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Bioethics 33
(1833) that the Bill of Rights only applied to the national
government and not the states. That became a bone of contention
in the years leading up to the Civil War and set the
stage for the 14th Amendment, which was intended by its
authors to reverse Barron by extending federal protection
of the “Privileges or Immunities” of citizens against infringement
by their state governments.
Second, scrutiny of the debates makes it clear that the
Bill of Rights was not intended to change anything. It was
generally agreed that it was not strictly necessary to add
those rights because they were already protected. They
were added only out of a sense of caution. But that implied
that those rights were protected both before and after they
were enumerated. It further suggested that unenumerated
rights deserved the same protection as had been accorded
enumerated rights, an inference made explicit in the 9th
Amendment. The Amendment reads, “The enumeration in
the Constitution of certain rights shall not be construed to
deny or disparage others retained by the people.”
Somewhat surprisingly, none of the enumerated rights
received much, if any, attention in the early years of the
United States. Indeed, the first time that a federal statute
was held to be an unconstitutional violation of the 1st
Amendment was in the 1965 case of Lamont v. Postmaster
General. The most likely reason for the early neglect of the
Bill of Rights by the courts was that, in the early years of
the Republic, as was already noted, the Bill of Rights did
not apply to state laws, and the national government largely
kept within its enumerated powers. Even where Congress
or the president did claim broader implied powers, those
powers did not usually restrict the liberties of the people.
The early history strongly suggests that a Bill of Rights is
of greatest functional importance when governmental powers
are not properly limited.
This question thus arises: Who was more prescient, the
Federalists, who declared a Bill of Rights to be unnecessary
and dangerous, or the Anti-Federalists, who insisted on having
one? Clearly both were right. The Federalists’ warning
that a Bill of Rights would be dangerous has largely come
true. With few exceptions, such as the right of privacy or the
right to travel, only the enumerated rights have received any
protection. Notwithstanding the 9th Amendment, in practice,
almost every right that was not enumerated has been
considered to have been surrendered to the general government.
However, the Anti-Federalists accurately foresaw that
the scheme of enumerated powers was inadequate to protect the
rights retained by the people. Thanks to their insistence, the
Bill of Rights has served as an essential, although incomplete,
safeguard to limit the powers of government.
REB
See also Constitution, U.S.; Declaration of the Rights of Man and of
the Citizen; Federalists Versus Anti-Federalists; Jefferson,
Thomas; Madison, James; Magna Carta
Further Readings
Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction.
New Haven, CT: Yale University Press, 1998.
Barnett, Randy E., ed. The Rights Retained by the People: The
History and Meaning of the Ninth Amendment. 2 vols. Fairfax,
VA: George Mason University Press, 1989–1993.
Bodenhamer, David J., and James W. Ely, Jr., eds. The Bill of Rights
in Modern America: After 200 Years. Bloomington: Indiana
University Press, 1993.
Cogan, Neil, ed. The Complete Bill of Rights. New York: Oxford
University Press, 1997.
Hickok, Eugene E., Jr., ed. The Bill of Rights and Current
Understanding. Charlottesville: University Press of Virginia, 1991.
Veit, Helen E., Kenneth R. Bowling, and Chalene Bangs Bickford,
eds. Creating the Bill of Rights: The Documentary Record from
the First Federal Congress. Baltimore: Johns Hopkins
University Press, 1991.
BIOETHICS
There can be no libertarian bioethics without libertarian
ethics. Once a libertarian approach to ethics is identified,
resolving questions in bioethics involves little more than
applying those principles to the sphere of human interaction
specific to medicine and scientific innovation. For this reason,
we must first touch on libertarianism as it relates to
general theories of ethics before moving on to ethical theory
with specific reference to bioethical questions.
Like the pursuit of liberty, bioethical questions have
existed since the dawn of civilization, but the term bioethics
and its emergence as an academic and clinical discipline first
occurred in the 1970s. Then as now, some of the more theoretical
topics include defining illness, patients’ rights, medical
professional integrity, human dignity, competency,
research ethics, self-ownership, medical resource allocation,
and social responsibility.
All ethical theories, of course, are intended to provide
practical guidance for human interaction. A complete theory
of ethics must do two things. First, it must provide a
framework of rules intended to ensure peaceable interaction
within a community; this framing is the purview of theories
of justice. Second, it must provide guidance for individuals
who wish to become morally better people; this guidance is
the purview of theories of personal morality. Libertarian
theories of justice are well documented and do not need further
explanation. Suffice it to say that, unlike many theories
of justice, libertarian theories are procedural rather than
prescriptive in nature. The libertarian principle of equal
freedom is illustrative: “Everyone has the right to live their
life as they choose as long as in so doing they do not violate
another’s equal right to do the same.”
Unfortunately, little attention has been given to libertarian
theories of personal morality, particularly not from the