The federalists or nationalists were more concerned with their creature, the federal government, being hamstringed and useless like the Congress under the Articles of Confederation. They weren’t the ones obsessing over government overreach, they were the ‘party’ in power accused of doing the government overreach. Consider the Alien & Sedition Acts of 1798, for example, under which the Adams administration (federalist) arrested political detractors for publishing criticisms of the federal government.
The acts were so controversial that Virginia and Kentucky unilaterally declared them unconstitutional, a precedent to the secessionists in the mid-nineteenth century.
This was despite the freedoms of speech and the press being explicitly protected in the bill of rights.
My thanks again for all the thoughtful analysis. A question re: “and are still left to”—is this tradition (for lack of a better word) or is there a constitutional basis for asserting that the states alone are the arbiters and protectors of unenumerated rights?
For that matter, same question for common law being the source of unenumerated rights—is this simply long-standing tradition or is there text that says this must be so?
Worded differently, is there anything a textualist (absent originalism) would be offended by if a Justice concluded that societies evolve, and rights heretofore ignored in common law are now obvious to the modern citizen? Would a textualist be able to point to specific words that prohibit such a perspective in determining constitutional matters?
Umm, the only reason Bork talked about it was because it is cited in Griswold.
Given that Griswold leads directly to Roe I’d think your “nobody” here is a rather curious use of the word “nobody”.
The original intent is never more important to me than the actual text, but I think if the meaning of a word changes over the years the original meaning should control.
For example I would not under any circumstance interpret Congress’s power to create “post Offices and post Roads” so as to include broadband networks. Despite the advent of e-“mail” and internet “posts”, the words when inked in 1787 referred to physical delivery. Communication by signal would have been termed “semaphore”, “signal”, or some other word.
Another example, the word “he” in 1787 (e.g. as used to describe the President in Art. II) could refer to a person of unknown gender. Such is not usually the case today and may never be the case in the future. But it will always be wrong to read Article II as requiring a male President, by virtue of the pronoun “he”.
Common law is one of two major legal traditions in western civilization, the other being civil law.
In a nutshell, common law is derived from judicial decisions. Under this legal tradition the courts decide what the law is. Judges in a common law system will adhere to precedents, a doctrine called stare decisis. Each decision is built off the rationale of prior decisions, which creates a body of case law. In historic common law systems, there were no statutes covering tort law, contract law, or even criminal law. Those fields were handled by judges, who recognized the existence of rights without any statutory grant. The legal tradition upheld such rights through deference to judicial precedents. Of course, sovereign entities such as the English Parliament or the U.S. States have done much codification, but where the statutes are silent, common law still rules.
A “common law” marriage - the right of people to marry, rather than asking the state or the church - was protected under common law in England until abolished by statute in the mid-18th century. Seven U.S. states and D.C. still recognize common law marriages entered into in their jurisdiction. All U.S. states recognize common law marriages legitimately entered into in another state. On the other hand, there was never a common law right to divorce, so a common law marriage may only be dissolved according to statute.
Though each state (except Louisiana) originally received the common law from England, at the time of ratification each sovereign state had developed its own unique body of common law; a judge in New York was not bound by precedents set in Massachussets. There was no nationwide body of common law until the federal government was created, except fifty-six admirality cases under the Articles of Confederation.
Amendment X to the Constitution specifies that all powers not given are reserved to the states or the people. The federal Constitution did not empower the federal government to destroy the common law of each individual state, and to this day each state retains its own body of common law. A judge in New York is still not bound by precedents set in Massachussets. The Constitution did, however, create a federal judiciary with the “judicial power” to hear certain cases and controversies, Art. III section 1. This power is defined in Art. III section 2 and Amendment XI:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
[…]
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The list in that first paragraph is presumed to be exhaustive, by the same rule of construction that would apply to the Bill of Rights but for the 9th Amendment.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority […]
Neither a case arising under the Constitution, nor under any statute, nor under a treaty, is a case at any individual state’s common law. But the Supremacy Clause holds that these same three sources comprise the “supreme law of the land”. From this text we may infer that insofar as any Constitutional provision, federal statute, or treaty contradicts an individual state’s common law, or is held by the Supreme Court in such a way that contradicts a state’s common law, the state’s common law must subside.
In cases between two different states, or citizens of different states, the federal courts are bound by state statutes but not the interpretations of state courts. Thus there exists a body of “federal” common law, only applicable to interstate cases, built off decisions where the federal courts interpret state laws.
Finally the Constitution nationalizes some areas of law, such as the uniform immigration and bankruptcy laws (Art. I section 8 clause 4), admirality cases (Art. I section 8 clause 9). The Constitution also creates new areas of law which are exclusively federal, by virtue of creating a federal government, such as military law (Art. I section 8 clause 14) or the laws regulating how the government borrows and repays its debts (Art I section 8 clauses 2 & 18; Amendment XIV section 4). When Congress does not prescribe how to resolve a case in these areas, the federal courts have to fill in the blanks. That means shaping federal common law, even common law rights not enumerated in the Constitution. The Supreme Court so held in Clearfield Trust Co. v. United States, 318 U.S. 363 (1943).
A textualist would say that certainly societies evolve which is why there is an amendment process provided for in the Constitution, so that when societies evolve, then the Constitution can be changed.
I agree that the Ninth should be very limited. If you leave it up to the whims of nine lawyers on the Supreme Court, it could mean anything if it is not grounded in something other than “We now think this is a good thing.” I’m sure at one point in time you could have gotten 5/9 votes for “racial purity” being an obvious right that the people retained.
Any listing of rights contained in the Ninth would be sort of self-defeating as its purpose is not to confine itself. However, again, it must be based on something, and I view it as the sort of history and traditional rights: to own property, the right of fit parents to have care, custody and control of minor children, the right to engage in any lawful occupation, and things like that which are rooted in what the founders believed were the rights of free people.
It is also instructive that the BOR was not originally applicable to the states. It was put in place, over the objection of federalists (because they said, there is no power given to the national government to do these things, so why do we need it?) to make super duper sure that the feds would not trample on the power of states to control most things. Now, the argument is that the feds, through the Supreme Court, should take away the power of states to control most things. Sort of puts the BOR on its head.