 500 (Harlan, J., concurring) (stating belief that Fourteenth Amendment does not incorporate all protections derived from Bill of Rights), and Justice Goldberg's ultimate, rather equivocal reliance on the TEMPLE LAW REVIEW [Vol. 69 Ninth Amendment, see id. at 491-92 (Goldberg, J., concurring) (maintaining that Ninth Amendment protects right of privacy, although such right is not enumerated in Bill of Rights). After initially claiming that the purpose of the Ninth Amendment was to confirm that "there are additional fundamental rights . . . which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments," id. at 488, Justice Goldberg clarified that it was not his view that "the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government." Id. at 492 (Goldberg, J., concurring). Rather, he claimed, the Ninth Amendment "simply lends strong support to the view that the 'liberty' protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments." Id. at 493 (Goldberg, J., concurring). Although Justice Goldberg failed to explain why the Ninth Amendment might not be considered an "independent source" of constitutional rights, some commentators have suggested that this was because the Ninth Amendment merely states a "rule of construction" that presupposes that there are rights implicit in the social contract and which do not depend on recognition in the positive law text of the written Constitution. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 776 n.14 (2d ed. 1988) (contending that it is erroneous to presume Ninth Amendment rights because Ninth Amendment acts as "rule about how to read the Constitution . . . not a source of rights as such"). But the practical significance of such an analysis seems unclear, inasmuch as, to Justice Goldberg at least, such rights still appear to be candidates for judicial enforcement in the name of the Constitution, and hence might appropriately be referred to as "constitutional rights." Apparently, the point is only that they are viewed as preexisting rights that are "recognized" by the Constitution as being part of our fundamental law, rather than having their source in the Ninth Amendment or the Constitution, considered as a text. Cf. Griswold, 381 U.S. at 492 (Goldberg, J., concurring) (averring that Constitution's Framers intended Ninth Amendment to protect other fundamental, though unenumerated, rights). Alternatively, Justice Goldberg may have preferred not to treat the Ninth Amendment as the "source" of nontextual fundamental rights. He may simply have believed that it seemed more fitting to use the Ninth Amendment to justify a particular conception of "due process" fundamental liberty (one not limited to rights enumerated in some constitutional text), rather than to warrant a sudden departure from decades of precedent grounding fundamental rights decisions in the due process clauses of the Fifth and Fourteenth Amendments. This article will evaluate the basic thrust of the arguments in the debate over the meaning of the Ninth Amendment. However, this article will not seek to resolve the further issue of whether, in Justice Goldberg's view, the Amendment should be viewed as the source of fundamental constitutional rights, or merely as a textual allusion to nontextual rights precisely because the practical significance of Justice Goldberg's "independent source" disclaimer is uncertain and the rationale of the point unclear. See id. (Goldberg, J., concurring) (disavowing that Ninth Amendment constitutes "independent source" of protectable rights).
8. As if the fundamental debate about the original meaning and purpose of the Ninth Amendment was not confusing enough, the confusion is further enhanced by the difficulties presented by Griswold's debate over incorporation of the Bill of Rights, see id. at 500 (Harlan, J., concurring) (stating belief that Fourteenth Amendment does not incorporate all protections derived from Bill of Rights), and Justice Goldberg's ultimate, rather equivocal reliance on the TEMPLE LAW REVIEW [Vol. 69 Ninth Amendment, see id. at 491-92 (Goldberg, J., concurring) (maintaining that Ninth Amendment protects right of privacy, although such right is not enumerated in Bill of Rights). After initially claiming that the purpose of the Ninth Amendment was to confirm that "there are additional fundamental rights . . . which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments," id. at 488, Justice Goldberg clarified that it was not his view that "the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government." Id. at 492 (Goldberg, J., concurring). Rather, he claimed, the Ninth Amendment "simply lends strong support to the view that the 'liberty' protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments." Id. at 493 (Goldberg, J., concurring). Although Justice Goldberg failed to explain why the Ninth Amendment might not be considered an "independent source" of constitutional rights, some commentators have suggested that this was because the Ninth Amendment merely states a "rule of construction" that presupposes that there are rights implicit in the social contract and which do not depend on recognition in the positive law text of the written Constitution. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 776 n.14 (2d ed. 1988) (contending that it is erroneous to presume Ninth Amendment rights because Ninth Amendment acts as "rule about how to read the Constitution . . . not a source of rights as such"). But the practical significance of such an analysis seems unclear, inasmuch as, to Justice Goldberg at least, such rights still appear to be candidates for judicial enforcement in the name of the Constitution, and hence might appropriately be referred to as "constitutional rights." Apparently, the point is only that they are viewed as preexisting rights that are "recognized" by the Constitution as being part of our fundamental law, rather than having their source in the Ninth Amendment or the Constitution, considered as a text. Cf. Griswold, 381 U.S. at 492 (Goldberg, J., concurring) (averring that Constitution's Framers intended Ninth Amendment to protect other fundamental, though unenumerated, rights). Alternatively, Justice Goldberg may have preferred not to treat the Ninth Amendment as the "source" of nontextual fundamental rights. He may simply have believed that it seemed more fitting to use the Ninth Amendment to justify a particular conception of "due process" fundamental liberty (one not limited to rights enumerated in some constitutional text), rather than to warrant a sudden departure from decades of precedent grounding fundamental rights decisions in the due process clauses of the Fifth and Fourteenth Amendments. This article will evaluate the basic thrust of the arguments in the debate over the meaning of the Ninth Amendment. However, this article will not seek to resolve the further issue of whether, in Justice Goldberg's view, the Amendment should be viewed as the source of fundamental constitutional rights, or merely as a textual allusion to nontextual rights precisely because the practical significance of Justice Goldberg's "independent source" disclaimer is uncertain and the rationale of the point unclear. See id. (Goldberg, J., concurring) (disavowing that Ninth Amendment constitutes "independent source" of protectable rights).
9. See, e.g., Derrick A. Pope, A Constitutional Window to Interpretive Reason: Or in Other Words . . . The Ninth Amendment, 37 How. L.J. 441, 443-44 (1994) (noting discord in Griswold between Justice Douglas's "Bill of Rights expedition" and Justice Goldberg's endorsement of rights not explicitly mentioned in Constitution).
10. See, e.g., Hodgson v. Minnesota, 497 U.S. 417, 447-48 (1990) (finding "integrity" of family unit protected by several constitutional provisions, including Ninth Amendment); Bowers v. Hardwick, 478 U.S. 186, 201 (1986) (Blackmun, J., dissenting) (recognizing that Ninth Amendment post-Griswold gives substance to Court's "understanding of privacy"); Richmond Newspapers v. Virginia, 448 U.S. 555, 579 & n.15 (1980) (noting that Court has acknowledged certain "unarticulated rights" implied in enumerated provisions of Constitution; finding in Ninth Amendment potential for "fundamental rights," not specifically articulated, but indispensable to enjoyment of other explicit rights of Constitution). See also Phoebe A. Haddon, An Essay on the Ninth Amendment; Interpretation for the New World Order, 2 TEMP. POL. & CIV. RTS. L. REV. 93, 93-94 (1992) (indicating that Supreme Court, although capable of finding unenumerated rights, has rarely applied Ninth Amendment when interpreting Constitution); id. at 117 (noting Supreme Court's reliance on history and tradition to narrowly confine rights that are "fundamental to existence" for many individuals outside of "dominant social culture").
11. See, e.g., Sanford Levinson, Constitutional Rhetoric and the Ninth Amendment, 64 CHI.-KENT L. REV. 131, 134-35 (1988) (contending that Judge Bork was deprived Supreme Court appointment, in part because he refused to acknowledge unenumerated constitutional right to privacy).
12. See Thomas B. McAffee, Prolegomena to a Meaningful Debate of the "Unwritten Constitution" Thesis, 61 U. CIN. L. REV. 107, 107 n.4 (1992), for citations to works published during the past decade on the implied limitations to government power and the expansion of individual rights. Since that list was compiled, the scholarly outpouring of works contending that the Ninth Amendment lends strong support to the existence of fundamental rights beyond the text of the Constitution has continued unabated. See, e.g., CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH AMENDMENT AND THE CONSTITUTION'S UNENUMERATED RIGHTS 114 (1995) (proposing that Ninth Amendment is better vehicle for recognizing enumerated rights than Due Process Clause); MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS 63-69 (1994) (claiming that Ninth Amendment presupposes existence of unenumerated affirmative rights); LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 54-55, 110-11 (1991) (noting that Ninth Amendment is rule of construction, and reiterating that Constitution's failure to enumerate right does not foreclose its existence); Charles L. Black, Jr., "One Nation Indivisible": Unnamed Human Rights in the States, 65 ST. JOHN'S L. REV. 17, 25 (1991) (Ninth Amendment commits United States to "protection of human rights generally"); David N. Mayer, The Natural Rights Basis of the Ninth Amendment: A Reply to Professor McAffee, 16 S. ILL. U. L.J. 313, 316-17 (1992) (noting that Madison's proposal for Ninth Amendment was intended to protect unenumerated rights, as well as to curb expansion of federal government's implied powers); Randall R. Murphy, The Framers' Evolutionary Perception of Rights: Using International Human Rights Norms as a Source for Discovery of Ninth Amendment Rights, 21 STETSON L. REV. 423, 426 (1992) (Ninth Amendment should be foundation for incorporation of individual rights into body of constitutionally protected liberties); Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment, 69 IND. L.J. 759, 762 (1994) (Ninth Amendment designed to protect unenumerated rights); Suzanna Sherry, Natural Law in the States, 61 U. CIN. L. REV. 171, 179-82 (1992) (Ninth Amendment and analogs in states' constitutions evince intent to safeguard inalienable rights); John C. Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 967, 969 (1993) (Framers of Fourteenth Amendment saw Ninth Amendment as means to extend protections of Privileges and Immunities Clause to rights beyond those in first eight Amendments).
13. See Thomas B. McAffee, Prolegomena to a Meaningful Debate of the "Unwritten Constitution" Thesis, 61 U. CIN. L. REV. 107, 107 n.4 (1992), for citations to works published during the past decade on the implied limitations to government power and the expansion of individual rights. Since that list was compiled, the scholarly outpouring of works contending that the Ninth Amendment lends strong support to the existence of fundamental rights beyond the text of the Constitution has continued unabated. See, e.g., CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH AMENDMENT AND THE CONSTITUTION'S UNENUMERATED RIGHTS 114 (1995) (proposing that Ninth Amendment is better vehicle for recognizing enumerated rights than Due Process Clause); MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS 63-69 (1994) (claiming that Ninth Amendment presupposes existence of unenumerated affirmative rights); LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 54-55, 110-11 (1991) (noting that Ninth Amendment is rule of construction, and reiterating that Constitution's failure to enumerate right does not foreclose its existence); Charles L. Black, Jr., "One Nation Indivisible": Unnamed Human Rights in the States, 65 ST. JOHN'S L. REV. 17, 25 (1991) (Ninth Amendment commits United States to "protection of human rights generally"); David N. Mayer, The Natural Rights Basis of the Ninth Amendment: A Reply to Professor McAffee, 16 S. ILL. U. L.J. 313, 316-17 (1992) (noting that Madison's proposal for Ninth Amendment was intended to protect unenumerated rights, as well as to curb expansion of federal government's implied powers); Randall R. Murphy, The Framers' Evolutionary Perception of Rights: Using International Human Rights Norms as a Source for Discovery of Ninth Amendment Rights, 21 STETSON L. REV. 423, 426 (1992) (Ninth Amendment should be foundation for incorporation of individual rights into body of constitutionally protected liberties); Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment, 69 IND. L.J. 759, 762 (1994) (Ninth Amendment designed to protect unenumerated rights); Suzanna Sherry, Natural Law in the States, 61 U. CIN. L. REV. 171, 179-82 (1992) (Ninth Amendment and analogs in states' constitutions evince intent to safeguard inalienable rights); John C. Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 967, 969 (1993) (Framers of Fourteenth Amendment saw Ninth Amendment as means to extend protections of Privileges and Immunities Clause to rights beyond those in first eight Amendments).
