What’s more, the founding was a work in progress, with the Constitution a product of that evolving dialogue. The Madison who initially opposed a bill of rights, for example, was not the Madison who later championed and drafted one. When he introduced his bill in the first Congress, that later Madison confidently predicted that “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.”
I start with the founding as a work in progress, culminating with the Bill of Rights, because like most who’ve studied the subject, I believe the Antifederalists’ most important contribution to the founding was their demand for such a bill. They did so, first, because they saw the document as lacking genuine representation through its centralization of powers over a vast population; and second, because those powers were broad and vague and therefore likely to be abused. But at the same time, their distrust of a federal judiciary leaves unclear just how they thought those rights would be enforced. Brutus, for example, feared that federal judges would be “independent of the people, the legislature and every power under heaven” — independent even “of heaven itself.”
Yet it was charges like that that drove Federalists like Hamilton, in Federalist 78, and Madison to respond with a conception of the courts that addressed the Antifederalists’ basic fear — that the new Constitution would threaten their liberties. Thus, I’ll argue that in addition to their direct contribution of a bill of rights, the Antifederalists’ more important indirect contribution, once they saw confirmation as inevitable, was to have encouraged Federalists to a deeper understanding of the role of the courts in protecting liberty, as illustrated in that Madison quote — and as reflected especially in the Ninth and Tenth Amendments, which hark back to our precise Founding with the Declaration of Independence and the moral and political theory it outlines.
That theory animated Federalists and Antifederalists alike. In fact, both sides had the same basic end — to secure liberty through limited government. Their differences were largely over means, and not without reason, because there’s a tension in the Declaration itself. The famous second paragraph, invoking state‐of‐nature theory, declares first our natural rights to liberty. But then, invoking social‐contract theory, we’re told that to secure those rights, we institute government, its just powers derived from the consent of the governed. There’s the rub, of course — consent. Absent unanimity, we have coercion, which all the hand‐waving in the world, including arguments from tacit consent, won’t correct. Thomas Paine put it plainly: “Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.”
But that’s not all bad, because once we recognize that government, at bottom, is a forced association, a powerful conclusion follows, namely, there’s a strong presumption against doing things through government. We can fall back then on second‐best solutions to the consent problem. We can distinguish genuine public goods from private goods: national defense, law enforcement, clean air, where limiting liberty is justified, given the free‐rider problem, by considerations like non‐excludability and non‐rivalrous consumption, as economists explain. But those arguments won’t justify the public provision of private goods like education, health care, or retirement security. Public provision of those is an invitation to majoritarian tyranny. Think Obamacare.
Fortunately, the Framers approximated that presumption against government when they enumerated Congress’s 18 legislative powers, aimed variously and instrumentally at securing our rights, with the Tenth Amendment making explicit what was only implicit in the enumeration — that the powers “herein granted” were the only powers we’d delegated to the federal government.
With that express limitation of federal powers through the Tenth Amendment, while reserving the rest to the states or the people, the Framers spoke to a core Antifederalist concern, the centralization of too much power, while retaining powers necessary for addressing the concerns that gave rise to a new Constitution in the first place — national security, the national debt, and state interference with contracts and free interstate commerce, for which the Antifederalist focus on local government offered no real solutions.
The clearest examples of how Antifederalists drove the debate are found, of course, in the Federalist Papers, where Federalists responded to Antifederalists at length. Madison’s discussion there of three particular powers is especially important, given their abuse and expansion over the twentieth century as Antifederalists feared would happen. In Federalist 41, for example, Madison discusses Congress’s power to tax “to provide for the common Defense and general Welfare of the United States,” wording Antifederalists feared would allow virtually unlimited power toward those ends. Madison writes:
Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it. … But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? … Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.
In other words, the terms “common Defense” and “general Welfare of the United States” are simply general headings. It’s in the enumerated powers that follow where Congress finds the objects over which it has authority — and for which it may tax.
Similarly, in Federalist 42, Madison addresses Antifederalist objections about Congress’s broad and vague commerce power by pointing to its function:
A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter.
Thus, the commerce power was granted largely to ensure free interstate commerce — free especially from interference by the states. It was not a power to regulate anything and everything for any reason whatever.
But it was the Necessary and Proper Clause that especially vexed Antifederalists. George Mason objected, for example, that the clause would allow Congress to “constitute new Crimes, … and extend [its] Power as far as [it] shall think proper; so that the State Legislatures have no Security for the Powers now presumed to remain to them; or the People for their Rights.”
Hamilton responded in Federalist 33, calling the clause “perfectly harmless” since it simply gave Congress the means for exercising its enumerated powers. And Madison added in Federalist 44 that “a complete digest of laws on every subject to which the Constitution relates” would have been impossible. But if Congress should misconstrue this or any other of its powers, “the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts.” Presumably, the courts would police the words “necessary” and “proper,” which of course has rarely happened.
Madison’s mention of the judiciary department’s role in policing Congress’s expressly limited powers pursuant to the Tenth Amendment brings me finally to their role in policing rights, especially the unenumerated rights of the Ninth Amendment. Here, Madison had to respond not only to Antifederalist demands for a bill of rights, but to Federalists like Hamilton and Wilson who feared that an incomplete enumeration would imply that rights beyond those enumerated had been conveyed to the national government. As finally drafted, the Ninth Amendment speaks directly to that concern: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
That’s not a mere rule of construction, as some have urged. The text is plain and clear. Unenumerated rights shall not be denied or disparaged. They’re equal to enumerated rights, to be enforced like enumerated rights. Alluding to both state‐of‐nature and social‐contract theory, the amendment speaks of rights we “retained” when we instituted government: You can’t “retain” what you don’t first have to be retained. If Hamilton and Wilson were right in saying that a bill of rights was unnecessary because, by the logic of the matter, where powers are few, our rights are vast, are we to believe that we lost rights by adding a bill of rights? Indeed, why would the Antifederalists have demanded a bill of rights if they thought they would lose rights by adding one? Conservatives of the Bickel and Bork strain need to get woke on the Ninth Amendment!
The trouble with unenumerated rights, of course, especially among some conservatives, is thought to be with asking judges to find and define them. But it’s no answer to say that legislatures should define them, because rights are countermajoritarian checks on political power.
Fortunately, the Ninth Amendment is back in play, thanks in no small part to years of Federalist Society debates. In practice, its use could easily and properly arise, through the Fourteenth Amendment’s Privileges or Immunities Clause, where states have used their police power promiscuously, not to protect rights, it’s main function, but to restrict unenumerated personal or economic rights. But in such cases, a judge doesn’t have to “find” a right. He simply has to find no power by asking the state what rights its police power is protecting. If the state comes up empty, as it usually will, that’s the end of the matter. In other words, the presumption against government trumps the vacuous rational basis test.
Griswold v. Connecticut, its reasoning aside, is a textbook case for how that should work, for the statute at issue there protected no rights. Roe v. Wade is an altogether different case, and the Antifederalists, insisting on a bill of rights, plus Madison’s response with the Ninth Amendment, properly understood, helps us to see why.