Interpreting the Constitution Contextually

What Is Ignored

Both conservative and liberal constitutionalism, in short, ignore essential principles of the Constitution, principles that are stated clearly and explicitly in the document itself. The conservatives' chief blind spot is the Ninth Amendment (see sidebar for this and other constitutional passages), which was intended by the Founders not only to protect unenumerated rights but also to ensure that rights provisions generally be interpreted as broadly as possible. Conservatives also tend to overlook, or to interpret too narrowly, the many provisions in the Constitution—particularly the Due Process clauses of the Fifth and Fourteenth Amendments—that explicitly protect property and liberty rights in all their aspects, including the so-called right to privacy and other rights of personal autonomy.

Left-liberals, on the other hand, are blind to the Ninth Amendment's companion provision in the Bill of Rights, the Tenth Amendment, which affirms a fundamental feature of the Constitution: that it creates a national government of limited, enumerated powers. By dismissing the Tenth Amendment as stating a mere truism, as the Supreme Court did in its 1941 decision in United States v. Darby, liberal constitutionalism not only ignores the importance of the Amendment (which Thomas Jefferson regarded as the foundation of the Constitution) but also tends to render meaningless the Framers' carefully crafted list of Congress's legislative powers in Article I of the Constitution. Liberal constitutionalism thus overlooks the mandate of the Tenth Amendment, which was meant not merely to protect federalism but also to ensure that the power-granting clauses of the Constitution be interpreted narrowly, in light of the document's enumerated-powers scheme.

Even in the aspects of their jurisprudence that are most faithful to the Constitution, conservatives and liberals fail to appreciate fully its key principles. Conservatives, although they are correct to criticize left-liberals' blindness to the Tenth Amendment, have their own blindness to the Amendment, which they tend to see as limited to the protection of federalism or, even more narrowly, to the protection of "states' rights." Not only is that concept misleading—only individuals truly have rights; states have powers—but it also misses the real significance of the Tenth Amendment. That Amendment should be regarded as a basic rule of interpretation. Yes, as conservatives say, it is intended to limit the scope of the national government's powers and to protect the legitimate powers of state governments—but it is also intended to protect the rights of individuals. Conservatives miss the latter fact because they ignore the last four words of the Tenth Amendment, which reserves powers not delegated to the national government either to the states "or to the people."

Left-liberals, on the other hand, while generally correct in their criticism of conservatives' unduly narrow view of individual rights, are themselves guilty of inconsistency and subjectivity in their regard for rights. A common criticism of liberal constitutionalism, and one that is entirely justified, regards its "double standard." Certain rights are given a preferential status—for example, the First Amendment's freedom of speech and the Fourteenth Amendment's right to "equal protection of the laws" (as applied to racially discriminatory acts of government). These are regarded as fundamental rights and as protected by a strict-scrutiny standard that requires a showing of "compelling" governmental needs to override them. Other rights—such as the property and economic-liberty rights of the Fifth and Fourteenth Amendments or the Second Amendment's right to firearms—are given lesser protection or are ignored altogether. Left-liberals do acknowledge an important implication of the Ninth Amendment—that courts should recognize the existence of unenumerated constitutional rights—but they are biased in favor of certain unenumerated rights, such as the so-called right to privacy. They reject other legitimate rights, such as those aspects of property rights and economic-liberty rights that courts in the early twentieth century protected under the rubric of "liberty of contract." By their selectivity, left-liberals fuel the conservatives' accusation that liberal judicial activism undermines the rule of law and replaces neutral, objective standards of constitutional interpretation with the subjective preferences of individual judges. As former attorney general Edwin Meese said, theirs is a "chameleon jurisprudence, changing color and form in each era."

When it comes to the mainstream debate over constitutional interpretation, therefore, modern Americans are faced with a catch-22: If they wish to avoid the dangers of liberal judicial activism, they must choose a conservative theory of strict construction, but under that theory they lose protection for certain kinds of rights. If they wish to avoid the dangers of crabbed conservatism, they must opt for the left-liberals' loose construction, but under that theory they lose meaningful limits on federal powers (as well as losing some other kinds of rights). Neither choice is acceptable to those who value individual liberty in all its aspects—economic freedoms as well as personal freedoms—and who value limited government.