The past few days have seen a flurry of advocacy and media coverage about calls to fix the Electoral Count Act. Scholars and experts across the political spectrum have joined the push to update the 19th century statute which outlines the process for casting and counting Electoral College votes. It is this law which governs, among other things, the joint session of Congress to certify the winner of each presidential election. Understandably, that’s on everyone’s mind as we approach the first anniversary of the attack on the Capitol, the tragic and grotesque culmination of the former president’s attempts to overturn his electoral defeat.



It’s a welcome development. At Cato, we’ve been making the case that the Electoral Count Act should be at the top of the agenda, both in response to what happened in the 2020 election and to avoid a similar crisis in the future. My colleague Walter Olson has addressed it more than once, and recently I made the case for why ECA reform should garner Republican support.



Other think tanks and commentators have also been making the case. The conservative American Enterprise Institute has held forums and published reports, and David French put it bluntly in a recent piece headlined “Stop Screwing Around and Fix the Electoral Count Act.” The liberal Center for American Progress just released their own report on the threats to free and fair elections, which prominently includes ECA reform among its recommendations.



On Monday, the Wall Street Journal editorial board chimed in with a piece cataloging the practical and constitutional problems with the ECA, repeating their past calls to adopt some sort of a fix. The next day in the Washington Post, an impressive bipartisan quartet of experts, including former FEC chairman Bradley Smith, authored an op-ed making their case. Also in the Post, liberal columnist Eugene Robinson cited Cato among others in urging ECA legislation to begin making its way to Biden’s desk. 


And that’s just some of the ECA reform advocacy being published. What began as a trickle over the past twelve months is now a veritable torrent.



The New York Times reported last month that congressional Democrats are eyeing the ECA as part of the actions they might take in response to the January 6th attack, and Politico reports now that there is also increasing talk of interest on the Republican side of the aisle. On Wednesday, Senate Minority Leader Mitch McConnell seemed to confirm that, saying the ECA “obviously has some flaws. And it is worth, I think, discussing.”



This unusual outpouring of agreement reflects two things about the need to fix the Electoral Count Act. First, it is important. Nobody wants a repeat of the 2020 crisis or worse. That’s why the policy community is near-unanimous in treating it like a five-alarm fire, regardless of our disagreements on anything else. Second, there is very little substantive disagreement or partisan angle about what needs to be done. There are no hard irreconcilable conflicts about what the law should be, from any ideological perspective.



The law needs to make clear that Congress can only hear objections under narrow circumstances and with a high hurdle, by enumerating an exhaustive list of valid reasons and increasing the number of senators and representatives needed to trigger a debate. The role of the vice president should be spelled out to leave no doubt that his or her job is purely ceremonial. The finality of decisions made by the states and by the Electoral College itself must be respected, in line with the intent of the Framers and the text of the Constitution. The proper role of the courts, which are entirely absent from the ECA even though they will hear and decide most disputes long before they get to Congress, must be taken into account. The timeline of key dates could probably also use some consideration, including clarification of the “safe harbor” deadline intended to put electoral votes beyond congressional dispute.



To the degree there’s been any pushback, it has come not from supporters of Donald Trump but rather from some Democrats who are worried that ECA reform might distract from their own partisan election law bills. That worry is entirely misplaced. Passing ECA reform would have no effect on the chances of passing a party line “voting rights” bill, which is not looking very likely anyway. And whatever the merits of adopting new federal laws about voting procedures and elections administration, they matter for little if a narrow partisan majority in Congress or bad-faith actors at the state level can throw out any result they don’t like. The ECA is both more doable and, frankly, more important.



The ECA is a ticking time bomb at the heart of American democracy. Sooner or later, if left untouched, it will blow up in our faces. The consequences could be catastrophic. The routine clockwork of free and fair elections, the great American innovation of finite terms of office with the regular and peaceful transfer of power, can not be left hanging on a knife’s edge every four years. The Constitution and all it protects, individual rights and the rule of law, depend on getting this right. Limits on government power count for little if there isn’t even agreement on who is the real president, with the violent disputation such a scenario invites.



