On federalism, freedom, and the founders' view of retained rights: A reply to randy barnett

I want to thank Randy Barnett for commenting on my article, A TextualHistorical Theory of the Ninth Amendment. Professor Barnett's essays on the Ninth Amendment in the 1990s triggered the modern debate over the original meaning of the Ninth, and his recent book, Restoring the Lost Constitution, synthesizes his earlier work and presents a sophisticated theory of constitutional rights.1 I welcome his thoughts and I completely understand his critical stance regarding my work; if my conclusions are correct they significantly undermine some of Barnett's key assertions about the original meaning and modern application of the Ninth Amendment. In his current essay, I believe that Barnett has identified some conceptual issues that could benefit from some additional clarification. His individualist reading of the Ninth and Tenth Amendments, however, is at odds with the common understanding of popular sovereignty at the time of the Founding and is contradicted by key pieces of historical evidence. Most of all, Barnett's failure to address Madison's actual testimony about the federalist meaning of the Ninth and Tenth Amendments critically undermines his effort to put a libertarian spin on an expressly federalist historical record. Professor Barnett's response2 and this Reply present only a snapshot of the larger historical debate between Barnett and myself regarding the original meaning of the Ninth Amendment. A more detailed look at the original sources which constitute the subject of this debate can be found in two articles I originally published in the Texas Law Review and in a forthcoming article in