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Abstract:
Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a collective right of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With the demise of organized militias, they contend, the right lost any relevance to constitutional adjudication. In this essay, I evaluate the case made for this historical claim by Richard Uviller and William Merkel in their book, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent. I also evaluate their denial that the original meaning of Fourteenth Amendment protected an individual right to arms unconditioned on militia service. I find both claims inconsistent with the available evidence of original meaning and also, perhaps surprisingly, with existing federal law.

Abstract:
Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: the state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This Article examines thirteen crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strongly support the individual natural rights and federalism models. Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say: the unenumerated (natural) rights that people possessed prior to the formation of government, and which they retain afterwards, should be treated in the same manner as those (natural) rights that were enumerated in the Bill of Rights. In short, the Amendment is what it appears to be: a meaningful check on federal power and a significant guarantee of individual liberty.

Ninth Amendment, Constitution, Constitutional Law, originalism, originalist models of the Ninth Amendment, individual natural rights model, federalism model, state law rights model, collective rights model

Abstract:
In this essay, based on the 2006 William Howard Taft lecture, I critically evaluate Justice Antonin Scalia's famous and influential 1988 Taft Lecture, entitled Originalism: The Lesser Evil. In his lecture, Justice Scalia began the now-widely-accepted shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text. At the same time, I explain how Justice Scalia allows himself three ways to escape originalist results that he finds to be objectionable: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and (3) (when the first two justifications are unavailing) just ignore originalism to avoid sufficiently objectionable results. While Justice Scalia describes his approach as faint-hearted originalism, I contend that he is not really an originalist at all as evidenced by this lecture and also by his stances as a justice in several important cases. This leaves Justice Thomas as the only justice who seems at all bound by originalist conclusions with which he may disagree. I then summarize why the courts ought to adhere to original public meaning originalism, why this form of originalism is preferable to the principal alternative - which I call the underlying principles approach - and why originalism, properly understood, does not lead to the types of grossly objectionable results that lead Justice Scalia to be faint of heart.

Justice Antonin Scalia, Constitutional Law, Originalism, original public meaning of constitutional text

Abstract:
Libertarians no longer argue, as they once did in the 1970s, about whether libertarianism must be grounded on moral rights or on consequences; they no longer act as though they must choose between these two moral views. In this paper, I contend that libertarians need not choose between moral rights and consequences because theirs is a political, not a moral, philosophy, one that can be shown to be compatible with various moral theories, which is one source of its appeal.

Moral theories based on either moral rights or on consequentialism purport to be comprehensive, insofar as they apply to all moral questions to the exclusion of all other moral theories. Although the acceptance of one of these moral theories entails the rejection of all others, libertarian moral rights philosophers on the one hand, and utilitarians on the other, can embrace libertarian political theory with equal fervor. I explain how can this be and why it is a strength rather than a weakness of libertarian political theory.

Conservatives, neoconservatives, and those on the left who seek to impose by force their comprehensive conception of the good neglect the problem of power - an exacerbated instance of the twin fundamental social problems of knowledge and interest. For a comprehensive moralist of the right or left, using force to impose their morality on others might be their first choice among social arrangements. Having another's comprehensive morality imposed upon them by force is their last choice. The libertarian minimalist approach of enforcing only the natural rights that define justice should be everyone's second choice. A compromise, as it were, that makes civil society possible. And therein lies its imperative.

libertarianism, jurisprudence, political theory, moral theory

Abstract:
This brief article explains why Lawrence v. Texas could be a revolutionary case if the Supreme Court follows Justice Kennedy's reasoning in the future. As in Planned Parenthood v. Casey, Justice Kennedy finds a statute to be unconstitutional, not because it infringes a right to privacy (which is mentioned but once), but because it infringes "liberty" (a word he uses at least twenty-five times). In addition, Justice Kennedy's opinion protects liberty without any finding that the liberty being restricted is a "fundamental right." Instead, having identified the conduct prohibited as liberty, he turns to the purported justification for the statute and finds it inadequate. This represents a marked rejection of the fundamental rights jurisprudence as it has developed since Griswold v. Connecticut, and the adoption - sub silentio - of a "presumption of liberty."

constitution, liberty, privacy, fundamental rights, sodomy, unenumerated rights

Abstract:
In this paper, I refute any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. I will do so, not by discerning the shadowy and often counterfactual "intentions" of the founding generation, but by presenting as comprehensively as I can what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the states and by Congress.