At Cato, we’re used to being skeptical of bipartisan consensus. We’re often opposed to the policies that result when both parties are in agreement. But in this case, Republicans and Democrats can provide a much-needed moment of unity by doing the right thing. Fixing the Electoral Count Act is one of the most important things Congress could do to pull us back from the cliff heading into the next presidential election. From the aftermath of one of America’s most shameful moments of partisan division and mutual distrust, Congress can earn a bit more faith in the system by fixing this pressing problem before it’s too late.
 

Dr. Xiulu Ruan practiced medicine as a board‐​certified pain specialist in Mobile, Alabama. His practice served almost 8,000 patients and employed 57 people. In 2016, he was indicted for unlawfully distributing controlled substances (opioids) and many related criminal charges. At his trial, the government argued that some of Dr. Ruan’s prescriptions fell “outside the usual course of treatment” and called numerous experts to testify to that claim. Dr. Ruan countered with his own experts who testified that his prescriptions were medically valid.

A jury convicted Dr. Ruan based on jury instructions that did not include a “good‐​faith” defense for doctors who truly believe they are practicing good medicine. The Eleventh Circuit, unique among all the circuits, does not allow a good‐​faith defense, meaning doctors can be convicted of serious crimes—Dr. Ruan was sentenced to 21 years in prison—for merely being negligent in how they write prescriptions. And doctors of course disagree in good faith on the proper standard of care all the time, but malpractice claims adjudicated by civil courts are the proper venues to punish doctors who are merely negligent in their medical practice.

The Eleventh Circuit upheld Dr. Ruan’s conviction and he appealed to the Supreme Court, which agreed to hear his case. Cato has filed an amicus brief in support, arguing that the Controlled Substances Act (CSA) requires a good‐​faith defense to differentiate between doctors who are earnestly practicing medicine and those who distribute controlled substances without a medical purpose—i.e. “pill pushers” or “pill mills.”

Over 100 years ago, the Harrison Narcotics Act became the first major federal drug law. It ended the practice of over‐​the‐​counter opioids and cocaine while allowing various medical professionals to distribute the drugs “in the course of his professional practice only.” The Harrison Act was a tax law, and it was enforced by the Treasury Department. Within a few years, treasury agents were prosecuting doctors who were alleged to have prescribed opioids to patients in order to maintain their addictions.

The Supreme Court heard many challenges to the Harrison Act from various doctors who were charged under it. In 1919, the Court ruled that prescribing “maintenance doses” to people who were addicted to opioids did not qualify as a legitimate medical purpose. At no point, however, did the Court assume that a good‐​faith defense was not available to doctors who legitimately believed they were practicing good medicine.

That interpretation carried over to the CSA, which became the main federal drug law in 1970. We argue that allowing doctors to use a good‐​faith defense is not only historically justified, but it is essential to keeping the CSA within proper constitutional boundaries. States retain the power to regulate the medical profession under their traditional police powers. Without a good‐​faith defense, the CSA comes close to unconstitutionally regulating the medical profession. Disagreements over standards of care are properly adjudicated in state courts, and federal jurisdiction should only kick in when a doctor has abandoned the subjective intent to practice medicine and become a drug dealer.

Moreover, prosecuting doctors for “misprescribing” has become so common that many doctors are afraid to prescribe opioids. Yet there is no agreed‐​upon standard for “misprescribing,” especially when it comes to chronic pain patients, of which there are about 20 million in the country. The standards are so vague that doctors don’t know when they have crossed a legal line, which undermines the Constitution’s guarantee of due process of law.

The Supreme Court should overturn Dr. Ruan’s conviction and correct the Eleventh Circuit’s erroneous interpretation of the Controlled Substances Act. Doctors who sincerely believe they are practicing good medicine should not be treated like drug dealers.

