WHO'S AFRAID OF UNENUMERATED RIGHTS?

Randy E. Barnett

Boston University School of Law Working Paper 06-02

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; and 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 ascertain the scope of unenumerated rights only to identify wrongful behavior that may be prohibited altogether because it invariably violates the rights of others.



Size: 262 KB
Est. download time @ 28.8K: 9 seconds


Adobe Acrobat Reader v3.01 or greater is required to view this paper.
To obtain a free copy, click the button below



Randy E. Barnett Contact Information
rbarnett@gmail.com

Webpage: http://randybarnett.com/
No longer at Boston University School of Law, now at: Georgetown University Law Center

Presentation and Publication Information:

SSRN Location:

http://www.ssrn.com/abstract=880715

 

 


Click here to close this window.