14. See Thomas B. McAffee, Prolegomena to a Meaningful Debate of the "Unwritten Constitution" Thesis, 61 U. CIN. L. REV. 107, 107 n.4 (1992), for citations to works published during the past decade on the implied limitations to government power and the expansion of individual rights. Since that list was compiled, the scholarly outpouring of works contending that the Ninth Amendment lends strong support to the existence of fundamental rights beyond the text of the Constitution has continued unabated. See, e.g., CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH AMENDMENT AND THE CONSTITUTION'S UNENUMERATED RIGHTS 114 (1995) (proposing that Ninth Amendment is better vehicle for recognizing enumerated rights than Due Process Clause); MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS 63-69 (1994) (claiming that Ninth Amendment presupposes existence of unenumerated affirmative rights); LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 54-55, 110-11 (1991) (noting that Ninth Amendment is rule of construction, and reiterating that Constitution's failure to enumerate right does not foreclose its existence); Charles L. Black, Jr., "One Nation Indivisible": Unnamed Human Rights in the States, 65 ST. JOHN'S L. REV. 17, 25 (1991) (Ninth Amendment commits United States to "protection of human rights generally"); David N. Mayer, The Natural Rights Basis of the Ninth Amendment: A Reply to Professor McAffee, 16 S. ILL. U. L.J. 313, 316-17 (1992) (noting that Madison's proposal for Ninth Amendment was intended to protect unenumerated rights, as well as to curb expansion of federal government's implied powers); Randall R. Murphy, The Framers' Evolutionary Perception of Rights: Using International Human Rights Norms as a Source for Discovery of Ninth Amendment Rights, 21 STETSON L. REV. 423, 426 (1992) (Ninth Amendment should be foundation for incorporation of individual rights into body of constitutionally protected liberties); Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment, 69 IND. L.J. 759, 762 (1994) (Ninth Amendment designed to protect unenumerated rights); Suzanna Sherry, Natural Law in the States, 61 U. CIN. L. REV. 171, 179-82 (1992) (Ninth Amendment and analogs in states' constitutions evince intent to safeguard inalienable rights); John C. Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 967, 969 (1993) (Framers of Fourteenth Amendment saw Ninth Amendment as means to extend protections of Privileges and Immunities Clause to rights beyond those in first eight Amendments).
15. See Thomas B. McAffee, Prolegomena to a Meaningful Debate of the "Unwritten Constitution" Thesis, 61 U. CIN. L. REV. 107, 107 n.4 (1992), for citations to works published during the past decade on the implied limitations to government power and the expansion of individual rights. Since that list was compiled, the scholarly outpouring of works contending that the Ninth Amendment lends strong support to the existence of fundamental rights beyond the text of the Constitution has continued unabated. See, e.g., CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH AMENDMENT AND THE CONSTITUTION'S UNENUMERATED RIGHTS 114 (1995) (proposing that Ninth Amendment is better vehicle for recognizing enumerated rights than Due Process Clause); MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS 63-69 (1994) (claiming that Ninth Amendment presupposes existence of unenumerated affirmative rights); LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 54-55, 110-11 (1991) (noting that Ninth Amendment is rule of construction, and reiterating that Constitution's failure to enumerate right does not foreclose its existence); Charles L. Black, Jr., "One Nation Indivisible": Unnamed Human Rights in the States, 65 ST. JOHN'S L. REV. 17, 25 (1991) (Ninth Amendment commits United States to "protection of human rights generally"); David N. Mayer, The Natural Rights Basis of the Ninth Amendment: A Reply to Professor McAffee, 16 S. ILL. U. L.J. 313, 316-17 (1992) (noting that Madison's proposal for Ninth Amendment was intended to protect unenumerated rights, as well as to curb expansion of federal government's implied powers); Randall R. Murphy, The Framers' Evolutionary Perception of Rights: Using International Human Rights Norms as a Source for Discovery of Ninth Amendment Rights, 21 STETSON L. REV. 423, 426 (1992) (Ninth Amendment should be foundation for incorporation of individual rights into body of constitutionally protected liberties); Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment, 69 IND. L.J. 759, 762 (1994) (Ninth Amendment designed to protect unenumerated rights); Suzanna Sherry, Natural Law in the States, 61 U. CIN. L. REV. 171, 179-82 (1992) (Ninth Amendment and analogs in states' constitutions evince intent to safeguard inalienable rights); John C. Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 967, 969 (1993) (Framers of Fourteenth Amendment saw Ninth Amendment as means to extend protections of Privileges and Immunities Clause to rights beyond those in first eight Amendments).
16. See Thomas B. McAffee, Prolegomena to a Meaningful Debate of the "Unwritten Constitution" Thesis, 61 U. CIN. L. REV. 107, 107 n.4 (1992), for citations to works published during the past decade on the implied limitations to government power and the expansion of individual rights. Since that list was compiled, the scholarly outpouring of works contending that the Ninth Amendment lends strong support to the existence of fundamental rights beyond the text of the Constitution has continued unabated. See, e.g., CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH AMENDMENT AND THE CONSTITUTION'S UNENUMERATED RIGHTS 114 (1995) (proposing that Ninth Amendment is better vehicle for recognizing enumerated rights than Due Process Clause); MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS 63-69 (1994) (claiming that Ninth Amendment presupposes existence of unenumerated affirmative rights); LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 54-55, 110-11 (1991) (noting that Ninth Amendment is rule of construction, and reiterating that Constitution's failure to enumerate right does not foreclose its existence); Charles L. Black, Jr., "One Nation Indivisible": Unnamed Human Rights in the States, 65 ST. JOHN'S L. REV. 17, 25 (1991) (Ninth Amendment commits United States to "protection of human rights generally"); David N. Mayer, The Natural Rights Basis of the Ninth Amendment: A Reply to Professor McAffee, 16 S. ILL. U. L.J. 313, 316-17 (1992) (noting that Madison's proposal for Ninth Amendment was intended to protect unenumerated rights, as well as to curb expansion of federal government's implied powers); Randall R. Murphy, The Framers' Evolutionary Perception of Rights: Using International Human Rights Norms as a Source for Discovery of Ninth Amendment Rights, 21 STETSON L. REV. 423, 426 (1992) (Ninth Amendment should be foundation for incorporation of individual rights into body of constitutionally protected liberties); Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment, 69 IND. L.J. 759, 762 (1994) (Ninth Amendment designed to protect unenumerated rights); Suzanna Sherry, Natural Law in the States, 61 U. CIN. L. REV. 171, 179-82 (1992) (Ninth Amendment and analogs in states' constitutions evince intent to safeguard inalienable rights); John C. Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 967, 969 (1993) (Framers of Fourteenth Amendment saw Ninth Amendment as means to extend protections of Privileges and Immunities Clause to rights beyond those in first eight Amendments).
17. See Thomas B. McAffee, Prolegomena to a Meaningful Debate of the "Unwritten Constitution" Thesis, 61 U. CIN. L. REV. 107, 107 n.4 (1992), for citations to works published during the past decade on the implied limitations to government power and the expansion of individual rights. Since that list was compiled, the scholarly outpouring of works contending that the Ninth Amendment lends strong support to the existence of fundamental rights beyond the text of the Constitution has continued unabated. See, e.g., CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH AMENDMENT AND THE CONSTITUTION'S UNENUMERATED RIGHTS 114 (1995) (proposing that Ninth Amendment is better vehicle for recognizing enumerated rights than Due Process Clause); MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS 63-69 (1994) (claiming that Ninth Amendment presupposes existence of unenumerated affirmative rights); LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 54-55, 110-11 (1991) (noting that Ninth Amendment is rule of construction, and reiterating that Constitution's failure to enumerate right does not foreclose its existence); Charles L. Black, Jr., "One Nation Indivisible": Unnamed Human Rights in the States, 65 ST. JOHN'S L. REV. 17, 25 (1991) (Ninth Amendment commits United States to "protection of human rights generally"); David N. Mayer, The Natural Rights Basis of the Ninth Amendment: A Reply to Professor McAffee, 16 S. ILL. U. L.J. 313, 316-17 (1992) (noting that Madison's proposal for Ninth Amendment was intended to protect unenumerated rights, as well as to curb expansion of federal government's implied powers); Randall R. Murphy, The Framers' Evolutionary Perception of Rights: Using International Human Rights Norms as a Source for Discovery of Ninth Amendment Rights, 21 STETSON L. REV. 423, 426 (1992) (Ninth Amendment should be foundation for incorporation of individual rights into body of constitutionally protected liberties); Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment, 69 IND. L.J. 759, 762 (1994) (Ninth Amendment designed to protect unenumerated rights); Suzanna Sherry, Natural Law in the States, 61 U. CIN. L. REV. 171, 179-82 (1992) (Ninth Amendment and analogs in states' constitutions evince intent to safeguard inalienable rights); John C. Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 967, 969 (1993) (Framers of Fourteenth Amendment saw Ninth Amendment as means to extend protections of Privileges and Immunities Clause to rights beyond those in first eight Amendments).
18. See Thomas B. McAffee, Prolegomena to a Meaningful Debate of the "Unwritten Constitution" Thesis, 61 U. CIN. L. REV. 107, 107 n.4 (1992), for citations to works published during the past decade on the implied limitations to government power and the expansion of individual rights. Since that list was compiled, the scholarly outpouring of works contending that the Ninth Amendment lends strong support to the existence of fundamental rights beyond the text of the Constitution has continued unabated. See, e.g., CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH AMENDMENT AND THE CONSTITUTION'S UNENUMERATED RIGHTS 114 (1995) (proposing that Ninth Amendment is better vehicle for recognizing enumerated rights than Due Process Clause); MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS 63-69 (1994) (claiming that Ninth Amendment presupposes existence of unenumerated affirmative rights); LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 54-55, 110-11 (1991) (noting that Ninth Amendment is rule of construction, and reiterating that Constitution's failure to enumerate right does not foreclose its existence); Charles L. Black, Jr., "One Nation Indivisible": Unnamed Human Rights in the States, 65 ST. JOHN'S L. REV. 17, 25 (1991) (Ninth Amendment commits United States to "protection of human rights generally"); David N. Mayer, The Natural Rights Basis of the Ninth Amendment: A Reply to Professor McAffee, 16 S. ILL. U. L.J. 313, 316-17 (1992) (noting that Madison's proposal for Ninth Amendment was intended to protect unenumerated rights, as well as to curb expansion of federal government's implied powers); Randall R. Murphy, The Framers' Evolutionary Perception of Rights: Using International Human Rights Norms as a Source for Discovery of Ninth Amendment Rights, 21 STETSON L. REV. 423, 426 (1992) (Ninth Amendment should be foundation for incorporation of individual rights into body of constitutionally protected liberties); Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment, 69 IND. L.J. 759, 762 (1994) (Ninth Amendment designed to protect unenumerated rights); Suzanna Sherry, Natural Law in the States, 61 U. CIN. L. REV. 171, 179-82 (1992) (Ninth Amendment and analogs in states' constitutions evince intent to safeguard inalienable rights); John C. Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 967, 969 (1993) (Framers of Fourteenth Amendment saw Ninth Amendment as means to extend protections of Privileges and Immunities Clause to rights beyond those in first eight Amendments).