(My Cato colleague Dr. Jeffrey Singer joined a brief as an amicus in the case).

Ruth Marcus, deputy editorial page editor and columnist for the Washington Post, is very concerned that the Supreme Court may strike down President Biden’s attempt to create a nationwide vaccine mandate. But she’s too honest not to acknowledge that the order is skating on thin legal ice. She identifies the questions the Court will consider:

Can federal agencies impose mandates using laws that were hardly designed with a global health crisis in mind? Or must regulators wait for that authority to be made clear by Congress, which has proved itself increasingly incapable of governing?

Good questions. She also notes that “these mandates represent aggressive, even unprecedented, uses of federal regulatory authority.” Which is always a good reason for courts to take a close look at the cases and the Constitution. Marcus acknowledges the Court’s

ruling earlier this year that the federal Centers for Disease Control and Prevention exceeded its authority in issuing a moratorium on evictions for those in areas with high covid-19 spread.

“It would be one thing if Congress had specifically authorized the action that the CDC has taken,” the court said in an unsigned opinion. “But that has not happened. Instead, the CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination.”

Marcus notes that the Occupational Safety and Health Act “allows OSHA to issue emergency rules when it deems them ‘necessary’ to protect employees from ‘grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.’” And she argues, “It doesn’t seem like much of a textual stretch, if a stretch at all, to consider the coronavirus an ‘agent’ that poses ‘grave danger’ to workers.” But she knows that “OSHA has never before imposed such a broad, nationwide and non-industry-specific requirement.”

Marcus is not happy about a Court that, she says, “is itching to rein in administrative agencies and is disinclined — to put it mildly — to read agencies’ authorities broadly.” People who favor limited government, who know that, as the Court ruled in 1995, “The Constitution creates a Federal Government of enumerated powers,” will have a different view. 

P.S. Marcus has an excellent column on current First Amendment controversies in today’s Post. 

Recent reports indicate that, after mostly ignoring it for a year, members of Congress are moving forward with exploring possible reforms to the antiquated 19th century statute which was at the heart of the controversy over the 2020 election.



The Electoral Count Act, passed as a belated response to the disputed Hayes-Tilden election in 1876, is the federal law which lays out the procedures for how members of the Electoral College are certified, cast their votes, and the votes are then counted. It fills in the details in the Constitution’s sparse description of how the United States elects a chief executive.



It was under this law that a majority of House Republicans, and a small minority of Senate Republicans, objected to the results of several states in the 2020 election. Under the procedure that allows any one representative together with any one senator to object to a state’s votes, the House and Senate adjourned from their joint session to consider objections to the votes of two states, Arizona and then Pennsylvania. It was during the debate over Arizona that Congress was interrupted by rioters storming the building. Another four states saw objections from House members but no senator joined them.



The Electoral Count Act is a mess of ambiguities and contradictions, as Cato’s Walter Olson has noted, among many others across the political spectrum. It’s unclear on what constitutes a proper basis for objections, offering only the maddeningly imprecise phrase “not … regularly given.” It’s vague and even contradictory on how and when states can submit their votes with finality. It doesn’t take cognizance of the role of the courts in adjudicating disputes. It’s unclear on how much, if any, discretion is given to the vice president as president of the Senate. It opens the door for Congress to effectively decide the results of an election, something the Framers specifically rejected at the Constitutional Convention. And the whole edifice arguably exceeds Congress’s constitutional powers by permitting the rejection of constitutionally valid and binding electoral votes.



In the aftermath of the 2020 fiasco, it’s understandable why Democrats would take interest in the law. The ECA has also long been subject to academic criticism from legal scholars and election experts. But even with majorities in both chambers and control of the White House, the ability of Democrats to act without bipartisan support is tightly constrained. There’s no credible argument that Electoral Count Act reform falls under the budget reconciliation process, which allows things to be passed by simple majorities in the upper chamber. In the Senate, at least ten Republicans must join with the Democrats’ slim majority to advance any substantive legislation over the procedural hurdle of a filibuster. 



