ABSTRACT
Based upon the model of federalism inherent in Garcia, Congress could enact national standards of unenumerated rights through the exercise of its commerce powers, thereby trumping the various state standards with national standards, the Ninth and Tenth Amendments notwithstanding. Within the context of the American political tradition the people are sovereign, a sovereignty that is qualified by a scheme of republicanism, separation of powers, a system of federalism, and written constitutions. To reiterate, problematical for American federalism is the association of the Ninth Amendment with higher law doctrines and its incorporation into the Fourteenth Amendment, thereby making the Ninth Amendment's unfolding penumbra applicable not only to the national government but also to the states. Within the context of federalism, the Ninth Amendment acknowledges that there are, indeed, unenumerated rights, but the articulation and protection of those rights were originally tied to popular control of citizens in their respective states.
