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This chapter examines the revival of the presumption of constitutionality and its almost immediate qualification in the form of Footnote Four, which it argues is inconsistent with the Ninth Amendment. The era in which the Supreme Court attempted to scrutinize the necessity and propriety of state and federal restrictions on liberty came to a close as the perceived legitimacy of legislative activism continued to grow. The doctrinal vehicle used by the New Deal Court to overturn the Progressive Era precedents was the adoption of a presumption of constitutionality. The chapter first provides an overview of Footnote Four before discussing the Ninth Amendment, which mandates that unenumerated rights be treated the same as those that are listed. It shows that Footnote Four runs afoul of the text of the Constitution, and more specifically the Ninth Amendment.

This chapter examines how a Presumption of Liberty can protect the unenumerable rights retained by the people by shifting the background interpretive presumption of constitutionality whenever legislation restricts the liberties of the people. One approach that judges may take toward legislation restricting the retained liberties of the people is to protect all the rights retained by the people equally whether enumerated or unenumerated. The question that arises is how one would identify the unenumerated rights retained by the people, or how to define the “substantive sphere of liberty” that is protected by the Privileges or Immunities Clause of the Fourteenth Amendment. Because ignoring all unenumerated rights violates the mandate of the Ninth Amendment, the chapter considers two alternatives: using originalism to identify specific unenumerated rights and the Presumption of Liberty.

This chapter examines whether the Necessary and Proper Clause of the Constitution precludes or invites the exercise of judicial review of a federal law to see if it lies within the powers of Congress to enact. Evaluating whether a federal law is constitutional must begin with whether Congress has acted within the powers it is granted in the Constitution. The chapter first provides an overview of the origins of the Necessary and Proper Clause before discussing the meaning of the term “proper.” It then examines the merits of applying the presumption of constitutionality to federal laws. In particular, it considers the original meaning of the constitutional provision giving Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”