It would be a mistake, on both sides, to make Electoral Count Act reform into a partisan affair. It’s in the interest of both parties–and even Republicans who supported Trump’s objections in 2020–to put the process of presidential elections on a firmer foundation. Here are a few of the reasons why Republicans should embrace the cause of ECA reform:

Respecting the States and Electoral College

As Sen. Mitch McConnell noted on January 6, Republicans have usually been defenders of the Electoral College and its protections for the states. After all, two of the three Republican wins in recent elections came with a candidate who won the Electoral College while losing the national popular vote. That includes Trump’s victory in 2016. The Electoral Count Act as it stands puts the Electoral College on shaky ground, effectively subject to the whims of mere simple majorities Congress. Reforming the ECA is a key piece of protecting the Electoral College and respecting the rights of states to conduct their own elections.



Constitutional Originalism

The Electoral Count Act’s current provisions make a muddle of the Constitution’s design for presidential elections. The Framers deliberately took the selection of a president away from Congress and gave it to the states and through them, the people. It’s an essential component of checks and balances that the president isn’t elected by and doesn’t answer to Congress (except through the impeachment process with its high supermajority hurdle). It’s not clear that Congress and the vice president were intended to have any substantive role at all in counting and certifying the electoral votes. And if they do, it should be limited to only a narrow range of circumstances where the votes are facially invalid under explicit constitutional rules, such as if a state tries to cast more votes than it has, or if votes are cast for an ineligible candidate. The Framers intended to leave it up to the states to decide how their electors are chosen, including certifying the result if they choose to do it by popular election, as all states do. For constitutional conservatives as well as defenders of executive branch independence, the Electoral Count Act as it stands should be an anathema.



Democrats Have Abused It, Too, and Could Again

2020 wasn’t the first time in recent years that objections have been raised to counting electoral votes. As many Republicans noted, there was some Democratic hypocrisy here. Democrats in the House raised objections to results in 2016, 2004, and 2000: in other words, every presidential election won by Republicans this century. One of those times they found a willing Senate cosponsor, forcing the House and Senate to adjourn to their respective chambers and debate a baseless protest driven by debunked conspiracy theories (sound familiar?). Suppose that in 2024 or a subsequent election, there are Democratic majorities in Congress and a Democratic vice president, as is currently the case. Are Republicans comfortable letting their election wins depend on Democratic acquiescence?



Let the Courts Work

The Electoral Count Act recognizes no role for the courts in deciding disputes, even though courts usually take the lead on hearing and deciding lawsuits over election results. In 2020, Republican-appointed judges and Supreme Court justices resoundingly rejected the weak legal arguments advanced by Trump’s campaign. But more credible arguments in a closer election could be made in the future. In 2000, after all, it was the Supreme Court, not Congress, that ultimately resolved the election in favor of George W. Bush. Courts are better and more natural forums for handling the intricate factual and legal disputes which can arise in a contested election. In practice, courts are able to resolve any legal disputes not only long before the process reaches Congress in January, but also before the crucial date in mid-December when the Electoral College meets and votes. Letting the courts work and decide what they can leaves a much smaller range of potential scenarios for Congress to face.



It’s a Backdoor to the National Popular Vote

It’s likely that we’ll see another election where Republicans win the electoral college while getting fewer popular votes nationwide. Under the essentially unlimited ability of Congress to toss out votes under the ECA, Democrats could easily abuse the procedure to overturn that outcome, citing their belief that the national popular vote should be determinative. Or suppose Trump himself is the 2024 Republican nominee, which many observers see as likely, and he really does win this time. Already, arguments have been raised that the events of January 6th disqualify Trump under Section 3 of the Fourteenth Amendment, which was intended to disqualify former Confederates in the aftermath of the Civil War. It’s not a very good argument, but in combination with a popular vote loss, it could be enough for congressional Democrats to have a plausible rationale for their own subversion of an election’s outcome.