In short, I shall demonstrate that the original meaning of the "judicial power" in Article III, included the power of judicial nullification. Many constitutional scholars who do not consider themselves to be originalists nevertheless acknowledge that originalism provides the starting point of constitutional interpretation or at least is a factor to be considered among others. It is equally important that these nonoriginalists are made aware of the substantial evidence that the original meaning of the "judicial power" included the power to nullify unconstitutional laws.

Abstract:
If there is any group that really needs to understand the concept of natural rights, it is professors of constitutional law. The document they teach was written by a generation who uniformly believed in natural rights, used the concept to justify a violent revolution from their mother country, and professed their continued commitment to natural rights long after the separation - a commitment that only intensified in the years that culminated in the Civil War and the adoption of the Fourteenth Amendment.

Yet few constitutional law professors know much, if anything, about this fundamental concept even as a historical matter, much less as a concept worthy of continued application in today's world. The prime evidence of their lack of knowledge is the fact that they use the terms "natural rights" and "natural law" interchangeably despite the historical and theoretical distinctness of these terms.

In this paper prepared for a panel sponsored by the Political Economy of the Good Society held at the 2003 annual meeting of the American Political Science Association, I provide what I hope will be viewed as a readily accessible explication of these concepts that has as much practical application today as it did in the days of John Locke or James Madison. Although this is decidedly my take on natural law and natural rights, I think it is true to the heart of the concept and can be used to make sense of historical materials that are otherwise inexplicable to modern constitutional scholars. And this vision of natural rights is as important today as it was in 1776 or 1868.

constitution, constitutional law, natural law, natural rights, justice

Abstract:
This article presents evidence of the original public meaning of the Necessary and Proper Clause. I show that the meanings of "necessary" we have inherited from John Marshall's discussion in McCulloch v. Maryland - a choice between "indispensably requisite" on the one hand and mere "convenience" on the other - is undercut by the available evidence. The truth lies somewhere in between. While these findings will, of course, be of interest to originalists, they should also interest the many constitutional scholars who consider original meaning to be one among several legitimate modes of constitutional analysis, as well as those scholars for whom original meaning is the starting point of a process in which it is "translated" into modern terms. By either account, it is important to get the original meaning right, even if it is not alone dispositive of today's cases and controversies.

This is the companion to two previous articles - "The Original Meaning of the Commerce Clause" 68 U. Chi. L. Rev. 101(2002) and "New Evidence on the Original Meaning of the Commerce Clause" 55 U. Ark. L. Rev. 847 (2003) - in which I presented evidence of the public meaning of Congress's power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." To determine the constitutionality of any particular legislation and evaluate judicial applications of the Commerce Clause, however, we must also consider the meaning of the Necessary and Proper Clause. For the expansive post-New Deal reading of congressional power owes as much to the Supreme Court's interpretation of the Necessary and Proper Clause as it does to its expansive reading of the Commerce Clause.

constitution, congressional power, original meaning, originalism, constitutional interpretation, constitutional history

Abstract:
When it comes to identifying the powers of the federal government, we know where to look. Article I of the Constitution provides a list. When it comes to the power of states over their people, the issue has always been shrouded in doubt. For, though the Constitution provides a list of specific limitations on state powers along with an enumeration of certain rights, it appears to be silent on the question of the proper scope of what is called the police power of states.

In this article, I will contend that the Constitution is not really silent on the proper scope of state powers; that the original meaning of what the Constitution says requires that state powers over their citizens have fairly easy to identify limits - though as with most constitutional provisions, applying these limits to particular cases requires judgment and is not a matter of strict deductive logic.