19. See Thomas B. McAffee, Prolegomena to a Meaningful Debate of the "Unwritten Constitution" Thesis, 61 U. CIN. L. REV. 107, 107 n.4 (1992), for citations to works published during the past decade on the implied limitations to government power and the expansion of individual rights. Since that list was compiled, the scholarly outpouring of works contending that the Ninth Amendment lends strong support to the existence of fundamental rights beyond the text of the Constitution has continued unabated. See, e.g., CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH AMENDMENT AND THE CONSTITUTION'S UNENUMERATED RIGHTS 114 (1995) (proposing that Ninth Amendment is better vehicle for recognizing enumerated rights than Due Process Clause); MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS 63-69 (1994) (claiming that Ninth Amendment presupposes existence of unenumerated affirmative rights); LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 54-55, 110-11 (1991) (noting that Ninth Amendment is rule of construction, and reiterating that Constitution's failure to enumerate right does not foreclose its existence); Charles L. Black, Jr., "One Nation Indivisible": Unnamed Human Rights in the States, 65 ST. JOHN'S L. REV. 17, 25 (1991) (Ninth Amendment commits United States to "protection of human rights generally"); David N. Mayer, The Natural Rights Basis of the Ninth Amendment: A Reply to Professor McAffee, 16 S. ILL. U. L.J. 313, 316-17 (1992) (noting that Madison's proposal for Ninth Amendment was intended to protect unenumerated rights, as well as to curb expansion of federal government's implied powers); Randall R. Murphy, The Framers' Evolutionary Perception of Rights: Using International Human Rights Norms as a Source for Discovery of Ninth Amendment Rights, 21 STETSON L. REV. 423, 426 (1992) (Ninth Amendment should be foundation for incorporation of individual rights into body of constitutionally protected liberties); Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment, 69 IND. L.J. 759, 762 (1994) (Ninth Amendment designed to protect unenumerated rights); Suzanna Sherry, Natural Law in the States, 61 U. CIN. L. REV. 171, 179-82 (1992) (Ninth Amendment and analogs in states' constitutions evince intent to safeguard inalienable rights); John C. Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 967, 969 (1993) (Framers of Fourteenth Amendment saw Ninth Amendment as means to extend protections of Privileges and Immunities Clause to rights beyond those in first eight Amendments).
20. See Thomas B. McAffee, Prolegomena to a Meaningful Debate of the "Unwritten Constitution" Thesis, 61 U. CIN. L. REV. 107, 107 n.4 (1992), for citations to works published during the past decade on the implied limitations to government power and the expansion of individual rights. Since that list was compiled, the scholarly outpouring of works contending that the Ninth Amendment lends strong support to the existence of fundamental rights beyond the text of the Constitution has continued unabated. See, e.g., CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH AMENDMENT AND THE CONSTITUTION'S UNENUMERATED RIGHTS 114 (1995) (proposing that Ninth Amendment is better vehicle for recognizing enumerated rights than Due Process Clause); MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS 63-69 (1994) (claiming that Ninth Amendment presupposes existence of unenumerated affirmative rights); LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 54-55, 110-11 (1991) (noting that Ninth Amendment is rule of construction, and reiterating that Constitution's failure to enumerate right does not foreclose its existence); Charles L. Black, Jr., "One Nation Indivisible": Unnamed Human Rights in the States, 65 ST. JOHN'S L. REV. 17, 25 (1991) (Ninth Amendment commits United States to "protection of human rights generally"); David N. Mayer, The Natural Rights Basis of the Ninth Amendment: A Reply to Professor McAffee, 16 S. ILL. U. L.J. 313, 316-17 (1992) (noting that Madison's proposal for Ninth Amendment was intended to protect unenumerated rights, as well as to curb expansion of federal government's implied powers); Randall R. Murphy, The Framers' Evolutionary Perception of Rights: Using International Human Rights Norms as a Source for Discovery of Ninth Amendment Rights, 21 STETSON L. REV. 423, 426 (1992) (Ninth Amendment should be foundation for incorporation of individual rights into body of constitutionally protected liberties); Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment, 69 IND. L.J. 759, 762 (1994) (Ninth Amendment designed to protect unenumerated rights); Suzanna Sherry, Natural Law in the States, 61 U. CIN. L. REV. 171, 179-82 (1992) (Ninth Amendment and analogs in states' constitutions evince intent to safeguard inalienable rights); John C. Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 967, 969 (1993) (Framers of Fourteenth Amendment saw Ninth Amendment as means to extend protections of Privileges and Immunities Clause to rights beyond those in first eight Amendments).
21. See Thomas B. McAffee, Prolegomena to a Meaningful Debate of the "Unwritten Constitution" Thesis, 61 U. CIN. L. REV. 107, 107 n.4 (1992), for citations to works published during the past decade on the implied limitations to government power and the expansion of individual rights. Since that list was compiled, the scholarly outpouring of works contending that the Ninth Amendment lends strong support to the existence of fundamental rights beyond the text of the Constitution has continued unabated. See, e.g., CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH AMENDMENT AND THE CONSTITUTION'S UNENUMERATED RIGHTS 114 (1995) (proposing that Ninth Amendment is better vehicle for recognizing enumerated rights than Due Process Clause); MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS 63-69 (1994) (claiming that Ninth Amendment presupposes existence of unenumerated affirmative rights); LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 54-55, 110-11 (1991) (noting that Ninth Amendment is rule of construction, and reiterating that Constitution's failure to enumerate right does not foreclose its existence); Charles L. Black, Jr., "One Nation Indivisible": Unnamed Human Rights in the States, 65 ST. JOHN'S L. REV. 17, 25 (1991) (Ninth Amendment commits United States to "protection of human rights generally"); David N. Mayer, The Natural Rights Basis of the Ninth Amendment: A Reply to Professor McAffee, 16 S. ILL. U. L.J. 313, 316-17 (1992) (noting that Madison's proposal for Ninth Amendment was intended to protect unenumerated rights, as well as to curb expansion of federal government's implied powers); Randall R. Murphy, The Framers' Evolutionary Perception of Rights: Using International Human Rights Norms as a Source for Discovery of Ninth Amendment Rights, 21 STETSON L. REV. 423, 426 (1992) (Ninth Amendment should be foundation for incorporation of individual rights into body of constitutionally protected liberties); Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment, 69 IND. L.J. 759, 762 (1994) (Ninth Amendment designed to protect unenumerated rights); Suzanna Sherry, Natural Law in the States, 61 U. CIN. L. REV. 171, 179-82 (1992) (Ninth Amendment and analogs in states' constitutions evince intent to safeguard inalienable rights); John C. Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 967, 969 (1993) (Framers of Fourteenth Amendment saw Ninth Amendment as means to extend protections of Privileges and Immunities Clause to rights beyond those in first eight Amendments).
22. Laurence H. Tribe, Contrasting Constitutional Visions: Of Real and Unreal Differences, 22 HARV. C.R.-C.L. L. REV. 95, 100 (1987). See infra Part VI for a discussion of the significance of arguments grounded in the Ninth Amendment to recent scholarly debate over the very nature of our constitutional order.
23. JOHN H. ELY, DEMOCRACY AND DISTRUST 34 (1980). Ely suggested that novel rights arguments could be greeted with: "What are you planning to rely on to support that argument. Lester, the Ninth Amendment?" Id.
24. For the "traditional understanding" of the Ninth Amendment, see United Pub. Workers v. Mitchell, 330 U.S. 75, 95-96 (1947) (rights reserved under Ninth Amendment must yield to valid exercise of power granted to federal government).
25. See supra note 11 for several proponents of the "fundamental rights" reading of the Ninth Amendment.
26. Several relatively recent works have criticized the "fundamental rights" interpretation of the Ninth Amendment. See, e.g., James H. Hutson, The Bill of Rights in the American Revolutionary Experience, in A CULTURE OF RIGHTS: THE BILL OF RIGHTS IN PHILOSOPHY, POLITICS, AND LAW - 1791-1991 62, 89-95 (Michael J. Lacey & Knud Haakonsen eds., 1991) (Ninth Amendment is reservation against unlimited federal power and not repository of natural rights); Philip A. Hamburger, The Constitution's Accommodation of Social Change, 88 MICH. L. REV. 239, 315-17 (1989) (unenumerated rights referred to in Ninth Amendment are defined by limits on Federal Constitutional authority); Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226, 269-73 (1988) (Ninth Amendment not intended to "provide for an ongoing and unpredictable redefinition of rights"); Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 COLUM. L. REV. 1215, 1221 (1990) (Ninth Amendment protects rights reserved residually from powers explicitly granted to federal government); Michael W. McConnell, A Moral Realist Defense of Constitutional Democracy, 64 CHI.-KENT L. REV. 89, 94-95 (1988) (unenumerated rights protected by Ninth Amendment may stem from many sources, but not from any judge's personal views); Arthur E. Wilmarth, Jr., The Original Purpose of the Bill of Rights: James Madison and the Founders' Search for a Workable Balance Between Federal and State Power, 26 AM. CRIM. L. REV. 1261, 1297-98, 1301-03 (1989) (Ninth Amendment reserved to people unenumerated rights which were to be defined in each state; Ninth and Tenth Amendments were intended to work in tandem to curb expansion of federal powers).
27. Several relatively recent works have criticized the "fundamental rights" interpretation of the Ninth Amendment. See, e.g., James H. Hutson, The Bill of Rights in the American Revolutionary Experience, in A CULTURE OF RIGHTS: THE BILL OF RIGHTS IN PHILOSOPHY, POLITICS, AND LAW - 1791-1991 62, 89-95 (Michael J. Lacey & Knud Haakonsen eds., 1991) (Ninth Amendment is reservation against unlimited federal power and not repository of natural rights); Philip A. Hamburger, The Constitution's Accommodation of Social Change, 88 MICH. L. REV. 239, 315-17 (1989) (unenumerated rights referred to in Ninth Amendment are defined by limits on Federal Constitutional authority); Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226, 269-73 (1988) (Ninth Amendment not intended to "provide for an ongoing and unpredictable redefinition of rights"); Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 COLUM. L. REV. 1215, 1221 (1990) (Ninth Amendment protects rights reserved residually from powers explicitly granted to federal government); Michael W. McConnell, A Moral Realist Defense of Constitutional Democracy, 64 CHI.-KENT L. REV. 89, 94-95 (1988) (unenumerated rights protected by Ninth Amendment may stem from many sources, but not from any judge's personal views); Arthur E. Wilmarth, Jr., The Original Purpose of the Bill of Rights: James Madison and the Founders' Search for a Workable Balance Between Federal and State Power, 26 AM. CRIM. L. REV. 1261, 1297-98, 1301-03 (1989) (Ninth Amendment reserved to people unenumerated rights which were to be defined in each state; Ninth and Tenth Amendments were intended to work in tandem to curb expansion of federal powers).