Kamala Harris Is the Vice President

In 2020, Trump and many of his legal advisors and congressional supporters embraced the argument that Mike Pence, in his role as president of the Senate, could unilaterally decide whether to count a state’s results. Pence rebuffed them, admirably insisting that his oath to the Constitution did not allow him to claim the power to decide who won the election. But next time, a Republican won’t be presiding over the count. The incumbent vice president is now, of course, Kamala Harris. Especially with the likelihood that Republicans will retake one or both houses by then, Harris might end up under immense pressure to do what Pence would not. Her position might be the only way Democrats can affect the outcome in Congress. Without clear language in the Electoral Count Act to prevent it, a Democratic vice president could just as easily claim the power to reject votes, no matter how thin their argument is for doing so.



–



There’s already a broad consensus about what needs to be done to fix the Electoral Count Act. Ambiguities should be clarified. The grounds on which Congress can reject votes should be narrowly constrained. The role of the vice president should be made clear. States should have fair notice of what they’re expected to do and how they can make their electoral votes beyond reproach. The proper role of the courts should be taken into consideration. The thresholds for objections to be made, and/​or for Congress to accept objections, should be raised so that bipartisan agreement is necessary. Credible constitutional objections to the ECA should be resolved. There are details that need to be decided on all these things, but none of them should be fatal to crafting a proposal members of both parties can endorse.



It’s important for Democrats to recognize they need Republican votes here, and act accordingly. ECA reform should be a standalone bill, not tied to other, more controversial changes to voting laws which Republicans have already made clear they don’t support. Reports that proposals for ECA reform will come out of the House’s January 6th Committee are especially worrying. While it might make some sense in that the ECA played a major role in January’s tragic events, the committee is already seen as a partisan affair. ECA reform should instead be negotiated and introduced with bipartisan sponsors, since Republicans are very unlikely to endorse anything coming from a committee populated solely by Nancy Pelosi’s appointees.



Republicans should see there are both good, principled reasons to support ECA reform as well as strong reasons of partisan self-interest. The status quo serves neither party. The necessity of obtaining Republican votes for ECA reform will also let them nix any changes they find unacceptable, but only if they’re at the table.



We shouldn’t be facing a constitutional crisis every four years, and Republicans are as likely as Democrats to eventually be on the losing side of such a dispute. Reforming the Electoral Count Act should be a rare case in today’s Washington where both parties can find agreement and come together to avert the next crisis before it begins.




 

The University of North Carolina (UNC) explicitly awards racial preferences to “underrepresented minorities” in the admissions process for its undergraduate students. This preference is not merely a small part of its decision making process. In many circumstances, UNC’s admissions officers explicitly focus on racial classifications, treating an applicant’s race as a top-line qualification alongside GPA and SAT scores.

As a companion case to its challenge to Harvard’s system of racial preferences—which on its face seems statistically more significant—a group called Students for Fair Admissions has petitioned the Supreme Court to review a district court’s decision to uphold UNC’s admissions practices. Cato has filed an amicus brief supporting this petition.

We argue that the Court should hear the UNC case in conjunction with the Harvard case. Current doctrine holds Title VI of the Civil Rights Act to apply restrictions on private universities receiving federal funds equivalent to the protections of the Fourteenth Amendment’s Equal Protection Clause, but it’s important that the Court specifically hold public institutions to the Constitution’s prohibition on racial discrimination. Racial classifications by the government are particularly destructive, because they signify a polity’s collective position. Moreover, evaluating the particulars of UNC’s practices will give the Court greater context with which to consider the harms of racial classifications in higher education.

The Court has a longstanding practice of using public institutions as vehicles to address affirmative action cases in higher education. We urge the Court to continue that practice, review UNC’s policies alongside Harvard’s, and hold that the Constitution proscribes racial preferences in public institutions of higher education.

“Mr. Bond, they have a saying in Chicago: ‘Once is happenstance. Twice is coincidence. The third time it’s enemy action’.”

