Legislating Beyond an Educated Guess: The Growing Consensus Toward a Right to Education

Abstract

In Retained by the People, Daniel A. Farber argues for a robust renaissance of Ninth Amendment jurisprudence in analyses of fundamental rights, because this amendment and its history most clearly encompass the Framers’ belief that certain rights are retained by the people. Farber argues that fundamental rights are at their most vulnerable when rooted in the inherently procedural structure of the Due Process Clause of the Fourteenth Amendment. This book review criticizes the factors Farber uses to determine whether a given right is fundamental and argues that legislation must be the most important factor in discerning fundamental rights that are so-retained, particularly when the Court has explicitly denied the existence of a disputed right. When applied to the right to education, the overwhelmingly bipartisan passage of the No Child Left Behind Act indicates that this right is indeed retained by the people.