This account will require me to briefly review the method of interpretation I advocate - original meaning originalism - and its limits. These limits require that interpretation of original meaning be implemented by means of constitutional constructions that enhance the legitimacy of the Constitution without violating the original meaning established by interpretation. I then examine the original meaning of the provision that provides the limit on state power: the Fourteenth Amendment. Finally I offer the construction of the scope of the police power of states that is consistent with that limitation: the police power of states includes the power to prohibit wrongful and to regulate rightful conduct of individuals.

constitution, constitutional law, police power, state power, Fourteenth Amendment, Privileges or Immunities Clause, Ninth Amendment

Abstract:
In recent years, originalism as a method of interpretation has grown in its intellectual and practical appeal. The latest challenge to originalism from nonoriginalists is based on the doctrine of precedent. Acceptance of originalism, it is charged, would necessitate the reversal of crucially important landmark decisions and thereby provides a reductio ad absurdum of originalism. Until recently, few originalists have considered carefully the relationship between originalism and the doctrine of stare decisis (though this situation is starting to change). In this short essay, I contend that original meaning should indeed trump previous Supreme Court decisions that are inconsistent with the original meaning of the Constitution. But the main thrust of the essay explains why this implication is not as radical as it sounds because there remains much room for the doctrine of precedent in originalism. It is not incompatible with original public meaning originalism to adhere to precedent in cases involving (a) nonconstitutional issues, (b) matters of constitutional construction, (c) detrimental reliance by identifiable individuals, (d) epistemic concerns about the correctness of originalist claims, and perhaps also (e) where the text was originally ambiguous. Knowing the degree to which a commitment to originalism entails the rejection of the doctrine of precedent may well influence the degree to which originalism is deemed acceptable by academics, judges, and the general public. For this reason, it is important to make clear that a commitment to following original meaning where it conflicts with judicial precedent is far less radical a stance than critics of originalism, and perhaps even some originalists, assume.

constitution, originalism, interpretation, precedent, stare decisis

Abstract:
In his forthcoming article, Original Meaning and Abortion, Jack Balkin makes the startling disclosure that he is now an originalist. "[C]onstitutional interpretation," he writes, "requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. The task of interpretation is to look to original meaning and underlying principle and decide how best to apply them in current circumstances. I call this the method of text and principle."

In this brief reply, I caution that, to remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text we are expounding. And it is the text, properly interpreted and specified in light of its underlying principles, not the underlying principles themselves, that is to be applied to changing facts and circumstances by means of constitutional doctrines. There is another highly familiar and very nonoriginalist way to see the relationship between "text and principle": One could discern the principles underlying the text, and then apply these principles directly to new circumstances. By so doing, one can end up potentially expanding the reach of, and even contravening, the text itself. Because Balkin sometimes appears to be endorsing the second of these two approaches to text and principle in this paper, he may give some readers the mistaken impression that he is still employing a living constitution approach under the guise of original meaning originalism.

constitution, originalism

Abstract:
In this paper, I claim that, far from being defeated in the 80's, originalism is the prevailing method of constitutional interpretation (Part I), but it is an originalism based on an objective original meaning rather than on a subjective original intent (Part II). The imperative for this form of originalism lies, not in consent or popular sovereignty, but in a two step analysis (Part III): First, a commitment to "writtenness" akin to that of written contracts begets a commitment to originalism. Second, we are bound to respect the original meaning of a constitution if the written text, properly interpreted, provides for a law making process which can claim constitutional legitimacy. Legitimacy, by my account, is the ability of lawmaking processes to provide an assurance that constitutionally valid statutes are also binding in conscience. I then explain (Part IV) how this form of originalism, justified in this way, responds to the criticisms that had, until now, persuaded me that I was not an originalist.

Abstract:
The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither consent of the governed nor benefits received justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) if laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed as one component of a lawmaking system. To the extent a particular constitution establishes law-making procedures that adequately assure the justice of enacted laws, it is legitimate even if it has not been consented to by the people. This account of constitutional legitimacy does not assume any particular theory of justice, but rather is intermediate between the concept of justice and the concept of legal validity.

Abstract:
The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) if laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed as one component of a lawmaking system. To the extent a particular constitution establishes law-making procedures that adequately assure the justice of enacted laws, it is legitimate even if it has not been consented to by the people. This account of constitutional legitimacy does not assume any particular theory of justice, but rather is intermediate between the concept of justice and the concept of legal validity.