That Ian Fleming line (from Goldfinger) came to mind with news that not one or two but multiple efforts to rationalize setting aside the results of the November election were circulating in the Trump White House in the weeks leading up to January 6.

We already knew about the most putatively respectable of these, the John Eastman memos. As law professor Jonathan Adler, a member of the academic advisory board of the Cato Supreme Court Review, has written, this memo in both its versions relies “on the false claim that there were ‘dual slates of electors’ transmitted to the Senate, adopts an expansive (and unjustified) interpretation of the Vice President’s authority under the Twelfth Amendment, and urged Vice President Pence to unilaterally disregard the Electoral Count Act and reject slates of electors certified and transmitted by seven states on the grounds that such a move would avert a ‘constitutional crisis.’”

But there’s more. On Friday Politico reported that Trump campaign lawyer Jenna Ellis “wrote two legal memos in the week before the Jan. 6 Capitol attack that claimed then-Vice President Mike Pence had the authority to refuse to count presidential electors from states that delivered Joe Biden the White House.” While the quality of Ellis’s work on the memos may leave much to be desired, Jonathan Karl in his book Betrayal reports that one of them (to quote Politico) “was delivered to Trump’s office by Mark Meadows, then White House chief of staff.” That is among what appear to have been numerous steps by the chief of staff to circulate theories within the executive office that might justify overturning the election results.

Yet another document to surface in recent days is a slide deck based on wacky theories of imagined foreign interference and urging ways to nullify state results. A retired colonel who promoted the theories appears to have been given considerable access to and by the White House, Trump campaign lawyers, and members of Congress.

It’s all getting to look like more than happenstance, no?

That doings of this sort were afoot is not exactly a surprise. On Dec. 29, 2020, I published a post in this space marching through the logic of why President Trump could not, in fact, keep himself in office following his electoral defeat by declaring martial law or invoking the Insurrection Act. That such a piece was relevant at all was only due to such options’ having become a part of the conversation in TrumpWorld in the weeks after the election. Michael Flynn, Trump’s first national security advisor, declared in an interview with Newsmax that his former boss could “take military capabilities, and he could place them in those [swing states], and basically re‐​run an election” in those states.

Flynn’s former boss did little, we might say, to discourage such talk. Trump throughout his career has denounced his own losses and setbacks as the result of fraud and rigging, even including Ted Cruz’s victory in the 2016 Iowa Republican caucuses. Before beating Hillary Clinton he had prepared the way for claims that his expected loss was the result of fraud, and so forth.

Political scientists who study irregular power successions have a Spanish term I find fascinating, pronunciamiento. It can refer to a coup itself (typically by the military) but it can also mean the detailed explanation (or “pronouncement”) put out for wider consumption – read aloud in public squares, for example – of why an unexpected person was now occupying the presidential palace, or why an incumbent was still there despite the expiration of his term. Part of the idea here was that some gesture of persuasion was needed to paper over the raw exercise of power, even if its only effect was to confuse the issues sufficiently that relevant constituencies could shrug and go along, saying no one is really sure who’s right.

It doesn’t seem like coincidence that the Trump administration in its closing weeks had multiple pots of prospective pronunciamiento simmering away on the stove.

I had a letter in yesterday’s Wall Street Journal critiquing Judge Raymond Kethledge’s Nov. 30 WSJ review of Randy Barnett and Evan Bernick’s new book, The Original Meaning of the 14th Amendment. I write here to expand on a point or two that could not be adequately addressed in a short letter to the editor.

Focusing on judicial review—the power of judges to overturn statutes and executive actions—Judge Kethledge locates the practice in our written Constitution and the basic power of judges, pursuant to it, to say what the law is: Marbury v. Madison, 1803. Yet since then, he adds, “the Supreme Court has frequently invalidated legislation based on conflicts with rights absent from the written Constitution—so-called ‘unenumerated rights.’” (my emphasis) Hold that thought.

