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The Bill Of Rights, Social Contract Theory, And The Rights “Retained” By The People, Thomas B. Mcaffee
The Bill Of Rights, Social Contract Theory, And The Rights “Retained” By The People, Thomas B. Mcaffee
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The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” There is no question that this Amendment was designed as a savings clause, to ensure that the specification of particular rights would not raise an inference that the Bill of Rights exhausted the rights which the people held as against the newly-created national government. But there is an ongoing debate as to nature of these additional rights retained by the people and as to the sort of claim they might support against the exercise …
Uncommon Law And The Bill Of Rights: The Woes Of Constitutionalizing State Common-Law Torts, Elaine W. Shoben
Uncommon Law And The Bill Of Rights: The Woes Of Constitutionalizing State Common-Law Torts, Elaine W. Shoben
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During the two-hundred-year history of the Bill of Rights, the Supreme Court occasionally has used those first ten Amendments to constitutionalize state common-law torts. In this essay, Professor Elaine Shoben argues that the Court would be well advised to forgo that practice. Pointing to the Court's experience in constitutionalizing defamation law under the First Amendment, Professor Shoben says when the Court meddles in state tort law, the result is a highly complex and very unsatisfactory body of law. On the Bicentennial of the Bill of Rights, this author recommends that if the Court feels compelled to reform a state common-law …