28. Several relatively recent works have criticized the "fundamental rights" interpretation of the Ninth Amendment. See, e.g., James H. Hutson, The Bill of Rights in the American Revolutionary Experience, in A CULTURE OF RIGHTS: THE BILL OF RIGHTS IN PHILOSOPHY, POLITICS, AND LAW - 1791-1991 62, 89-95 (Michael J. Lacey & Knud Haakonsen eds., 1991) (Ninth Amendment is reservation against unlimited federal power and not repository of natural rights); Philip A. Hamburger, The Constitution's Accommodation of Social Change, 88 MICH. L. REV. 239, 315-17 (1989) (unenumerated rights referred to in Ninth Amendment are defined by limits on Federal Constitutional authority); Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226, 269-73 (1988) (Ninth Amendment not intended to "provide for an ongoing and unpredictable redefinition of rights"); Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 COLUM. L. REV. 1215, 1221 (1990) (Ninth Amendment protects rights reserved residually from powers explicitly granted to federal government); Michael W. McConnell, A Moral Realist Defense of Constitutional Democracy, 64 CHI.-KENT L. REV. 89, 94-95 (1988) (unenumerated rights protected by Ninth Amendment may stem from many sources, but not from any judge's personal views); Arthur E. Wilmarth, Jr., The Original Purpose of the Bill of Rights: James Madison and the Founders' Search for a Workable Balance Between Federal and State Power, 26 AM. CRIM. L. REV. 1261, 1297-98, 1301-03 (1989) (Ninth Amendment reserved to people unenumerated rights which were to be defined in each state; Ninth and Tenth Amendments were intended to work in tandem to curb expansion of federal powers).
29. Several relatively recent works have criticized the "fundamental rights" interpretation of the Ninth Amendment. See, e.g., James H. Hutson, The Bill of Rights in the American Revolutionary Experience, in A CULTURE OF RIGHTS: THE BILL OF RIGHTS IN PHILOSOPHY, POLITICS, AND LAW - 1791-1991 62, 89-95 (Michael J. Lacey & Knud Haakonsen eds., 1991) (Ninth Amendment is reservation against unlimited federal power and not repository of natural rights); Philip A. Hamburger, The Constitution's Accommodation of Social Change, 88 MICH. L. REV. 239, 315-17 (1989) (unenumerated rights referred to in Ninth Amendment are defined by limits on Federal Constitutional authority); Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226, 269-73 (1988) (Ninth Amendment not intended to "provide for an ongoing and unpredictable redefinition of rights"); Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 COLUM. L. REV. 1215, 1221 (1990) (Ninth Amendment protects rights reserved residually from powers explicitly granted to federal government); Michael W. McConnell, A Moral Realist Defense of Constitutional Democracy, 64 CHI.-KENT L. REV. 89, 94-95 (1988) (unenumerated rights protected by Ninth Amendment may stem from many sources, but not from any judge's personal views); Arthur E. Wilmarth, Jr., The Original Purpose of the Bill of Rights: James Madison and the Founders' Search for a Workable Balance Between Federal and State Power, 26 AM. CRIM. L. REV. 1261, 1297-98, 1301-03 (1989) (Ninth Amendment reserved to people unenumerated rights which were to be defined in each state; Ninth and Tenth Amendments were intended to work in tandem to curb expansion of federal powers).
30. Several relatively recent works have criticized the "fundamental rights" interpretation of the Ninth Amendment. See, e.g., James H. Hutson, The Bill of Rights in the American Revolutionary Experience, in A CULTURE OF RIGHTS: THE BILL OF RIGHTS IN PHILOSOPHY, POLITICS, AND LAW - 1791-1991 62, 89-95 (Michael J. Lacey & Knud Haakonsen eds., 1991) (Ninth Amendment is reservation against unlimited federal power and not repository of natural rights); Philip A. Hamburger, The Constitution's Accommodation of Social Change, 88 MICH. L. REV. 239, 315-17 (1989) (unenumerated rights referred to in Ninth Amendment are defined by limits on Federal Constitutional authority); Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226, 269-73 (1988) (Ninth Amendment not intended to "provide for an ongoing and unpredictable redefinition of rights"); Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 COLUM. L. REV. 1215, 1221 (1990) (Ninth Amendment protects rights reserved residually from powers explicitly granted to federal government); Michael W. McConnell, A Moral Realist Defense of Constitutional Democracy, 64 CHI.-KENT L. REV. 89, 94-95 (1988) (unenumerated rights protected by Ninth Amendment may stem from many sources, but not from any judge's personal views); Arthur E. Wilmarth, Jr., The Original Purpose of the Bill of Rights: James Madison and the Founders' Search for a Workable Balance Between Federal and State Power, 26 AM. CRIM. L. REV. 1261, 1297-98, 1301-03 (1989) (Ninth Amendment reserved to people unenumerated rights which were to be defined in each state; Ninth and Tenth Amendments were intended to work in tandem to curb expansion of federal powers).
31. Several relatively recent works have criticized the "fundamental rights" interpretation of the Ninth Amendment. See, e.g., James H. Hutson, The Bill of Rights in the American Revolutionary Experience, in A CULTURE OF RIGHTS: THE BILL OF RIGHTS IN PHILOSOPHY, POLITICS, AND LAW - 1791-1991 62, 89-95 (Michael J. Lacey & Knud Haakonsen eds., 1991) (Ninth Amendment is reservation against unlimited federal power and not repository of natural rights); Philip A. Hamburger, The Constitution's Accommodation of Social Change, 88 MICH. L. REV. 239, 315-17 (1989) (unenumerated rights referred to in Ninth Amendment are defined by limits on Federal Constitutional authority); Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226, 269-73 (1988) (Ninth Amendment not intended to "provide for an ongoing and unpredictable redefinition of rights"); Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 COLUM. L. REV. 1215, 1221 (1990) (Ninth Amendment protects rights reserved residually from powers explicitly granted to federal government); Michael W. McConnell, A Moral Realist Defense of Constitutional Democracy, 64 CHI.-KENT L. REV. 89, 94-95 (1988) (unenumerated rights protected by Ninth Amendment may stem from many sources, but not from any judge's personal views); Arthur E. Wilmarth, Jr., The Original Purpose of the Bill of Rights: James Madison and the Founders' Search for a Workable Balance Between Federal and State Power, 26 AM. CRIM. L. REV. 1261, 1297-98, 1301-03 (1989) (Ninth Amendment reserved to people unenumerated rights which were to be defined in each state; Ninth and Tenth Amendments were intended to work in tandem to curb expansion of federal powers).
32. See infra notes 20-25 and accompanying text for a discussion of the rights-focused interpretation of the Amendment.
33. See infra notes 40-52 and accompanying text for a discussion of the Federalists' objections to the Bill of Rights as dangerous and a possible threat to individual rights.
34. The Tenth Amendment reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. CONST, amend. X. See infra notes 101-11 and accompanying text for an explanation of the redundancy argument and responses to it.
35. McAffee, supra note 16, at 1227.
36. 2 JAMES MADISON, DEBATES IN THE FEDERAL CONVENTION OF 1787 565 (Gaillard Hunt & James Scott eds., 1987).
37. Letter from George Washington to Lafayette, in 29 THE WRTTINGS OF GEORGE WASHINGTON 475, 478 (John Fitzpatrick ed., 1939). The Federalists often pointed to the precedent of the Articles of Confederation which relied on the limited grant of powers to the nation and omitted a bill of rights. See, e.g., THE FEDERALIST No. 38, at 247 (James Madison) (Jacob Cooke ed., 1961) ("Is a Bill of Rights essential to liberty? The Confederation had no Bill of Rights.").
38. Letter from George Washington to Lafayette, in 29 THE WRTTINGS OF GEORGE WASHINGTON 475, 478 (John Fitzpatrick ed., 1939). The Federalists often pointed to the precedent of the Articles of Confederation which relied on the limited grant of powers to the nation and omitted a bill of rights. See, e.g., THE FEDERALIST No. 38, at 247 (James Madison) (Jacob Cooke ed., 1961) ("Is a Bill of Rights essential to liberty? The Confederation had no Bill of Rights.").
39. See infra notes 31-33 and accompanying text for a discussion of the Ninth Amendment as governing the residual rights not granted in the enumerated and limited federal powers.
40. See infra notes 41-48 and accompanying text for a discussion of James Wilson's salient objections to the inclusion of a bill of rights in the Constitution because it would threaten to relinquish to the government any rights absent from the specific enumeration.
41. See infra notes 108-12 and accompanying text for an example of traditionalist arguments.
42. Cf., Douglas Laycock, Taking Constitutions Seriously: A Theory of Judicial Review, 59 TEX. L. REV. 343, 352 (1981) (reviewing JOHN H. ELY, DEMOCRACY AND DISTRUST (1980)) (arguing that text of amendments, not their legislative history, is law to be followed); Stephen Macedo, Reasons, Rhetoric, and the Ninth Amendment: A Comment on Sanford Levinson, 64 CHI.-KENT L. REV. 163, 168 (1988) (source of unenumerated rights is found in detailed reading of other Constitutional provisions; therefore, Ninth Amendment's meaning is plain).
43. Cf., Douglas Laycock, Taking Constitutions Seriously: A Theory of Judicial Review, 59 TEX. L. REV. 343, 352 (1981) (reviewing JOHN H. ELY, DEMOCRACY AND DISTRUST (1980)) (arguing that text of amendments, not their legislative history, is law to be followed); Stephen Macedo, Reasons, Rhetoric, and the Ninth Amendment: A Comment on Sanford Levinson, 64 CHI.-KENT L. REV. 163, 168 (1988) (source of unenumerated rights is found in detailed reading of other Constitutional provisions; therefore, Ninth Amendment's meaning is plain).
44. Cf., Douglas Laycock, Taking Constitutions Seriously: A Theory of Judicial Review, 59 TEX. L. REV. 343, 352 (1981) (reviewing JOHN H. ELY, DEMOCRACY AND DISTRUST (1980)) (arguing that text of amendments, not their legislative history, is law to be followed); Stephen Macedo, Reasons, Rhetoric, and the Ninth Amendment: A Comment on Sanford Levinson, 64 CHI.-KENT L. REV. 163, 168 (1988) (source of unenumerated rights is found in detailed reading of other Constitutional provisions; therefore, Ninth Amendment's meaning is plain).
45. See Calvin R. Massey, The Natural Law Component of the Ninth Amendment, 61 U. CIN. L. REV. 49, 52-79 (1992) (tracing legal and political concepts that were incorporated into Ninth Amendment).
46. Id. at 94 (noting that Framers perceived Ninth Amendment as sole means to prevent "bloat" of delegated powers to government, and thus preserve natural rights for citizens); Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. CHI. L. REV. 1127, 1129-30 (1987) (noting that colonists relied heavily on English rhetoric, and amorphous nature of English unwritten law).
47. Laycock, supra note 26, at 352.
48. See, e.g., Massey,supra note 27, at 53-54 (noting that early Americans associated inherited rights with English constitution, and with natural "rights of Englishmen"); Calvin R. Massey, Federalism and Fundamental Rights: The Ninth Amendment, 38 HASTINGS L.J. 305, 321-22 (1987) (noting that Ninth Amendment serves as barrier to federal encroachment on people's "natural rights").
49. See 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 151, 153 (Jonathan Elliot ed., 2d ed. 1866) (Dr. Charles Jarvis, Massachusetts Ratifying Convention, Feb. 4, 1788, commenting that "by positively securing what is not expressly delegated," Article I of the proposed Constitution provides "an explicit reservation of every right and privilege which is nearest and most agreeable to the people") [hereinafter EL-LIOT'S DEBATES].