Abstract:
In my article, "Justice Kennedy's Libertarian Revolution: Lawrence v. Texas" (2002-2003 Cato Supreme Court Review 21 (2003)), I claim that Justice Kennedy's opinion in Lawrence is potentially revolutionary because it protects "liberty" rather than a right of privacy and shifts the burden of justification to the government without any showing that the liberty in question is fundamental, as required by well-established Due Process Clause doctrine. In his article, "Is Lawrence Libertarian?" (88 Minn. L. Rev. 1140 (2004)), Dale Carpenter calls into question my reading of Lawrence. In this brief reply, I respond to these criticism, by imagining that the words of Justice Kennedy's opinion were submitted to Professor Carpenter by one of his students as her answer to a final exam question based on the facts of Lawrence. I explain why he would have given the student a B precisely because the opinion deviates from the established doctrine that Professor Carpenter undoubtedly would have taught his class. Because it is a Supreme Court opinion and not a student exam answer, however, Justice Kennedy and the four justices who joined his opinion are free to ignore previous doctrine and adopt a potentially revolutionary approach, for which I give Justice Kennedy an A.

Constitutional law, Jurisprudence, Legal Philosophy

Abstract:
Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this essay, I offer several reasons: Constitutional law is taught by doctrine rather than chronologically; law professors have reason to privilege the Marshall Court; and the Court's individualist view of popular sovereignty is thought to have been repudiated by the adoption of the Eleventh Amendment. I explain why the Eleventh Amendment did not repudiate the view of sovereignty expressed in Chisholm by comparing the wording of the Eleventh with that of the Ninth Amendment, and conclude by suggesting another reason why Chisholm is not in the canon: Law professors follow the lead of the Supreme Court and, like the Ninth Amendment, the Supreme Court has deemed its first great decision too radical in its implications.

constitutional law, federalism, sovereignty, chisholm, Eleventh Amendment

Abstract:
Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted, and what protection they do receive is subject to intense criticism. In this essay, I examine why some are afraid to enforce unenumerated rights. While this reluctance seems most obviously to stem from the uncertainty of ascertaining the content of unenumerated rights, I contend that underlying this concern are more basic assumptions about legislative sovereignty and the proper role of judges. I explain why a proper conception of constitutional legitimacy requires that unenumerated rights be protected somehow, that judicial protection is not as problematic as commonly thought once it is acknowledged that all liberty may be reasonably regulated (as opposed to prohibited), and that we need to ascertain the scope of unenumerated rights only to identify wrongful behavior that may be prohibited altogether because it invariably violates the rights of others.

unenumerated rights, Ninth Amendment, Privileges or Immunities Clause of the Fourteenth Amendment, Fourteenth Amendment, legislative sovereignty, role of judges, Constitutional Law

Abstract:
Debates over the importance of federalism are often obscured by the fact that there are not one, but three distinct versions of constitutional federalism that have arisen since the Founding: Enumerated Powers Federalism in the Founding era, Fundamental Rights Federalism in the Reconstruction era, and Affirmative State Sovereignty Federalism in the post-New Deal era. In this very short essay, my objective is to reduce confusion about federalism by defining and identifying the origin of each of these different conceptions of federalism. I also suggest that, while Fundamental Rights Federalism significantly qualified Enumerated Powers Federalism, it was not until the New Deal's expansion of federal power that Enumerated Powers Federalism was eviscerated altogether. To preserve some semblance of state discretionary power in the post-New Deal era, the Rehnquist Court developed an ahistorical Affirmative State Sovereignty Federalism that was both under- and over-inclusive of the role of federalism that is warranted by the original meaning of the Constitution as amended.

constitution, federalism, states rights, originalism, reconstruction, new deal

Abstract:
In his review of my book, "Restoring the Lost Constitution: The Presumption of Liberty," Tevor Morrison takes issue with (1) the relationship I describe between constitutional legitimacy and constitutional method, (2) my particular defense of originalism, (3) the operation of my proposed construction of the Constitution - The Presumption of Liberty - and (4) my interpretation of Lawrence v. Texas.

