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April 16, 2019|Ninth Amendment, Originalism, unenumerated rights

Does The Ninth Amendment Constitutionally Protect Unenumerated Rights?

by Mike Rappaport|

Preamble to the Constitution (Jack R. Perry Photography/Shutterstock.com)
The Ninth Amendment recognizes natural rights, but does not protect them as constitutional rights.

March 26, 2019|Constitution, Kurt Lash, Originalism, Privileges or Immunities Clause, unenumerated rights

The Unenumerated Rights of the Privileges or Immunities Clause

by Devin Watkins|

Draft of the 14th Amendment to the Constitution (Everett Historical/Shutterstock.com)
Perhaps a better constitution would be what Lash proposes, with less opportunity for mischief by judges, but that is not the Constitution we have.

March 21, 2019|Fourteenth Amendment, John Bingham, Ninth Amendment, Privileges or Immunities Clause, Slaughterhouse Cases, Tenth Amendment, unenumerated rights

The Privileges or Immunities Clause and Unenumerated Rights

by Kurt T. Lash|

Shutterstock.com
The majority in Slaughterhouse correctly rejected the idea that the Privileges or Immunities Clause protects unenumerated absolute rights.

August 7, 2017|Clark Neily, Judicial Restraint, Lochner v. New York, Robert Bork, unenumerated rights

Leaving Lochner Behind

by Mark Pulliam|

What prompts a man to change his mind on a serious matter after 35 years, and should the reversal be met with pride (for eventually getting it right), or chagrin (for taking so long)? For reasons of vanity, I’m going to take a positive tack and choose the former.

“Wisdom,” Felix Frankfurter once remarked, “too often never comes, so one ought not to reject it merely because it comes late.” Allow me to explain.

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July 21, 2015|Civil Rights Act of 1866, Equal Protection, Fourteenth Amendment, John Bingham, Lyman Trumbull, Privileges or Immunities Clause, unenumerated rights

Equality and the Civil Rights Act of 1866: A Final Response to Damon Root

by Kurt T. Lash|

Sensing that the constitutional foundation for his book is crumbling beneath him, Damon Root takes to his blog a second time and tries once more to rehabilitate his arguments about the Fourteenth Amendment by . . . not talking about the Fourteenth Amendment.

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March 12, 2014|Akhil Amar, Article V, unenumerated rights

The Lived Constitution

by John O. McGinnis|

Despite my admiration and enjoyment of  America’s Unwritten Constitution, I have some disagreements as well. Professor Amar is absolutely correct to reject a wooden textualism, but one of his interpretive moves strikes at the formality that comes from interpreting the language of the Constitution as fixed when it was enacted. In particular, I worry about the “lived Constitution.” Here Professor Amar discovers a mode of constitutional interpretation which discovers unenumerated rights in the practices and beliefs Americans live by. An example would be the emergence of a right to contraception.

To be sure, the Constitution’s structure permits a lot of room for the development for social norms. Federalism for instance permits a forum of experimentation.  New social norms change law through the process of passing ordinary legislation. No state bans contraception now and none now would do so, regardless of whether the Court had declared it a constitutional right.

But I fail to see why norms should become part of the Constitution even if they enjoy substantial support. First, that support does not necessarily represent a consensus about making the norm a constitutional right.  It is simply different to accept a norm as a good thing now as opposed to entrenching it for the future in the federal constitution. We may need time for second thoughts or believe that the costs of entrenchment outweigh the benefits given future uncertainty.  

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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