Judge Kethledge stands expressly in the tradition of Judge Robert Bork whose writings late in the last century informed the conservative “judicial restraint” school. Responding to what many conservatives saw, often rightly, as the Warren and Burger Courts’ “judicial activism”—upholding powers never granted; finding rights nowhere to be found—these conservatives urged judges to be deferential to the political branches, the very branches, ironically, that were giving us the redistributive and regulatory administrative state that conservatives were otherwise railing against. But more to the point here, with their call for judicial deference these conservatives were turning our Madisonian Constitution on its head by privileging the right of self‐​government over the right of individual liberty. The Framers, by contrast, saw democratic rule not as an end in itself but rather as a means toward securing liberty. Otherwise, democracy could be a means for enabling political majorities to rule unconstitutionally over individuals and political minorities.

To prevent that, however, we need to be clear about the constitutionality of the many political actions coming before the courts. And when state actions are at issue, as in a 14th Amendment context, that usually means determining also what rights we do and do not have, which brings us back to the unenumerated rights the Ninth Amendment recognizes. Most conservatives had little trouble with judges securing rights enumerated in the Constitution’s first eight amendments. But when it came to the Ninth Amendment’s unenumerated rights, as well as the 14th Amendment’s “privileges or immunities,” they balked, fearing that those broad provisions would encourage judicial activism. Thus, when conservative judges decided cases raising such unenumerated rights they often deferred to the political branches, which amounted to letting those politically accountable branches say what our unenumerated rights were.

There are problems with doing that, of course. First, it enables democratic majorities, which at best is what democracy reduces to, to be judges in their own case. But second, as a constitutional matter this approach ignores the Ninth Amendment’s text: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” As we know from the records, including the Federalist, the Ninth Amendment was included in the Bill of Rights because it was impossible to enumerate all of our rights; but the failure to do so would be construed, by ordinary rules of legal construction, as implying that such unenumerated rights were not to be secured. Thus, to guard against that outcome, the Ninth Amendment was added.

But notice, unenumerated though they are, those rights are nonetheless in the Constitution, in its text, which is no small matter for textualists and originalists. Moreover, and perhaps more important, those conservatives who draw a sharp line between enumerated and unenumerated rights—the former to be secured, the latter ignored—elide the fact that no rights are precisely defined. Where, after all, do they find a right to burn the American flag, or to contribute financially to political campaigns, or to send our children to religious schools, all of which and more the Supreme Court has “found”? All rights require judicial interpretation, even if unenumerated rights require more work to discern and define in the context before the court than more specifically described rights. Conservative judges have understood this sub silentio, of course, even if they haven’t developed a theory of the matter that is grounded in the Constitution’s underlying theory of legitimacy: rights first, powers second, to secure rights, as noted above. Instead, they’ve appealed to such things as whether the purported right is “deeply rooted in the nation’s history.” But that consideration is little helpful, for if the right is deeply rooted, it’s probably already secured. And besides, that consideration has limited bearing on whether such a would‐​be right is legitimate. The right to own slaves, after all, was deeply rooted in the nation’s history.

Far more useful would be to ask simply what right(s) the statute or executive action at issue is protecting, or what compelling state interest is served by upholding the statute or action—for example, the provision of some narrowly defined public good that would otherwise not be provided due to a free‐​rider problem. If it turns out, as the examples in my letter suggest, that statutes or acts prohibiting parochial school education, interracial marriage, vast forms of economic liberty, and more are protecting no rights at all but, on the contrary, are violating such unenumerated rights as the right to educate your child in a parochial school, to marry whomever you wish, or to earn an honest living free from unwarranted regulatory interference, then the statute or executive action must fall. True, it takes a little more work to discern a so‐​called unenumerated right, but the principles of adjudication are the same with all rights, enumerated and unenumerated alike. Thus, from both a textual and an adjudicatory perspective, judges must uphold our written Constitution by discovering and securing unenumerated rights, just as they must and do with enumerated rights.