When introducing the Bill of Rights in Congress, James Madison explained that judges would "consider themselves in a peculiar manner the guardians" of those enumerated rights. This famous passage, often treated as authoritative, is conventionally understood to endorse the judicial enforceability of enumerated rights and deny the judicial enforceability of unenumerated rights. Enumeration, in other words, is considered as both a necessary and a sufficient condition for the judicial enforcement of rights against contrary legislation. This Essay disputes each of these orthodox views. Instead, it argues, Madison was commenting on judicial psychology and judicial politics, not judicial duty. Enumeration, in short, would facilitate the enforcement of rights, even if judges were already legally obliged to uphold them. Moreover this Essay argues, both Madison's proposed bill of rights and his speech in support were deliberately noncommittal about the legal significance of enumeration. Addressing an audience that had conflicting views on that issue, he drafted and defended the Bill of Rights to obtain support from all sides. Consequently, neither the Bill of Rights nor Madison's advocacy reveal whether legally speaking, enumeration is a necessary or sufficient condition for the judicial enforcement of rights against contrary legislation.
Jud Campbell, Judicial Review and the Enumeration of Rights, 15 Geo. J. L. & Pub. Pol'y 568 (2017).