Gene R. Nichol


In this article, Professor Gene R. Nichol argues for a constitutional right to self-governance that legitimizes the court's inquiry into the nature of fundamental personal rights. He locates this right in the ninth amendment, which affords protection to unlisted liberties. The clearest statement of the American commitment to selfgovernance, he argues, is found in Thomas Jefferson's Declaration of Independence, and in the philosophy of Jeffersonian individualism. Drawing on the writing of Jefferson and Lincoln, Professor Nichol asserts that our society has committed itself to "the progressive unfolding of individual sovereignty." Critics of the United States Supreme Court's decisions that give constitutional protection to personal privacy interests have never suffered from a lack of ammunition. The Court has failed to locate unambiguously the textual source of rights identified in cases such as Griswold v. Connecticut and Roe v. Wade. Nor has it been able to construct a general theory that might explain why some rights have been found fundamental while others have not. The result has been uncertainty about future decisions, and protests that the Court's actions in this area are an illegitimate usurpation of power. Professor Nichol argues that only by recognizing and explicitly incorporating our societal dedication to self-governance into constitutional discourse can a principled jurisprudence that mediates between personal autonomy and state interests be constructed.

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1985 Wisconsin Law Review 1305-1357