50. See 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 151, 153 (Jonathan Elliot ed., 2d ed. 1866) (Dr. Charles Jarvis, Massachusetts Ratifying Convention, Feb. 4, 1788, commenting that "by positively securing what is not expressly delegated," Article I of the proposed Constitution provides "an explicit reservation of every right and privilege which is nearest and most agreeable to the people") [hereinafter EL-LIOT'S DEBATES].
51. See supra notes 5-6 and accompanying text for a discussion of Justice Stewart's and Justice Black's arguments in Griswold about the applications of the Ninth Amendment.
52. See BERNARD SCHWARTZ, THE GREAT RIGHTS OF MANKIND 198-99 (expand. ed. 1992). As Professor Schwartz observed, the Ninth Amendment is the only provision contained in the Bill of Rights that has no clear antecedent in the English constitution, the common law, the revolutionary period, or the Articles of Confederation. Id. By contrast, Professor Black's stark claim that the Declaration of Independence is "an obvious precursor" of the Ninth Amendment, and thus operates in pari materia with it, simply assumes what must be established. See Black, supra note 11, at 26. In fact, the historical evidence strongly supports the view that the Ninth Amendment was drafted to address a particular concern about the structural protection offered to rights by the Constitution as originally drafted and bears no relationship to the Declaration of Independence's allusion to inalienable rights. See Sotirios A. Barber, The Ninth Amendment: Inkblot or Another Hard Nut to Crack?, 64 CHI.-KENT L. REV. 67, 68-71 (1988) (discussing Ninth Amendment and inalienable rights); see also Harry V. Jaffa, Slaying the Dragon of Bad Originalurn: Jaffa Answers Cooper, 1995 PUB. INT. L. REV. 209, 213 (author's response to review of his ORIGINAL INTENT AND THE FRAMERS OF THE CONSTITUTION: A DISPUTED QUESTION (1994)) (finding it impossible to reconcile inalienable rights reserved for individuals under Declaration of Independence with slave ownership as originally permitted under Constitution).
53. See BERNARD SCHWARTZ, THE GREAT RIGHTS OF MANKIND 198-99 (expand. ed. 1992). As Professor Schwartz observed, the Ninth Amendment is the only provision contained in the Bill of Rights that has no clear antecedent in the English constitution, the common law, the revolutionary period, or the Articles of Confederation. Id. By contrast, Professor Black's stark claim that the Declaration of Independence is "an obvious precursor" of the Ninth Amendment, and thus operates in pari materia with it, simply assumes what must be established. See Black, supra note 11, at 26. In fact, the historical evidence strongly supports the view that the Ninth Amendment was drafted to address a particular concern about the structural protection offered to rights by the Constitution as originally drafted and bears no relationship to the Declaration of Independence's allusion to inalienable rights. See Sotirios A. Barber, The Ninth Amendment: Inkblot or Another Hard Nut to Crack?, 64 CHI.-KENT L. REV. 67, 68-71 (1988) (discussing Ninth Amendment and inalienable rights); see also Harry V. Jaffa, Slaying the Dragon of Bad Originalurn: Jaffa Answers Cooper, 1995 PUB. INT. L. REV. 209, 213 (author's response to review of his ORIGINAL INTENT AND THE FRAMERS OF THE CONSTITUTION: A DISPUTED QUESTION (1994)) (finding it impossible to reconcile inalienable rights reserved for individuals under Declaration of Independence with slave ownership as originally permitted under Constitution).
54. See BERNARD SCHWARTZ, THE GREAT RIGHTS OF MANKIND 198-99 (expand. ed. 1992). As Professor Schwartz observed, the Ninth Amendment is the only provision contained in the Bill of Rights that has no clear antecedent in the English constitution, the common law, the revolutionary period, or the Articles of Confederation. Id. By contrast, Professor Black's stark claim that the Declaration of Independence is "an obvious precursor" of the Ninth Amendment, and thus operates in pari materia with it, simply assumes what must be established. See Black, supra note 11, at 26. In fact, the historical evidence strongly supports the view that the Ninth Amendment was drafted to address a particular concern about the structural protection offered to rights by the Constitution as originally drafted and bears no relationship to the Declaration of Independence's allusion to inalienable rights. See Sotirios A. Barber, The Ninth Amendment: Inkblot or Another Hard Nut to Crack?, 64 CHI.-KENT L. REV. 67, 68-71 (1988) (discussing Ninth Amendment and inalienable rights); see also Harry V. Jaffa, Slaying the Dragon of Bad Originalurn: Jaffa Answers Cooper, 1995 PUB. INT. L. REV. 209, 213 (author's response to review of his ORIGINAL INTENT AND THE FRAMERS OF THE CONSTITUTION: A DISPUTED QUESTION (1994)) (finding it impossible to reconcile inalienable rights reserved for individuals under Declaration of Independence with slave ownership as originally permitted under Constitution).
55. See BERNARD SCHWARTZ, THE GREAT RIGHTS OF MANKIND 198-99 (expand. ed. 1992). As Professor Schwartz observed, the Ninth Amendment is the only provision contained in the Bill of Rights that has no clear antecedent in the English constitution, the common law, the revolutionary period, or the Articles of Confederation. Id. By contrast, Professor Black's stark claim that the Declaration of Independence is "an obvious precursor" of the Ninth Amendment, and thus operates in pari materia with it, simply assumes what must
56. These have been the standard techniques of common law statutory construction at least since Heydon's Case, which enjoined interpreters to determine "the mischief and defect" in the prior law, and then to seek the "remedy" which the legislature "appointed to cure the disease . . . . " 76 Eng. Rep. 637, 638 (K.B. 1584). In general, judges were to construe the statute so as to "suppress the mischief" and "advance the remedy." Id.
57. See McAffee, supra note 16, at 1248-50 for confirmation of the near-universal agreement that the Ninth Amendment is linked to this debate.
58. See id. at 1228-29 for an overview of the Antifederalists' arguments.
59. Id. at 1230-32.
60. See id. at 1230-31 (citing James Wilson's statement that "everything which is not given is reserved").
61. Id. at 1235-36.
62. See 1 ANNALS OF CONG. 439 (Joseph Gales ed., 1789) (enumerating specific exceptions to granted power would "disparage" rights not indicated in such enumeration). See infra notes 41-52 and accompanying text for a discussion of the Federalist arguments.
63. 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 388 (Merrill Jensen ed., 1976) [hereinafter RATIFICATION OF THE CONSTITUTION].
64. Massey, supra note 30, at 309-10; Sherry, supra note 28, at 1162. The arguments for this interpretation are not addressed in the text because they have never been made. Commentators have generally assumed that the meaning of Wilson's words was plain, and that Wilson feared that omitted affirmative limitations on government power would be lost.
65. 2 RATIFICATION OF THE CONSTITUTION, supra note 41, at 388.
66. Id.
67. Id. In the same speech, Wilson initially confessed that he did not know why a Bill of Rights was not proposed, but then insisted that a proposal to adopt a measure "that would have supposed that we were throwing into the general government every power not expressly reserved by the people would have been spurned at . . . with the greatest indignation." Id. at 387-88.
68. 13 RATIFICATION OF THE CONSTITUTION, supra note 41, at 337,339 (Speech at a Public Meeting in Philadelphia, Oct. 6, 1787).
69. It should be observed, moreover, that Wilson accurately described the assumptions about legislative power underlying the state constitutions. Thus, the leading work on the revolutionary-era state constitutions concludes that the drafters of those constitutions "assumed that government had all power except for specific prohibitions contained in a bill of rights." DONALD S. LUTZ, POPULAR CONSENT AND POPULAR CONTROL 60 (1980). For further documentation of this conclusion at the time of ratification of the Constitution, and an explanation of how this view of state power fits together with the concept of limited government and natural and inalienable rights, see Thomas B. McAffee, The Bill of Rights, Social Contract Theory, and the Rights "Retained" by the People, 16 S. ILL. U. L.J. 267, 281 & n.40, 286-88 (1992).
70. It should be observed, moreover, that Wilson accurately described the assumptions about legislative power underlying the state constitutions. Thus, the leading work on the revolutionary-era state constitutions concludes that the drafters of those constitutions "assumed that government had all power except for specific prohibitions contained in a bill of rights." DONALD S. LUTZ, POPULAR CONSENT AND POPULAR CONTROL 60 (1980). For further documentation of this conclusion at the time of ratification of the Constitution, and an explanation of how this view of state power fits together with the concept of limited government and natural and inalienable rights, see Thomas B. McAffee, The Bill of Rights, Social Contract Theory, and the Rights "Retained" by the People, 16 S. ILL. U. L.J. 267, 281 & n.40, 286-88 (1992).
71. 13 RATIFICATION OF THE CONSTITUTION, supra note 41, at 391 (Pennsylvania Ratifying Convention, Nov. 28, 1787).
72. 4 ELLIOT'S DEBATES, supra note 31, at 149 (North Carolina Ratifying Convention, July 29, 1788).
73. 13 RATIFICATION OF THE CONSTITUTION, supra note 41, at 337, 340 (Speech at a Public Meeting in Philadelphia, Oct. 6, 1787).
74. Id. at 340.
75. Id.
76. 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 764-65 (1971).
77. Id. at 840-45.
78. Id. at 845.
79. McAffee, supra note 16, at 1236 & n.84 (collecting authorities who concur that Ninth Amendment was drafted from Virginia's recommended amendment).
80. 2 SCHWARTZ, supra note 53, at 844.
81. Some might think it odd that the drafters of the proposed amendment would refer to rights provisions as those declaring that "Congress shall not exercise certain powers." Id. But notice that this is the form in which the First Amendment is written: "Congress shall make no law . . . . " U.S. CONST, amend. I.
82. See supra notes 41-48 and accompanying text for a discussion of Wilson's objections to adopting a bill of rights.
83. 2 SCHWARTZ, supra note 53, at 844.
84. Id.
85. 3 ELLIOT'S DEBATES, supra note 31, at 620 (June 24, 1788) (arguing that Constitution provides that all powers not granted are reserved; enumeration of rights would imply that all rights omitted from enumeration were retained by government); accord Letter from Madison to Jefferson (Oct. 17,1788), in 1 SCHWARTZ, supra note 53, at 614-15 (stating that he could support bill of rights "provided that it be so framed as not to imply powers not meant to be included in the enumeration").
86. 3 ELLIOT'S DEBATES, supra note 31, at 620 (June 24, 1788) (arguing that Constitution provides that all powers not granted are reserved; enumeration of rights would imply that all rights omitted from enumeration were retained by government); accord Letter from Madison to Jefferson (Oct. 17,1788), in 1 SCHWARTZ, supra note 53, at 614-15 (stating that he could support bill of rights "provided that it be so framed as not to imply powers not meant to be included in the enumeration").
87. See supra note 53 and accompanying text for a list of important Federalists on the committee that drafted the Virginia proposal.
88. 1 ANNALS OF CONG., supra note 40, at col. 455.
89. Id.
90. See supra notes 40-41 and accompanying text for a discussion of the Federalist argument against adopting a bill of rights.
91. See supra notes 41-48 and accompanying text for a discussion of James Wilson's argument against adopting a bill of rights.
92. 1 ANNALS OF CONG., supra note 40, at col. 456.
