– The Court, without warrant from the Constitution’s text or history, has divided Americans’ liberties between those it deems “fundamental,” such as speech and association, and others, many pertaining to economic activity and the right to earn a living, that are inferior. Abridgements of the latter have been given less exacting judicial scrutiny. The Court calls this “rational basis” scrutiny; it should be called “conceivable basis” scrutiny. If a legislature asserts, or the Court can imagine, a rational basis for the abridgement, it stands. Do you think judges should decide which liberties to protect or neglect? Should courts examine evidence of whether economic regulations are related to public health and safety or merely reflect rent seeking by economic interests?
– The Ninth Amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Robert Bork said this is akin to an “inkblot” on the Constitution that judges should ignore. Do you agree? How can judges be faithful to this amendment? Was Madison correct that it should dispose us against a latitudinarian interpretation of Congress’s powers? Is the Ninth Amendment pertinent to, say, the right to earn a living free from unreasonable licensure requirements or other barriers to entry into an occupation?
– Other than a law that abridges a liberty enumerated in the Bill of Rights, are there limits to Congress’s power over interstate commerce?