In this reply I defend the fact that I hold a conception of constitutional liberty at partial variance from that of the Founders, the reasonableness and limits of originalist interpretation, the conception of the police power identified in "Restoring the Lost Constitution," and my reading of Lawrence v. Texas. Because Professor Morrison's objections are not atypical of those I have heard from others, I hope that reading my reply will induce skeptics of my approach to read my book anyway.

presumption of liberty, constitutional legitimacy, constitutional method, originalism, constitutional liberty

Abstract:
Ever since Justice Holmes famously asserted that “the Constitution does not enact Mr. Herbert Spencer’s Social Statics,” academics have denied that the Constitution is libertarian. In this essay, I explain that the Constitution is libertarian to the extent that its original meaning respects and protects the five fundamental rights that are at the core of both classical liberalism and modern libertarianism. These rights can be protected both directly by judicial decisions and indirectly by structural constraints. While the original Constitution and Bill of Rights provided both forms of constraints, primarily on federal power, it left states free to violate the liberties of the people - and even enslave their own people - subject only to their own constitutions. The constitutional protection of individual liberty was substantially enhanced by adoption of the Thirteenth and Fourteenth Amendments, which abolished slavery and extended the power of the federal courts and Congress to protect the rights if individuals from violation by state governments. Libertarianism has much less to say about either the conduct of foreign policy or the proper institutional allocation of foreign policy powers (though some libertarians mistakenly accord to foreign states a sovereignty that properly belongs only to individuals). Perhaps not coincidentally, the Constitution provides few constraints on the foreign policy decisions of the political branches, or on the allocation of power between them.

Constitution, libertarian, libertarianism, rights, sovereignty, natural rights

Abstract:
In this brief Foreword to a forthcoming symposium on Lochner v. New York, I ask the question, What's So Wicked About Lochner? Modern Progressives cannot complain about its protection of so-called substantive due process, since they favor just that. Nor can they claim that Lochner violates the original meaning of the Fourteenth Amendment, since these legal analysts by and large reject originalism altogether. This leaves only today's judicial conservatives to adhere to a purified Roosevelt New Deal jurisprudence of disdain for Lochner.

My answer is that Lochner is objectionable precisely because its reliance on the Due Process Clause perpetuated the serious misinterpretation of the Fourteenth Amendment established by the 5-4 decision in The Slaughter-House Cases. While Lochner's use of a presumption in favor of the liberty of citizens is basically sound - however well it may have been applied in the actual case - its reliance on the Due Process Clause, rather than on the Privileges or Immunities Clause, undermined the legitimacy of its method. I then offer the outline of an approach to Section 1 of the Fourteenth Amendment that gives a distinct meaning to each of its four Constitution-altering clauses.

Lochner, due process, substantive due process, Fourteenth Amendment, original meaning, originalism, Due Process Clause, Privileges or Immunities Clause, Constitution

Abstract:
In Gonzales v. Raich, the Supreme Court rejected a constitutional challenge to the Controlled Substance Act, as applied to the cultivation, possession and use of cannabis for medical purposes as recommended by a physician and authorized by state law. The challenge relied on the precedents of United States v. Lopez and United States v. Morrison in which the Court had found that the statutes involved had exceeded the powers of Congress under the Commerce Clause. As explained by the articles in the symposium in which this Foreword will appear, the Court in Raich has now cast the applicability of these previous decisions into doubt. In this brief essay, I offer a route by which a future majority of the Supreme Court can limit the scope of its decision in Gonzales v. Raich should it desire to put its commitment to federalism above a commitment to national power. Viewed in this light, the decision in Raich is not quite as sweeping as it first appears.

Constitutional Law, Copntrolled Substance Act, Gonzales v. Raich, U.S. v. Lopez, U.S. v. Morrison, the Commerce Clause, federalism

Abstract:
Both originalists and nonoriginalists alike often assume that background assumptions widely held when the Constitution or its amendments were enacted are part of the original meaning of the text. Originalists sometimes appeal to these background assumptions to render the meaning of more abstract words or phrases more determinate; nonoriginalist point to odious or outmoded assumptions as proof that original meaning is objectionable and should be rejected.