93. Some commentators have taken Madison's description of the danger feared by opponents of a bill of rights as referring to the potential loss of implied limitations on powers granted to government. E.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 774-75 (2d ed. 1988) (describing Madison's concern that a bill of rights might "dangerously suggest" that rights not singled out were intended to be retained by government); Laycock, supra note 26, at 353 (discussing Madison's desire to protect unenumerated rights). In each of their works, however, just as with the final text of the Ninth Amendment and the statements from the ratification debates opposing a bill of rights, the commentators advance no real argument for their views, apparently basing their conclusions on the assumption that the statement is plain and unambiguous. By contrast, this article has attempted to show that these statements can only be understood in context.
94. 3 ELLIOT'S DEBATES, supra note 31, at 620 (June 24, 1788) (Virginia Ratifying Convention).
95. 1 ANNALS OF CONG., supra note 40, at col. 456.
96. Id. at col. 452.
97. Id. Compare Madison's proposal that the exceptions should be limitations on the granted powers, or else cautionary provisions, with the Virginia proposal to secure rights through the enumeration of limitations on the government's powers. See supra notes 53-61 and the accompanying text for an analysis of the Virginia proposal.
98. See, e.g., Randy E. Barnett, Reconceiving the Ninth Amendment, 74 CORNELL L. REV. 1, 10 (1988) (noting that Madison's draft focused both on the problem of extended powers and the loss of unenumerated rights).
99. 1 ANNALS OF CONG., supra note 40, at col. 456.
100. LEONARD LEVY, ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION 272 (1988).
101. Id. at 280; see also Massey, supra note 30, at 310 (concluding that new proposal shifted focus from powers granted to government to rights retained by people); Yoo, supra, note 11, at 990-91 (suggesting that Madison's language introduced concept of people's rights); Jeff Rosen, Note, Was the Flag Burning Amendment Unconstitutional, 100 YALE L.J. 1073, 1075 (1991) (arguing that "retained" rights refers to natural rights retained as society transitioned from "natural" to "civil" state). To date, however, no modern commentator has proffered any explanation for why the committee appointed by the Virginia Ratifying Convention failed to recommend an amendment that addressed the oft-cited problem of the fate of the rights left out of an enumeration of rights.
102. See supra notes 62-73 and accompanying text for a discussion of how Madison exercised his role in the debates over a bill of rights.
103. See, e.g., Barnett, supra note 74, at 22 (leading critic of traditional reading acknowledging that "first line of defense of individual rights and liberties" was "the governmental structure and procedures established by the Constitution"); id. at 10 (acknowledging fears that a bill of rights would raise inference of enlarged powers).
104. See McAffee, supra note 16, at 1237 (noting sparse legislative history pertaining to Congress' adoption of Ninth Amendment).
105. Id. at 1239.
106. See, e.g., Letter from Madison to Jefferson (Oct. 17, 1788), in 1 SCHWARTZ, supra note 53, at 615 (stating that he could support bill of rights only if it did not grant unenumerated powers to government).
107. One suggestion is that Madison or others believed that the language of the Tenth Amendment would accomplish the power-limiting purpose of the Virginia proposal. See, e.g., Mayer, supra note 11, at 317-18 (theorizing that Madison used Tenth Amendment to deal with danger of implied powers). However, this suggestion is not plausible. The Virginia convention adopted recommended amendments that anticipated both the Ninth and Tenth Amendments, and Madison's initial draft of the Ninth Amendment, as submitted to Congress, which prohibited an inference of enlarged powers, was offered in addition to his proposal which became the Tenth Amendment. There is a reason for the existence of two separate amendments, as we will see when we address the issue of the relationship between the Ninth and Tenth Amendments, see infra Part V. While the Tenth Amendment was designed to add security to the limited powers scheme, it was not written to address, and accordingly its text says' nothing about, the peculiar concern that the enumeration of rights might be taken as a source of implied powers. See infra notes 105-08 and accompanying text for a contrast of the reasons for adopting the Ninth and Tenth Amendments. Another suggestion is that the revised text served both to incorporate a body of unwritten limitations in favor of natural rights, as well as to prevent an inference of extended national powers in derogation of the enumerated powers scheme - to secure the people's rights by alternative strategies. Massey, supra note 27, at 87. However, if the prohibition of an inference against rights "retained by the people" is properly read as preventing an enlarged powers construction, so as to preserve the rights retained by the enumerated powers scheme, as this argument concedes, one may question whether there is any reason to even look for an additional purpose to be filled by the "rights" language. In fact, as we have seen, the historical evidence from the ratification debates suggests that the fears about rights dealt with the set of rights defined as a residuum from the enumerated powers.
108. The Virginia debate is discussed at some length in McAffee, supra note 16, at 1287-93.
109. Letter from Hardin Burnley to James Madison (Nov. 28, 1789), in 2 SCHWARTZ, supra note 53, at 1188.
110. Id.
111. Id.
112. Letter from Madison to Washington (Dec. 5, 1789), in 2 SCHWARTZ, supra note 53, at 1189, 1190.
113. Id.
114. The speech was given at the North Carolina Ratifying Convention on July 28, 1788. 4 ELLIOT'S DEBATES, supra note 31, at 148-49. Among those relying on this language, see DAVID A.J. RICHARDS, FOUNDATIONS OF AMERICAN CONSTITUTIONAUSM 221 (1989) (asserting that Iredell's speech foreshadows positivist constitutional philosophy of Judge Robert Bork, and that Bork is Iredell's "nightmare"); Massey, supra note 27, at 86-87 (asserting Iredell's speech meant that unenumerated rights would be in danger because government could usurp these rights by arguing that absent their enumeration they were no rights at all); Mayer, supra note 11, at 317 n.16 (arguing that Iredell saw two reasons why adopting bill of rights would be dangerous: it would lead to (1) loss of system of enumerated powers with reserved rights, and (2) loss of any unenumerated rights).
115. The speech was given at the North Carolina Ratifying Convention on July 28, 1788. 4 ELLIOT'S DEBATES, supra note 31, at 148-49. Among those relying on this language, see DAVID A.J. RICHARDS, FOUNDATIONS OF AMERICAN CONSTITUTIONAUSM 221 (1989) (asserting that Iredell's speech foreshadows positivist constitutional philosophy of Judge Robert Bork, and that Bork is Iredell's "nightmare"); Massey, supra note 27, at 86-87 (asserting Iredell's speech meant that unenumerated rights would be in danger because government could usurp these rights by arguing that absent their enumeration they were no rights at all); Mayer, supra note 11, at 317 n.16 (arguing that Iredell saw two reasons why adopting bill of rights would be dangerous: it would lead to (1) loss of system of enumerated powers with reserved rights, and (2) loss of any unenumerated rights).
116. See supra notes 41-48 and accompanying text for James Wilson's description of the function of bills of rights in state constitutions.
117. Iredell did address the question of whether natural rights were secure under the proposed Constitution. However, he argued from the enumerated powers scheme, contending that important rights were secured because "any person by inspecting [the Constitution] may see if the power claimed be enumerated." 4 ELLIOT'S DEBATES, supra note 31, at 172.
118. Rosen, supra note 77, at 1075.
119. Id.
120. This leads Rosen to conclude that it is erroneous to suppose that Madison's draft "added nothing to a precursor of the Ninth Amendment proposed by Virginia." Id. at 1075 & n.11.
121. 1 ANNALS OF CONG., supra note 40, at col. 454.
122. Id. at col. 455 (emphasis added).
123. See supra notes 86-89 and accompanying text for a discussion of Burnley's response to Randolph's objection.
124. A related suggestion is that the Ninth Amendment draws upon a proposed amendment presented to the committee in Congress charged with considering the Bill of Rights, which guaranteed the natural rights which are "retained by [the people] when they enter into Society." Randy E. Barnett, Introduction: James Madison's Ninth Amendment, in THE RIGHTS RETAINED BY THE PEOPLE 1, 7 n.16 (Randy E. Barnett ed., 1989) (quoting James Madison, in 1 THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 452 (Joseph Gales & William Seaton eds., 1834)). However, this is extremely unlikely. First, there is nothing to suggest that this proposal influenced the committee, and we know that the committee was already considering Madison's proposed language, which included the language of retained rights. Second, the author of the proposed natural rights amendment, Roger Sherman, simultaneously proposed an amendment that correlates perfectly with the Ninth and Tenth Amendments. See Roger Sherman's Proposed Committee Report (July 21-28, 1789), reprinted in CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 267-68 (Helen E. Veit et al. eds., 1991) (stating that powers "not delegated" are "retained by the States," and that "[limitations on] the exercise of power by the government of the united States [in] the particular instances here in enumerated by way of caution" may not "be construed to imply the contrary"). Most importantly, the Ninth Amendment responds compellingly to the ratification debate that led to its adoption, and that debate does not point toward the sort of provision proposed by Sherman. For a more complete treatment of the relevance of Sherman's proposed language, see McAffee, supra note 47, at 299-305.
125. A related suggestion is that the Ninth Amendment draws upon a proposed amendment presented to the committee in Congress charged with considering the Bill of Rights, which guaranteed the natural rights which are "retained by [the people] when they enter into Society." Randy E. Barnett, Introduction: James Madison's Ninth Amendment, in THE RIGHTS RETAINED BY THE PEOPLE 1, 7 n.16 (Randy E. Barnett ed., 1989) (quoting James Madison, in 1 THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 452 (Joseph Gales & William Seaton eds., 1834)). However, this is extremely unlikely. First, there is nothing to suggest that this proposal influenced the committee, and we know that the committee was already considering Madison's proposed language, which included the language of retained rights. Second, the author of the proposed natural rights amendment, Roger Sherman, simultaneously proposed an amendment that correlates perfectly with the Ninth and Tenth Amendments. See Roger Sherman's Proposed Committee Report (July 21-28, 1789), reprinted in CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 267-68 (Helen E. Veit et al. eds., 1991) (stating that powers "not delegated" are "retained by the States," and that "[limitations on] the exercise of power by the government of the united States [in] the particular instances here in enumerated by way of caution" may not "be construed to imply the contrary"). Most importantly, the Ninth Amendment responds compellingly to the ratification debate that led to its adoption, and that debate does not point toward the sort of provision proposed by Sherman. For a more complete treatment of the relevance of Sherman's proposed language, see McAffee, supra note 47, at 299-305.
126. A related suggestion is that the Ninth Amendment draws upon a proposed amendment presented to the committee in Congress charged with considering the Bill of Rights, which guaranteed the natural rights which are "retained by [the people] when they enter into Society." Randy E. Barnett, Introduction: James Madison's Ninth Amendment, in THE RIGHTS RETAINED BY THE PEOPLE 1, 7 n.16 (Randy E. Barnett ed., 1989) (quoting James Madison, in 1 THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 452 (Joseph Gales & William Seaton eds., 1834)). However, this is extremely unlikely. First, there is nothing to suggest that this proposal influenced the committee, and we know that the committee was already considering Madison's proposed language, which included the language of retained rights. Second, the author of the proposed natural rights amendment, Roger Sherman, simultaneously proposed an amendment that correlates perfectly with the Ninth and Tenth Amendments. See Roger Sherman's Proposed Committee Report (July 21-28, 1789), reprinted in CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 267-68 (Helen E. Veit et al. eds., 1991) (stating that powers "not delegated" are "retained by the States," and that "[limitations on] the exercise of power by the government of the united States [in] the particular instances here in enumerated by way of caution" may not "be construed to imply the contrary"). Most importantly, the Ninth Amendment responds compellingly to the ratification debate that led to its adoption, and that debate does not point toward the sort of provision proposed by Sherman. For a more complete treatment of the relevance of Sherman's proposed language, see McAffee, supra note 47, at 299-305.
