The 'Foundations' of Anti-Foundationalism - or, Taking the Ninth Amendment Lightly: A Comment on Farber's Book on the Ninth Amendment

Abstract:     
The Ninth Amendment has served two purposes in constitutional discourse - to refute textualists and originalists, and to supply the historical grounds for reading the Constitution as a rights-foundationalist document. Professor McAffee's review of Professor Farber's book on the amendment raises the question whether, given Farber's prior rejection of foundationalism, it is possible for him to reconcile these two ends. It also suggests that, even if the amendment did grow from the environment that gave us the Declaration of Independence, the history gives reason to doubt that its purpose was to provide for the legal enforcement of unstated moral claims, or natural rights. Indeed, Professor McAffee contends that its purpose was to protect the rights retained residually by the system of limited powers granted the national government under the Constitution. But even if we would read the text and history differently, Professor Farber's work seems ultimately at least as committed to his pragmatism as it is to instilling reverence for the claims of unenumerated rights.

Keywords: unenumerated, natural rights, ninth amendment, fundamental rights, the people

JEL Classifications: K10, K30

Accepted Paper Series