The "Foundations" of Anti-Foundationalism - Or, Taking the Ninth Amendment Lightly: A Comment on Daniel A. Farber's Book on the Ninth Amendment

Authors

• Thomas B. McAffee, University of Nevada, Las Vegas -- William S. Boyd School of Law

Abstract

The Ninth Amendment has served two purposes in constitutional discourse – to refute “textualists” and “originalists,” and to supply the historical grounds for reading the Constitution as a “rights–foundationalist” document. Professor McAffee’s review of Professor Farber’s book on the Amendment raises the question whether, given his prior rejection of “foundationalism,” Professor Farber is able to reconcile these two ends. The review also suggests that, even if the Amendment did grow from the environment that gave us the Declaration of Independence, its history gives us reason to doubt that its purpose was to provide for the legal enforcement of unstated moral claims, or natural rights. Indeed, Professor McAffee contends that the purpose of the Ninth Amendment was to protect the rights retained residually by the system of limited powers granted to the national government under the Constitution. However, even if we would read the text and history differently, Professor Farber’s work seems ultimately at least as committed to his “pragmatism” as it is to instilling reverence for the claims of unenumerated rights.

Recommended Citation

Thomas B. McAffee, The "Foundations" of Anti-Foundationalism - Or, Taking the Ninth Amendment Lightly: A Comment on Daniel A. Farber's Book on the Ninth Amendment, 9 Nev. L.J. 226 (2008).
Available at: https://scholars.law.unlv.edu/nlj/vol9/iss1/8