Vol. 11 No. 1 (January 2001) pp. 11-13.

INHERENT RIGHTS, THE WRITTEN CONSTITUTION, AND POPULAR SOVEREIGNTY: THE FOUNDERS' UNDERSTANDING by Thomas B. McAffee. Westport, CT: Greenwood Press, 2000. 200 pp. Cloth $65.00. ISBN: 0-313-31507-8.

Reviewed by Daniel Levin, Department of Political Science, University of Utah.

With a title like INHERENT RIGHTS, THE WRITTEN CONSTITUTION, AND POPULAR SOVEREIGNTY, one might expect Thomas McAffee's new book to cover considerable ground. Fortunately, its focus is much narrower. McAffee's major project is to describe the debate over the meaning of the Ninth and Tenth Amendment during the Federal Period. He then employs the debate to examine whether the addition of the Bill of Rights to the Constitution changed the presumption that the people retained all rights not delegated to the federal government into an understanding that there are enforceable rights retained by the people beyond those specifically articulated in the Bill of Rights. Although McAffee accomplishes this narrower task, his larger narrative is poorly focused and no clear thesis ties it together.

The book begins with an introduction that largely lays out a debate between those who believe in a natural law foundation for the Constitution and those who would read it as positive law. McAffee identifies the Ninth Amendment as the natural site for such battles. Unfortunately, he fails to set forth a thesis as to the proper reading of the history or text. Instead, he frustrates the reader by ping-ponging between the two sides without declaring a preference until much later in the volume. Matters do not improve markedly in the first substantive chapter, which examines state constitutions adopted during the Revolutionary War and under the Articles of Confederation. In this chapter McAffee notes that state constitutions generally relied on the model of republican government and the self-restraint of the legislature to guarantee rights. He identifies the absence of provision for judicial review as a defining characteristic of the period. He analyzes the declarations of rights included in some early state constitutions as primarily declarative statements that simply make explicit natural rights that are assumed to be inherent and inalienable. Although his analysis clearly leans towards a strong natural law interpretation of the evolving American constitutional tradition, McAffee simply declines to state his case in any definitive manner.

The second substantive chapter concerns "constitutional practice," by which McAffee means judicial review under the Articles of Confederation. Focusing almost entirely on court cases and the reaction to judicial activism, McAffee identifies two dynamics: the degree to which doctrines of popular sovereignty dominated the period, and the extent to which judges were able to articulate principles of fundamental law which extended beyond both statute and state constitutions. As he reviews the cases and the political reaction to them, McAffee discovers "no consensus about judicial review." He does, however, defer frequently to Suzanna Sherry's (1987, 1992)

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reading of the period that holds undeclared fundamental rights augment written constitutions but are largely confined to issues relating to the internal structure of government. Once again, McAffee is unable to come to a definitive answer, beginning the last sentences of two different subsections of his "conclusion" with the word "if." The mixed historical record and the degree of controversy over the subject make caution understandable. Still, it is difficult to follow the progress of an argument that is so tentative.

The title of the third, and by far the strongest chapter, is "Decision at the Philadelphia Convention," which is deceptive. The chapter has little to do with the events at Independence Hall during the summer of 1787. Instead, it overwhelmingly concerns the debate over the framing and proper interpretation of the Ninth and Tenth Amendments. McAffee argues that, "the purpose of the Ninth Amendment is to preserve the federal structure against a unique threat posed by the enumeration of significant limits on federal power" (p. 84). That threat was that any enumeration of rights would result in the presumption that federal government had "general legislative powers subject only to the specific restrictions stated in the Constitution and its amendments," (p. 84). McAffee associates this view most significantly with James Iredell of North Carolina.

McAffee's larger argument requires that the Ninth Amendment be understood as a complement to the Tenth Amendment. He reads the Amendment as primarily a restriction on the powers granted to the federal government rather than an assertion of what would come to be known as "states' rights." Because he sees power as residing originally with the people, he concludes that it must be expressly delegated to the federal government to become legitimate. In this vein, he argues that the Necessary and Proper Clause was understood primarily as a limit on federal power according to norms already inherent within the original Constitution. With these provisions so understood, McAffee then concludes that the Ninth Amendment's real purpose was to secure "the rights reserved by the Constitution's enumerated powers scheme against the danger of an inference of extended national powers from the enumeration of specific clauses limited the exercise of federal powers, clarifying that such limiting clauses could well be cautionary provisions that did not qualify any power actually granted" (p. 101). This sentence is typical of much of McAffee's prose, which can be quite difficult to follow. However, the specific point is instructive. Any originalist reading of the Ninth Amendment needs to locate the first bulwark against the federal government's assaults on the rights of the people in the doctrine of limited and enumerated powers. Any reading of the Bill of Rights as setting the outer boundaries of federal power is far too weak as an antidote to governmental overreaching.

The final substantive chapter, on the debate over the need for a Bill of Rights during the Constitution's ratification, focuses on the particular problems that a written constitution poses for natural law based theories of fundamental rights. Again, although sometimes critical of it, McAffee's discussion is heavily dependent on Suzanna Sherry's work. His chief protagonists are Iredell, James Wilson, and George Mason. Most of the effort in this chapter is devoted to the provision of additional evidence for the conclusions reached in the previous chapter, and there is little attempt to move the argument forward. In his conclusion, McAffee restates

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both his interpretation of the Ninth Amendment, and in his last sentence, comes to the resolution that the Constitution was not adopted with the intent of "giving unrestrained power to the judiciary" (p. 173). Yet, his larger argument about the importance of understanding the Constitution as embodying a doctrine of limited and enumerated powers does provide significant ammunition for advocates of a certain variety of conservative judicial activism. The "activist" courts of the later part of the nineteenth century and continuing through the early part of the New Deal certainly relied on such doctrines of limited congressional power in their decisions. The difference, McAffee might well counter, is that modern forms of judicial activism that discover new fundamental rights are far less grounded in the historical understanding than were the decisions of the Four Horsemen and others.

McAffee's argument about the interpretation of the Ninth Amendment is the most persuasive part of the book. It is, unfortunately, the only portion of the book with a well-articulated conclusion. The remainder of the book spends the majority of its time serially examining different related interpretations of the Founders' views using both hands (on the one ... on the other...) at all times. An interpretation is explicated, analyzed, and appraised, and then it's on to the next. Synthetic moments are rare. McAffee never develops a distinctive authorial voice in the process, and he causes this reader to often wonder whether he simply had missed the point of the entire exercise and where any of it was going. Part of the problem is that McAffee has organized his material chronologically with little attempt to connect themes across the different chapters. This is further aggravated by McAffee's decision to break up his chapters into smaller sections, and even smaller subsections, some of which are only two or three paragraphs long. The effect is akin to reading an annotated outline with little narrative flow. This is unfortunate because McAffee's project, to provide a theory of the middle range, which sheds light on whether the Founders' constitution was primarily composed as one of enumerated powers or of enumerated rights, is a worthy one.

REFERENCES:

Sherry, Suzanna. 1987 "The Founders Unwritten Constitution." UNIVERSITY OF CHICAGO LAW REVIEW. 54: 1127-1177.

Sherry, Suzanna. 1992. "Natural Law in the States." UNIVERSITY OF CINCINNATI LAW REVIEW. 61: 171-222.


Copyright 2001 by the author, Daniel Levin.