Posted on 12/29/2010 4:11:44 PM PST by Jacquerie
Ping for later, confusing read.
Prior to the Constitution, issues involving legal rights were generally a matter of evolved common law rather than statute. Part of the reason for writing a Constitution was to provide an explicit means of changing laws, rather than having the law evolve based upon the whims of judges. I see no reason to believe that the Founders wanted new rights to keep evolving based upon judicial whim; instead, they wanted changes to the Constitution to occur via the provided mechanism.
On a related note, one thing that has happened over the years is that the government has endeavored to infringe rights in such a way as to preclude effective remedy, and courts have gone along with it. Courts need to wake up to the facts that (1) the right of people to be free from unreasonable searches and seizures don't just mean they have the right to be free from some types of unreasonable searches and seizures; (2) the right of the people to be tried by a jury means the right to have a jury determine all factual matters relevant to their case, including in many instances, the question of whether a particular matter is relevant; (3) unconstitutional actions are illegitimate, and illegitimate actions form no part of any government agent's legitimate duties.
Please read the source article as your time allows. Barnett details a judicial approach to solve the problem Bork described at his Senate hearing.
When properly applied, as our Framers wrote the Constitution and evidenced in Congressional debate, the Ninth and the “necessary and proper” clauses limit government and promote our Natural Rights as stated in our Declaration.
The whole article seems a little long to digest in one sitting, but I suspect I would probably interpret the Ninth Amendment somewhat more narrowly than the author, especially in cases where the "rights" of one entity conflict with those of another. In something like the Kelo case, the argument should have been that while the "public use" part of the Fifth Amendment doesn't prohibit the government from taking property for the purpose of giving it to someone else(*), the right of people not to have their property taken for such purposes would have been considered by the Founders to be so obvious to any honest person as to not need enumeration.
(*) What it actually says is that if the purpose for which property is taken happens to be "public use", compensation must be paid; it says nothing for or against the the government taking property for other purposes.
As for "necessary and proper", I haven't read the parts of the article dealing with that, but I would aver that the government should have to prove the necessity and propriety of elastic-clause actions in individual cases, as a factual matter (i.e. one that a defendant could demand be assessed by a jury). A proper outcome for the Raich case could have been for the Court to remand the case to trial, with the proviso that the defendant be allowed to introduce evidence that his conduct was intended to exercise his rights under state law, and the federal government would have to show that the nature of the defendant's particular conduct would materially interfere with the federal government's authority to regulate interstate commerce, and that forbidding the defendant's particular action was a necessary and proper means of undertaking its regulatory function. To this, I would add an instruction for the jury that it regard skeptically any claim that more-intrusive measures are "necessary" in cases where the government could, but does not, attempt less-intrusive measures first.
To be sure, cases where the government is clearly overreaching its Constitutional powers shouldn't even reach a jury, but when cases do reach a jury, all matters related to "reasonableness", necessity", "propriety", etc. should be fair game for the defendant.
Incidentally, this ties in with the Fourth Amendment's prohibition of "unreasonable" searches and seizures. While evidence which is clearly obtained illegally should be excluded at the request of the defendant, juries should also be informed that they should not construe against the defendant any evidence which they find was obtained unreasonably. Judges generally allow evidence unless the way it was obtained is so clearly and patently unreasonable that no reasonable person could deem it "reasonable". A jury, by contrast, would be instructed to disregard evidence that they found was obtained unreasonably, even if the conduct was close enough to being reasonable that they can imagine people finding it legitimate.
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