Supreme Court to be unconstitutional,rnthat “decision shall thereby be negatedrnand precedent restored.”rnA basic difficulty with DcRosa’s thesisrnis that the Court’s stance toward thernNinth Amendment and unenumeratedrnrights is not at all clear. We do knowrnthat a majorit’ of the Court has not, asrnyet, deriycd an- unenumerated rightrnfrom the Ninth Amendment, so thatrnDeRosa’s contention that the Court hasrnshown a “willingness to write its understandingrnof unenumerated rights intornthe Ninth Amendment” is clearly anrnoverstatement. Individual Justices, mostrnnotably Arthur Goldberg, have urgedrnthis course upon the Court—so far withrnno success. Likewise, the charge that thern”Supreme Court has been incrementallyrnconstructing the Ninth Amendment intornan instrument of rights nationalism” isrnan exaggeration. In fact, aside from thern”right of privac”—which is not dcrixedrnfrom the Ninth Amendment—unenumeratedrnrights hac not played the majorrnrole that DeRosa ascribes to them.rnDespite this, DeRosa’s concerns regardingrnjuridical imperialism arernwell taken. This imperialism, however,rnhas come about almost entirely throughrnthe 14th Amendment and enumeratedrnrights. Indeed, the Court can acconrplishrnpretty much what it wants withrnenumerated rights alone, thereby obviatingrnthe need to recur to the NinthrnAmendment. It can in’ent extraconstitutionalrnconcepts such as a “wall of separation,”rn”compelling state interest,” orrn”exclusionary rule” to expand or twistrnthe meaning of enumerated rights; it canrnexpand or contract “due process,” “equalrnprotection,” or “libert}'” to suit its fanc-;rnand, if all else fails, it can resort to “substantiverndue process” or “substantixernequal protection.” Recourse to thernNinth Amendment would thus indicaterna sterility of the imagination, an afflictionrnextremely rare among judicial aetix’istsrnengaged in interpreting the Constitution.rnDeRosa’s analysis does help us to understandrnthe erosion of the PhiladelphiarnConstitution. It leads us to appreciate,rnfor instance, that the intellectual heavyweightsrnof the founding era were essentiallyrncorrect when thev argued that a Billrnof Rights was both unnecessary andrndangerous. As DeRosa points out, thernBill of Rights was intended to limit thernpowers of the national government, evenrnthough Madison (the so-called father ofrnthe Bill of Rights), being still in his nationalistrnphase, was not about to insertrninto it any of the things that hard-corernAntifederalists reallv wanted, such asrnamendments that would substantiallyrnweaken the new national gocrnment.rnThe main diffieultv with a bill ofrnrights, as Hamilton, Wilson, and Ircdale,rnamong others, pointed out, was thatrnplacing such limitations on the nationalrngovernment could give rise to the notionrnthat government, rather than being onernof the enumerated powers as designed, isrnone of the plenary or restricted powers.rnMadison made this point succinctly inrnthe Virginia ratification debates when hernrhetorically asked, “If an enumeration bernmade of our rights, will it not be impliedrnthat everything omitted is given to thernnational government?” The Ninth andrnTenth amendments, thus, were clearK’rnintended to plug the hole created by thernlimitations contained in the prior eightrnamendments; that is, they were to preservernthe integrity of the original constitutionalrndesign of a national governmentrnpossessing only enumerated powers.rnThe reasons for the Ninth and TenthrnREADERS!rnIF YOU HAVErnFRIENDS OR RELATIVES WHOrnMAY ENJOY CHRONICLES,rnPLEASE SEND US THEIRrnNAMES AND ADDRESSES.rnWE WOULDrnBE PLEASED TO SEND THEMrnA COMPLIMENTARYrnISSUE!rnamendments were well understood byrnconstitutional scholars until relatively recentrndecades, when ideologically motivatedrnlaw professors and judges, andrnmisguided libertarians, displaying anrnembarrassing ignorance of our constitutionalrnhistory, ripped the Ninth Amendmentrnout of its constitutional context. Ifrntheir view should prevail, and the NinthrnAmendment become part of the “judicialrnarsenal,” the results will even bernmore disastrous than DeRosa predicts.rnTo be sure, the scope of state sovereigntyrnwill diminish even more, but new avenuesrnfor judicial tyranny will open up:rnthe Court will be able to decree “constitutionallyrnmandated” public policiesrnmore readily and with xirtuall)- no limitations,rnsave those that a majority of thernJustices might impose. Such a dexelopment,rnentailing the collapse of the separationrnof powers and the rule of law,rnwould rcmo’c whatever doubts remainrnabout the death of the PhiladelphiarnConstitution.rnIn this regard, DeRosa’s book points torntwo analytically separate problems. Thernmore important one is judicial tyranny,rnwhose source and sustenance is the Billrnof Rights and the 14th Amendment. Arnsecondary problem (though primary, itrnseems, for DeRosa) is that of preserving arnviable federalism. But the kind of federalrnsystem DeRosa, Bradford, and othersrnof similar persuasion want is impossiblernunless the judiciary, at all levels, canrnsomehow be corralled. Suppose, for example,rnwe manage to achieve an effectivern”judicial federalism” along the linesrndescribed by DeRosa, wherein the task ofrnfixing the meaning and scope of rightsrnfalls to the state judiciaries. What is tornguarantee that we would not eentualKrnend up with SO judicial tyrannies?rnHere I do not mean to detract fromrnthe thrust of DcRosa’s argument relativernto the Court, rights, and federalism. Hisrnemphasis on the Court and on rights,rnnot on Congress and the commercernpowers, as the major cause of federalism’srndecline, is on the mark. Of course,rnCongress has abused its commerce powers,rn”ict these politicallv correctablernabuses pale when set beside those of thernCourt. After all, Congress did not orderrnbusing, prohibit voluntar}’ prayer in thernschools, legalize abortion on demand, orrncripple our system of criminal justice.rnAnd we would do well to rememberrnthis in our efforts to restore constitutionalism.rn24/CHRONICLESrnrnrn