127. The Tenth Amendment reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. CONST. amend. X. For the text of the Ninth Amendment, see supra note 2.
128. Justice Marshall asserted in Marbury v. Madison that it "cannot be presumed that any clause in the constitution is intended to be without effect." 5 U.S. (1 Cranch) 137, 174 (1803).
129. See, e.g., LANCE BANNING, THE SACRED FIRE OF LIBERTY: JAMES MADISON AND THE FOUNDING OF THE FEDERAL REPUBLIC 85 (1995) (noting George Mason's draft of Virginia's Declaration of Rights contained "generous" but "conventional" protections of individual rights).
130. See infra notes 107-11 and accompanying text for a discussion of the mischief that the Tenth Amendment was intended to relieve.
131. See supra notes 35-73 and accompanying text for a discussion of the "mischief" that the Ninth Amendment was intended to relieve.
132. McAffee, supra note 16, at 1307.
133. Thus, Professor Richard Kay has observed that "redundancy in legal documents is not particularly odd. And, in this case, the drafting history of the Bill of Rights explains the presence of both provisions." Kay, supra note 16, at 271.
134. See MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS 65 (1993) (arguing that "residual rights" reading of Ninth Amendment makes it duplicative of Tenth Amendment).
135. The significance of the omission of such a provision from the unamended Constitution had itself been an important and widely discussed topic during the ratification debates. See McAffee, supra note 16, at 1242-45. Considering that every state that ratified the Constitution and recommended amendments included a Tenth Amendment provision, 1 SCHWARTZ, supra note 53, at 157-58, it is reasonable to assume that the participants in this bill of rights debate would have anticipated the inclusion of such a reserved powers provision.
136. 79 U.S. (12 Wall.) 457 (1870).
137. Id. at 535.
138. See supra notes 41-48 and accompanying text for a discussion of Wilson's arguments against adopting a bill of rights.
139. See PERRY, supra note 107, at 65.
140. See infra notes 115-17 and accompanying text for a discussion of this criticism of the traditional reading of the Ninth Amendment.
141. See, e.g., DANIEL FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION 380-81 (1990) (contending that Framers' confidence in enumerated powers scheme rested on assumption that powers would be construed as limited by traditional and natural rights).
142. See, e.g., Sherry, supra note 11, at 180 (describing difference between reserved rights and limits on governmental power as "irrelevant").
143. See, e.g., Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267, 271-72 (1993) (arguing that word "proper" serves an important Constitutional purpose).
144. See McAffee, supra note 16, at 1239-40 describing the claim that the text of the Ninth Amendment precludes the possibility that it was designed to preserve a scheme of limited government powers.
145. See, e.g., McAffee, supra note 16, at 1310 & n.355 (noting expansion of federal power in modern era and largely critical reaction to Supreme Court's narrow construction of Necessary and Proper Clause in small number of cases involving federal laws impinging on individual liberty).
146. See supra notes 86-89 and accompanying text for a discussion of Hardin Burnley's letter to James Madison regarding the Ninth Amendment. If the efficacy of the enumerated powers scheme as a rights-protective device is to turn on the adequacy of the drafting of the Constitution, as these arguments suppose, it must be because the grants of powers were to be read as stated and not as subject to implied limitations.
147. See, e.g., Walter Berns, The Constitution as Bill of Rights, in HOW DOES THE CONSTITUTION SECURE RIGHTS 50, 52 (Robert A. Goldwin & William A Schambra eds., 1985) (stating that "history has vindicated the Federalists, who insisted that, so far as the federal government was the object of concern, a bill of rights was unnecessary").
148. See supra notes 36-39 and accompanying text for a discussion of the Antifederalists' push to adopt a bill of rights.
149. See, e.g., Massey, supra note 30, at 308-09 (noting that demand for Bill of Rights served to provide certainty that federal government would not intrude upon fundamental rights of citizens).
150. For Wilson's statement regarding the press, see 13 RATIFICATION OF THE CONSTITUTION, supra note 41, at 340; see also supra notes 42-48 and accompanying text for a discussion of Wilson's polemics in opposition to the Bill of Rights.
151. 1 ANNALS OF CONG., supra note 40, at col. 455.
152. Id. at col. 456.
153. Some have argued that Madison was contending only that constitutional limitations were needed to avoid a possible misconstruction of the Necessary and Proper Clause. See Lawson & Granger, supra note 116, at 281 (quoting Madison on remedies available should Congress "misconstrue" or "enlarge" its enumerated powers); id. at 322-23 (quoting Madison extolling utility of bill of rights to circumscribe federal government's power, so that extent of its power is not misconstrued by Congress). Professor Barnett, however, correctly links Madison's defense of the need for a Bill of Rights with the language of Madison's own proposed Ninth Amendment, which suggested that some rights provisions would constitute " 'actual limitations of such [granted] powers.' " Barnett, supra note 99, at 17 (quoting JAMES MADISON, in 1 THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 452 (Joseph Gales & William Seaton eds., 1834)). If the Necessary and Proper Clause was in fact a limiting provision, all of the provisions in the Bill of Rights would be cautionary provisions at best, rather than actual limitations on the powers granted. Accordingly, despite being a proponent of the natural rights reading of the Ninth Amendment, Barnett nevertheless acknowledges that Madison's argument to Congress reflected his understanding that, to adequately secure basic rights, "some regulation of the means employed to achieve enumerated government ends must supplement the device of enumerating powers." Id. at 16.
154. E.g., 4 ELLIOT'S DEBATES, supra note 31, at 171-72 (statement of James Iredell, 1788). Iredell responded to the charge that the Constitution lacked clear "fences" or "boundaries" for securing natural rights by arguing that the Constitution's powers scheme included so clear "a definition of authority . . . that any person by inspecting [the Constitution] may see if the power claimed be enumerated." Id. This sort of appeal to the text would be quixotic if it amounted, in fact, to the argument that limiting principles would prevent the text from being read to invade basic rights.
155. E.g., 2 ELLIOT'S DEBATES, supra note 31, at 455 (statement of James Wilson, 1787) (challenging Constitution's opponents to show "what part of this system puts it in the power of Congress to attack [the rights of conscience]").
156. See McAffee, supra note 16, at 1269 n.215 (quoting statements made by Antifederalists responding to Federalist challenge to show where in Constitution powers to threaten basic rights could be found). The success of the Antifederalists in this very debate has prompted modern commentators to conclude that the adoption of the Bill of Rights "implied a rejection of the Federalist position that rights were adequately secured by the structure of enumerated powers." Steven J. Heyman, Natural Rights, Positivism and the Ninth Amendment: A Response to McAffee, 16 SO. ILL. U. L.J. 327, 331 (1992); accord, Barnett, note 99, at 16 (stating that means to achieve enumerated ends must be regulated).
157. In presenting his proposed amendments to Congress, Madison justified additional limiting provisions by recognizing that Congress "has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the State Governments under their constitutions may to an indefinite extent." 1 ANNALS OF CONG., supra note 40, at col. 455. Madison further acknowledged that the Constitution itself had, in general, given to Congress power to "judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation," which could lead to abusive laws, just as "improper laws could be enacted by the State Legislatures, for fulfilling the more extended objects of those Governments." Id. at cols. 455-56. Madison's statements directly link the need for limits on federal power with the consensus, as shown in the ratification debates, that a bill of rights had been necessary under the state constitutions in order to specify the limits the people expected their governments to abide by. See Lawson & Granger, supra note 116, at 280-81 (noting contemporaneous similarities between several state constitutions and language from Constitution delimiting powers of governments). This consensus, in turn, cuts sharply against the notion of inherent, implied constitutional limits that modern commentators presume is the focus of the Ninth Amendment.
158. See Earl M. Maltz, Unenumerated Rights and Originalist Methodology: A Comment on the Ninth Amendment Symposium, 64 CHI.-KENT L. REV. 981, 982 (1988) (discussing applicability of Ninth Amendment to separate states).
159. E.g., ELY, supra note 13, at 37 (observing that original Framers and ratifying conventions clearly intended Bill of Rights to control only federal government actions); MASSEY, supra note 11, at 138 (contending that Bill of Rights was clearly intended to bind only federal actions; observing that most commentators agree Ninth Amendment operates only against federal action); Norman G. Redlich, Are There "Certain Rights . . . Retained by the People"? 37 N.Y.U. L. REV. 787, 805-06 (1962) (stating that legislative history of Ninth Amendment demonstrates it was intended to apply only to federal government); Eugene M. Van Loan III, Natural Rights and the Ninth Amendment, 48 B.U. L. REV. 1, 22-23 (1968) (describing history of Ninth Amendment as clearly indicating Amendment could only be used to constrain federal government).
160. E.g., ELY, supra note 13, at 37 (observing that original Framers and ratifying conventions clearly intended Bill of Rights to control only federal government actions); MASSEY, supra note 11, at 138 (contending that Bill of Rights was clearly intended to bind only federal actions; observing that most commentators agree Ninth Amendment operates only against federal action); Norman G. Redlich, Are There "Certain Rights . . . Retained by the People"? 37 N.Y.U. L. REV. 787, 805-06 (1962) (stating that legislative history of Ninth Amendment demonstrates it was intended to apply only to federal government); Eugene M. Van Loan III, Natural Rights and the Ninth Amendment, 48 B.U. L. REV. 1, 22-23 (1968) (describing history of Ninth Amendment as clearly indicating Amendment could only be used to constrain federal government).
161. See Van Loan, supra note 132, at 23-24 (advocating selective incorporation). After all, the text of the Amendment prohibits interpreters from "disparag[ing]" the unenumerated rights. U.S. CONST, amend. IX. If we first assume that the fundamental rights reading is correct, then precluding incorporation because a right was not enumerated would seem to run afoul of this prohibition.
162. In his ground-breaking article, Professor Redlich suggested that the basic point of relying on the Ninth Amendment was to justify moving beyond the tendency to limit the application of substantive due process to rights "absorbed" into the Fourteenth Amendment to the specific limitations found in the Bill of Rights. Redlich, supra note 132, at 787-90, 794-95. His point seemed to be that the strategy of looking to the Bill of Rights to avoid open-endedness is useless if in fact the Bill of Rights, properly understood in light of the Ninth Amendment, is itself openended in nature. See id. at 795 (noting concern over interpretations of Bill of Rights provisions, not on their flexibility); see also MASSEY, supra note 11, at 15 (observing that it is more difficult to justify existence of substantive component of due process than to justify existence of constitutional unenumerated rights protected by Ninth Amendment). If substantive due process is difficult to justify, regardless of whether the fundamental right under consideration is found in a constitutional text or alluded to by the Ninth Amendment, arguably it contributes little to add the Ninth Amendment to the equation.
163. See, e.g., ELY, supra note 13, at 14-21 (contending that doctrine of substantive due process lacks any merit for justifying modern fundamental rights doctrine); id. at 34-41 (relying on Ninth Amendment as grounding for constitutional doctrine not rooted in specific constitutional texts).
164. The incorporation theory debate is one of the never-ending contests in the fields of constitutional history and interpretation. For two important contributions to the incorporation debate, see RAOUL BERGER, GOVERNMENT BY THE JUDICIARY 134-56 (1977); MICHAEL K. CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986).
