WHO'S AFRAID OF UNENUMERATED RIGHTS?
Randy E. Barnett
Boston University School of Law Working Paper 06-02
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.
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Randy E. Barnett Contact Information
No longer at Boston University School of Law, now at: Georgetown University Law Center
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