Jeff Rowes continues his great series of posts at Volokh. Here is his latest piece, where Jeff discusses unenumerated rights, the rational basis test, Footnote Four of Carolene Products, and judicial minimalism. I have copied a few choice nuggets:
But no one seriously disputes that unenumerated rights exist, although there is considerable debate over their nature and scope. Who doubts that we have the right to travel or vote or raise children? The right to earn an honest living in the lawful occupation of your choice was among the first unenumerated rights the Supreme Court recognized and that right has an undeniable basis in the Privileges or Immunities Clause of the Fourteenth Amendment (see Randy Barnett’s outstanding scholarship).
The history of the Constitution supports unenumerated rights. Madison presciently warned against enumerating rights because he foresaw what has become a cornerstone of the judicial-minimalist worldview: the argument that the only rights we have are enumerated ones.
Inordinate emphasis on protecting only the relatively few enumerated rights cannot be squared with the Constitution as a whole. The Bill of Rights was part of a constitutional scheme that was both intended and understood to have created a government of limited, enumerated powers. Had the authors of the Constitution known that what I’ll call “legislative activists” in the elected branches would, with the eventual approval of the courts, repudiate any structural limitations on their power, then we would likely have a much different Bill of Rights, one that presumably would have expressly identified a much larger set of liberties. Judicial minimalists should understand that the enumeration of certain rights does not reflect a decision by the Constitution’s ratifiers that the federal government is supposed to be, to borrow Randy’s metaphor, a vast sea of government power with tiny islets of liberty.
This slicing and dicing of rights into different categories with different standards of review, and placing an extraordinarily onerous burden on certain rights, is pure judicial invention. Conservative-leaning judicial minimalists should reflect on the irony that their philosophy is rooted in the big-government agenda of the New Deal Era, and that among the Supreme Court’s most “minimalist” decisions—in the sense of showing extreme deference to the elected branches—are its most activist ones such as the refusal to enforce essentially any structural limits on federal power (Wickard, Raich).
There is no reason why the government’s legitimate functions—like protecting public health and safety—necessitate a standard of review in which courts are required to ignore pro-citizen facts, invent pro-government facts, and actively try to imagine reasons to uphold anything a legislature has done. Why is the truth antithetical to constitutional adjudication?