Devin Watkins takes issue with me over the scope of judicial power. I think, though, that he misunderstands the nature of our disagreement.

He and I both agree that people have a right to wear hats even though that right is not listed in the Constitution. We both agree that the Constitution protects such unenumerated rights. Watkins appears to believe that federal courts therefore have the power and the duty to strike down any laws (or at least any federal laws) that infringe on that right. That’s the point where we part company.

Watkins believes that I wish “to leave these unenumerated rights up to the legislature. That makes no sense: Something that’s a right can’t be subject to legislative grace.” But I don’t believe in leaving these rights up to the legislature. The legislature has to be checked in all kinds of ways, such as by executive vetoes, by a free press, and by elections before a liberty-minded public opinion.

Drafting and ratifying a Constitution that lists enumerated powers of the federal government was an important way of cultivating such a public. Another was drafting and ratifying amendments that list enumerated rights and then say that they are not an exhaustive list. James Madison appears to have thought so, at any rate, in his 1789 speech to Congress in favor of a Bill of Rights. Note also that the speech’s discussion of the role of the courts in defending rights a) comes well after the discussion of the role of public opinion and b) refers specifically to rights “expressly stipulated” in the Bill of Rights.

To say that “a right can’t be subject to legislative grace” begs the question. A natural right exists whether or not a legislature or a court recognizes it. Its existence does not depend on a vote of legislators or a vote of judges. Its recognition and defense, on the other hand, depend on what institutional arrangements have been supplied for those purposes. What arrangements the Founders supplied (and secondarily whether they got it right) are the substance of this dispute.

Watkins’s example of the right to wear hats, borrowed from Founding-era debates, illustrates rather nicely that our unenumerated rights are protected chiefly through nonjudicial means. We are free to wear hats, after all, and not because courts have been busy striking down laws that infringe on it. But our freedom is not absolute. We don’t have an unlimited right to wear them in driver’s license photos or in airport metal detectors. The right has thus been both protected and intelligently refined without substantial judicial involvement, and it is not at all clear that such involvement would have made us better off.

P.S. I also think that Watkins has the late Robert Bork’s view of the Ninth Amendment wrong. Compare his description of that view to Bork’s words quoted here.