Were the rights retained by the people defined by positive law? This is the issue explored by Professor McAffee and various other scholars who dispute the history of the Ninth Amendment. Surveying the work of these other historians, Professor McAffee distinguishes between those who argue that the framers and ratifiers were "positivists" and those who attribute to the framers and ratifiers a so-called "natural-law" or "natural-rights" perspective-the latter being the view that the rights retained by the people included rights not delineated by the United States Constitution. McAffee rejects this latter point of view in favor of the positivist interpretation of the Ninth Amendment, and he thereby has done much to uphold the traditional history of the Bill of Rights.
Constitutional Law | Law
Philip A. Hamburger,
Natural Rights and Positive Law: A Comment on Professor McAffee's Paper,
S. Ill. U. L. J.
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