I will be giving a Federalist Society sponsored talk on “Scalia’s Infidelity: A Critique of Faint-Hearted Originalism” at the University of Pennsylvania Law School on Thursday (tomorrow) from 3-4:30pm in Silverman Hall, Room 240. Penn Law Prof Kermit Roosevelt (author of this novel) will be commenting. The paper on which my talk is based is available for downloading here. The talk is open to the public.
On Friday, February 10th, I will be speaking at Penn at a symposium on “The Future of Unenumerated Rights” sponsored by the University of Pennsylvania Journal of Constitutional Law. My panel is at 12:45pm; the complete schedule with directions can be found here. It is really an All Star line up of participants.
My paper is entitled, “Who’s Afraid of Unenumerated Rights?” Here is the abstract:
Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted and what protection they do receive is subject to intense criticism. In this essay, I examine why some are afraid to enforce unenumerated rights. While this reluctance seems most obviously to stem from the uncertainty of ascertaining the content of unenumerated rights, I contend that underlying this concern are more basic assumptions about legislative sovereignty and the proper role of judges. I explain why a proper conception of constitutional legitimacy requires that unenumerated rights be protected somehow; and that judicial protection is not as problematic as commonly thought once it is acknowledged that all liberty may be reasonably regulated (as opposed to prohibited), and that we need ascertain the scope of unenumerated rights only to identify wrongful behavior that may be prohibited altogether because it invariably violates the rights of others.
This paper, which is available for download from SSRN here, addresses some of the practical issues raised by the original meaning of the Ninth Amendment and Privileges or Immunities Clause of the Fourteenth. Those interested in the evidence of the original meaning of the Ninth Amendment should take a look at my paper The Ninth Amendment: It Means What It Says, available for download here.
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