When James Madison was a member of Congress in 1791 and charged with drafting the Bill of Rights, he made two grammatical demands. One was that the word “the” precede “freedom of speech” in the First Amendment, and the other was a command in the Ninth Amendment that the “rights retained by the people,” rights too numerous to enumerate, “shall not be disparaged” by the government. This principle -- that our rights preexisted the government -- would be played out over and over in litigation in...
