I had a letter in yesterday’s Wall Street Journal critiquing Judge Raymond Kethledge’s Nov. 30 WSJ review of Randy Barnett and Evan Bernick’s new book, The Original Meaning of the 14th Amendment. I write here to expand on a point or two that could not be adequately addressed in a short letter to the editor.

Focusing on judicial review—the power of judges to overturn statutes and executive actions—Judge Kethledge locates the practice in our written Constitution and the basic power of judges, pursuant to it, to say what the law is: Marbury v. Madison, 1803. Yet since then, he adds, “the Supreme Court has frequently invalidated legislation based on conflicts with rights absent from the written Constitution—so-called ‘unenumerated rights.’” (my emphasis) Hold that thought.

Judge Kethledge stands expressly in the tradition of Judge Robert Bork whose writings late in the last century informed the conservative “judicial restraint” school. Responding to what many conservatives saw, often rightly, as the Warren and Burger Courts’ “judicial activism”—upholding powers never granted; finding rights nowhere to be found—these conservatives urged judges to be deferential to the political branches, the very branches, ironically, that were giving us the redistributive and regulatory administrative state that conservatives were otherwise railing against. But more to the point here, with their call for judicial deference these conservatives were turning our Madisonian Constitution on its head by privileging the right of self‐​government over the right of individual liberty. The Framers, by contrast, saw democratic rule not as an end in itself but rather as a means toward securing liberty. Otherwise, democracy could be a means for enabling political majorities to rule unconstitutionally over individuals and political minorities.

To prevent that, however, we need to be clear about the constitutionality of the many political actions coming before the courts. And when state actions are at issue, as in a 14th Amendment context, that usually means determining also what rights we do and do not have, which brings us back to the unenumerated rights the Ninth Amendment recognizes. Most conservatives had little trouble with judges securing rights enumerated in the Constitution’s first eight amendments. But when it came to the Ninth Amendment’s unenumerated rights, as well as the 14th Amendment’s “privileges or immunities,” they balked, fearing that those broad provisions would encourage judicial activism. Thus, when conservative judges decided cases raising such unenumerated rights they often deferred to the political branches, which amounted to letting those politically accountable branches say what our unenumerated rights were.

There are problems with doing that, of course. First, it enables democratic majorities, which at best is what democracy reduces to, to be judges in their own case. But second, as a constitutional matter this approach ignores the Ninth Amendment’s text: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” As we know from the records, including the Federalist, the Ninth Amendment was included in the Bill of Rights because it was impossible to enumerate all of our rights; but the failure to do so would be construed, by ordinary rules of legal construction, as implying that such unenumerated rights were not to be secured. Thus, to guard against that outcome, the Ninth Amendment was added.

But notice, unenumerated though they are, those rights are nonetheless in the Constitution, in its text, which is no small matter for textualists and originalists. Moreover, and perhaps more important, those conservatives who draw a sharp line between enumerated and unenumerated rights—the former to be secured, the latter ignored—elide the fact that no rights are precisely defined. Where, after all, do they find a right to burn the American flag, or to contribute financially to political campaigns, or to send our children to religious schools, all of which and more the Supreme Court has “found”? All rights require judicial interpretation, even if unenumerated rights require more work to discern and define in the context before the court than more specifically described rights. Conservative judges have understood this sub silentio, of course, even if they haven’t developed a theory of the matter that is grounded in the Constitution’s underlying theory of legitimacy: rights first, powers second, to secure rights, as noted above. Instead, they’ve appealed to such things as whether the purported right is “deeply rooted in the nation’s history.” But that consideration is little helpful, for if the right is deeply rooted, it’s probably already secured. And besides, that consideration has limited bearing on whether such a would‐​be right is legitimate. The right to own slaves, after all, was deeply rooted in the nation’s history.

Far more useful would be to ask simply what right(s) the statute or executive action at issue is protecting, or what compelling state interest is served by upholding the statute or action—for example, the provision of some narrowly defined public good that would otherwise not be provided due to a free‐​rider problem. If it turns out, as the examples in my letter suggest, that statutes or acts prohibiting parochial school education, interracial marriage, vast forms of economic liberty, and more are protecting no rights at all but, on the contrary, are violating such unenumerated rights as the right to educate your child in a parochial school, to marry whomever you wish, or to earn an honest living free from unwarranted regulatory interference, then the statute or executive action must fall. True, it takes a little more work to discern a so‐​called unenumerated right, but the principles of adjudication are the same with all rights, enumerated and unenumerated alike. Thus, from both a textual and an adjudicatory perspective, judges must uphold our written Constitution by discovering and securing unenumerated rights, just as they must and do with enumerated rights.