In this paper, I examine the proper role of background assumptions in constitutional interpretation when ascertaining the meaning of the terms, and in constitutional construction when applying this meaning to particular cases and controversies. Rather than present a normative argument on behalf of originalism, I merely try to identify what the original meaning of the text really is - in particular, the circumstances in which background assumptions become a part of that meaning. While this analysis should be of obvious interest to originalists, it should also be of interest to any nonoriginalist who believes that the original meaning of the text is at least one factor or "modality" of constitutional interpretation to be balanced against other considerations.

In Part I, I explain how express and implied in fact terms provide the meaning of both written contracts and written constitutions. In Part II, I distinguish this meaning of the text from the background assumptions that can result in the failure of a contract when circumstances arise about which the text is silent. Unlike contracts, however, with constitutions "failure" is not an option. Further, while background assumptions can be relevant to interpreting the meaning of ambiguous terms in both contracts and constitutions, most sustained disputes over constitutional terms concern, not the interpretation of ambiguity, but the construction of terms whose meaning is vague.

In Part III, I consider how one's approach to the construction of vague terms will depend on one's theory of constitutional legitimacy - that is, what makes a constitution "binding." If, like contracts, the legitimacy of constitutions is based on original consent of the governed then, as with contracts, background assumptions can be viewed as silently conditioning that consent. On the other hand, if constitutional legitimacy is based on the justice of imposing laws on a nonconsenting public, then odious background assumptions are irrelevant to construing vagueness. This divide is illustrated by the antebellum debates over the constitutionality of slavery. Finally, in Part IV, I apply this analysis to three background assumptions: (1) that there are unenumerated natural rights, (2) that there is an unenumerated police power of states, and (3) that certain interpretive methods would be employed by courts.

constitutional interpretation, construction

Abstract:
Kurt Last believes that, in addition to individual natural rights, the Ninth Amendment protects collective or majoritarian rights as well. In this essay I explain why his majoritarian vision is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, and those who wrote the Constitution. Not coincidentally, it is contrary to the individualism of the other amendments constituting the Bill of Rights, and the public meaning of the Ninth Amendment as it was received during its ratification. It is also contrary to the individualist conception of popular sovereignty adopted in the text of the Constitution as interpreted by a 4 to 1 majority of the Supreme Court in its first major constitutional decision. And it is contrary to the individualist interpretation of the Ninth Amendments by the one source he cites who actually uses the word collective: St. George Tucker. In sum, the collectivist interpretation of the phrase others retained by the people is anachronistic - a projection of contemporary majoritarianism onto a text which is and was most naturally read as referring to the natural rights retained by all individuals, and to these rights alone.

constitution, ninth amendment, rights, fourteenth amendmentment, unenumerated rights

Abstract:
In his book, "The Richness of Contract Law," Robert Hillman criticizes "highly abstract" or "unifying" contract law theories that, he says, fail to reflect adequately the complexities of existing contract law. In his review, "The Richness of Contract Theory," Randy Barnett takes issue with this claim and identifies the generational dispute between legal "realists," whose approach is shared by Professor Hillman, and legal "theorists" of whom Hillman is critical. Professor Barnett's thesis is that the very purpose of modern legal theories is to simplify a complex reality so as to better understand, cope with, and reform legal doctrine. Barnett then discusses Hillman's recent important empirical research on promissory estoppel. Hillman's findings represent a partial corrective to the previous consensus against a "reliance theory" of promissory estoppel insofar as they establish that reliance is a necessary element of promissory estoppel. However, his data also support the Willistonian conception of promissory estoppel by showing that a promise is also required. Ironically, Hillman is, Barnett claims, insufficiently sensitive to the complexity of the cases he surveys and the need to distinguish "reasonable" or "justified" from "unreasonable" or "unjustified" reliance. A more sophisticated analysis of these cases is provided by Professor Sidney DeLong who also is, not coincidentally, more receptive than Hillman to the richness of modern contract theory. While supporting Hillman's finding concerning the requirement of reliance, DeLong also notices courts frequently distinguishing "performance" from "enforcement" reliance. Enforcement reliance is reliance accompanied by a manifested intention by the promisor to be legally bound, or what Barnett has previously called consent.