165. The incorporation theory debate is one of the never-ending contests in the fields of constitutional history and interpretation. For two important contributions to the incorporation debate, see RAOUL BERGER, GOVERNMENT BY THE JUDICIARY 134-56 (1977); MICHAEL K. CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986).
166. See, e.g., CONG. GLOBE, 42d Cong., 1st Sess. App. 84 (1872) (Congressman John A. Bingham); id., 39th Cong., 1st Sess. 2765-67 (1866) (Senator Jacob M. Howard); Maltz, supra note 131, at 982 (noting that two congressmen alluded to incorporating first eight amendments). Strikingly, the tendency of Reconstruction Era legislators to think of the Bill of Rights as the first eight amendments to the Constitution is further evidence that the Ninth Amendment was linked in thoughtful people's minds with the Tenth Amendment, rather than with the other eight. The likely reason for this is that these legislators perceived the Ninth Amendment as a structural guarantee, as suggested in the treatment offered above.
167. Modern scholars have contended that the founding generation believed in a Constitu-tion that consisted of the written document identified by that name, as well as unwritten rights limiting government power. E.g., Thomas C. Grey, Do We Have an Unwritten Constitution? 27 STAN. L. REV. 703, 716 (1975) (stating that framing generation recognized that written constitution could not codify unwritten higher law); Sherry, supra note 28, at 1176-77 (concluding that founding generation intended to protect natural rights, whether written or unwritten).
168. E.g., MASSEY, supra note 11, at 21-52, 175 (discussing political context of founding generation); Grey, supra note 138, at 709 (describing Ninth Amendment as protecting rights not enumerated in first eight amendments); Sherry, supra note 28, at 1163, 1166 (calling Ninth Amendment "license" permitting decisionmakers to look beyond text of Constitution to protect fundamental rights).
169. See, e.g., McAffee, supra note 47, at 276-89 (discussing Antifederalists' arguments against inherent fundamental rights); McAffee, supra note 16, at 1229 & n.52, 1230-31, 1266-77 (describing ratification debates' natural rights arguments). For further support of this conventional understanding, from materials in addition to the ratification debates, see Philip A. Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 YALE L.J. 907, 909 (1993) (conventional view during founding era was that natural rights, including fundamental ones, "were retained under civil government only to the extent permitted by the Constitution and other civil laws").
170. E.g., Thomas C. Grey, The Original Understanding and the Unwritten Constitution, in TOWARD A MORE PERFECT UNION: SIX ESSAYS ON THE CONSTITUTION 145, 157-59 (Neil L. York ed., 1988) (discussing cases of judicial review); Sherry, supra note 28, at 1134-36 (examining early instances of judicial review).
171. 3 U.S. (3 Dall.) 386 (1798).
172. See id. at 387 (Chase, J.) (concluding that full extent of federal legislative powers are defined in Constitution; whereas state legislatures retain powers that are "indefinite" to extent not expressly taken away by Constitution); id. at 398-99 (Iredell, J., concurring) (concluding that Constitution "defined with precision" full extent of "all" legislative powers, and restrained those powers "within marked and settled boundaries").
173. The sort of rights-foundational accounts summarized here are elaborated and de-fended in various works. See, e.g., DAVID RICHARDS, FOUNDATIONS OF AMERICAN CONSTITUTIONALISM 220 (1989) (observing that founding documents of constitutionalism protected unenumerated rights); Barber, supra note 33, at 68-71 (discussing Ninth Amendment and inalienable rights); Terry Brennan, Natural Rights and the Constitution: The Original "Original Intent," 15 HARV. J.L. & PUB. POL'Y 965, 969, 993-94 (1992) (stating that Founders believed natural rights were superior to positive law); Stephen Macedo, Morality and the Constitution: Toward a Synthesis for "Earthbound" Interpreters, 61 U. CIN. L. REV. 29, 29 (1992) (suggesting that reliance on natural law is difficult to avoid); Lawrence G. Sager, You Can Raise the First, Hide Behind the Fourth, and Plead the Fifth. But What On Earth Can You Do With the Ninth Amendment?, 64 CHI.-KENT L. REV. 239, 254-55, 258-59 (1988) (describing Constitution as both "significant but incomplete" and "self-contained and exhaustive"); Edwin Vieira, Jr. Rights and the United States Constitution: The Declension From Natural Law To Legal Positivism, 13 GA. L. REV. 1447, 1459 (1979) (stating that purpose of Constitutional limitations on governmental authority was to guarantee natural freedoms for all members of society).
174. The sort of rights-foundational accounts summarized here are elaborated and de-fended in various works. See, e.g., DAVID RICHARDS, FOUNDATIONS OF AMERICAN CONSTITUTIONALISM 220 (1989) (observing that founding documents of constitutionalism protected unenumerated rights); Barber, supra note 33, at 68-71 (discussing Ninth Amendment and inalienable rights); Terry Brennan, Natural Rights and the Constitution: The Original "Original Intent," 15 HARV. J.L. & PUB. POL'Y 965, 969, 993-94 (1992) (stating that Founders believed natural rights were superior to positive law); Stephen Macedo, Morality and the Constitution: Toward a Synthesis for "Earthbound" Interpreters, 61 U. CIN. L. REV. 29, 29 (1992) (suggesting that reliance on natural law is difficult to avoid); Lawrence G. Sager, You Can Raise the First, Hide Behind the Fourth, and Plead the Fifth. But What On Earth Can You Do With the Ninth Amendment?, 64 CHI.-KENT L. REV. 239, 254-55, 258-59 (1988) (describing Constitution as both "significant but incomplete" and "self-contained and exhaustive"); Edwin Vieira, Jr. Rights and the United States Constitution: The Declension From Natural Law To Legal Positivism, 13 GA. L. REV. 1447, 1459 (1979) (stating that purpose of Constitutional limitations on governmental authority was to guarantee natural freedoms for all members of society).
175. The sort of rights-foundational accounts summarized here are elaborated and de-fended in various works. See, e.g., DAVID RICHARDS, FOUNDATIONS OF AMERICAN CONSTITUTIONALISM 220 (1989) (observing that founding documents of constitutionalism protected unenumerated rights); Barber, supra note 33, at 68-71 (discussing Ninth Amendment and inalienable rights); Terry Brennan, Natural Rights and the Constitution: The Original "Original Intent," 15 HARV. J.L. & PUB. POL'Y 965, 969, 993-94 (1992) (stating that Founders believed natural rights were superior to positive law); Stephen Macedo, Morality and the Constitution: Toward a Synthesis for "Earthbound" Interpreters, 61 U. CIN. L. REV. 29, 29 (1992) (suggesting that reliance on natural law is difficult to avoid); Lawrence G. Sager, You Can Raise the First, Hide Behind the Fourth, and Plead the Fifth. But What On Earth Can You Do With the Ninth Amendment?, 64 CHI.-KENT L. REV. 239, 254-55, 258-59 (1988) (describing Constitution as both "significant but incomplete" and "self-contained and exhaustive"); Edwin Vieira, Jr. Rights and the United States Constitution: The Declension From Natural Law To Legal Positivism, 13 GA. L. REV. 1447, 1459 (1979) (stating that purpose of Constitutional limitations on governmental authority was to guarantee natural freedoms for all members of society).
176. The sort of rights-foundational accounts summarized here are elaborated and de-fended in various works. See, e.g., DAVID RICHARDS, FOUNDATIONS OF AMERICAN CONSTITUTIONALISM 220 (1989) (observing that founding documents of constitutionalism protected unenumerated rights); Barber, supra note 33, at 68-71 (discussing Ninth Amendment and inalienable rights); Terry Brennan, Natural Rights and the Constitution: The Original "Original Intent," 15 HARV. J.L. & PUB. POL'Y 965, 969, 993-94 (1992) (stating that Founders believed natural rights were superior to positive law); Stephen Macedo, Morality and the Constitution: Toward a Synthesis for "Earthbound" Interpreters, 61 U. CIN. L. REV. 29, 29 (1992) (suggesting that reliance on natural law is difficult to avoid); Lawrence G. Sager, You Can Raise the First, Hide Behind the Fourth, and Plead the Fifth. But What On Earth Can You Do With the Ninth Amendment?, 64 CHI.-KENT L. REV. 239, 254-55, 258-59 (1988) (describing Constitution as both "significant but incomplete" and "self-contained and exhaustive"); Edwin Vieira, Jr. Rights and the United States Constitution: The Declension From Natural Law To Legal Positivism, 13 GA. L. REV. 1447, 1459 (1979) (stating that purpose of Constitutional limitations on governmental authority was to guarantee natural freedoms for all members of society).
177. The sort of rights-foundational accounts summarized here are elaborated and de-fended in various works. See, e.g., DAVID RICHARDS, FOUNDATIONS OF AMERICAN CONSTITUTIONALISM 220 (1989) (observing that founding documents of constitutionalism protected unenumerated rights); Barber, supra note 33, at 68-71 (discussing Ninth Amendment and inalienable rights); Terry Brennan, Natural Rights and the Constitution: The Original "Original Intent," 15 HARV. J.L. & PUB. POL'Y 965, 969, 993-94 (1992) (stating that Founders believed natural rights were superior to positive law); Stephen Macedo, Morality and the Constitution: Toward a Synthesis for "Earthbound" Interpreters, 61 U. CIN. L. REV. 29, 29 (1992) (suggesting that reliance on natural law is difficult to avoid); Lawrence G. Sager, You Can Raise the First, Hide Behind the Fourth, and Plead the Fifth. But What On Earth Can You Do With the Ninth Amendment?, 64 CHI.-KENT L. REV. 239, 254-55, 258-59 (1988) (describing Constitution as both "significant but incomplete" and "self-contained and exhaustive"); Edwin Vieira, Jr. Rights and the United States Constitution: The Declension From Natural Law To Legal Positivism, 13 GA. L. REV. 1447, 1459 (1979) (stating that purpose of Constitutional limitations on governmental authority was to guarantee natural freedoms for all members of society).
178. 5 U.S. (1 Cranch) 137 (1803).
179. Id. at 177-78.
180. Id. For Alexander Hamilton's classic defense of judicial review, see THE FEDERALIST No. 78, at 492-96 (Benjamin F. Wright ed., 1961). See also Grey, supra note 138, at 705, in which Professor Grey, perhaps the most forceful and original proponent of the "unwritten Constitution" idea, freely acknowledges that the "unwritten" interpretation stands in contrast to the rationale provided for judicial review in Marbury v. Madison. Id. (citing Marbury v. Madison, 5 U.S. 137 (1803), for proposition that Constitution supports judicial review standards that adhere to written text for interpretations of law).
181. Among other things, if this account of our constitutional order is fully embraced, it suggests a powerful argument for the view that the incorporation debate is largely irrelevant to the issue of applying fundamental rights to the states, inasmuch as natural and inalienable rights should be viewed as inherently national in nature given the nation's initial commitment to such rights, as stated in the Declaration of Independence. This sort of view is suggested by at least one important commentator. See Black, supra note 11, at 27-30 (discussing correlation between Declaration of Independence and other rights retained by people).
182. Sager, supra note 144, at 263.
183. For an overall critique of this sort of vision of our constitutional order, see Thomas B. McAffee, Substance Above All: The Utopian Vision of Modern Natural Law Constitutionalists, 4 S. CAL. INTERDISC. L.J. (forthcoming).