Posted on 06/07/2004 2:10:58 PM PDT by tpaine
Bump for later reading.
I took Randy Barnett's Constitutional Law course at Boston University School of Law a few years back. I can safely say that no one experience in my life has had a greater effect on my political philosophy.
Wow, that's an endorsement! Bump for later.
Make note, tpaine.
bump for later reading
Barnett does seem to have his head on straight, doesn't he?
Thanks but no thanks.
Make note, tpaine.
-rp-
Note the bold qualifier, paulsen..
I have no argument with the concept that "most" of the BOR's framers were ignoring the Constitutions supremacy clause, -- just as their political adversaries intended.
Lots of hanky panky compromise was involved in getting our BOR's ratified, of that there is no doubt.
But YOUR concept, paulsen, -- that States can prohibit firearms, is repugnant to the very principles of our Constitution. -- NONE of the founders would have backed that 'interpretation'.
Yes. He's also an extremely personable guy.
You too. (See my reply #10.)
The ninth amendment was a constraint on federal powers.
Our enumerated/um-enumerated rights are inalienable, and Constitutional principle protects them from violation by ANY level of government. See Art. VI.
Now you want to turn it on its head and use it to assign even more power to an unelected judiciary? Thanks but no thanks.
Our judiciary is appointed & controlled by the other branches of government. Which 'we' control by ballot box or bullet box. -- Take your pick.
-- You seem to be picking the side who favor State gun prohibitions. Why is that?
James Madison: ''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.
This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [Ninth Amendment].''
But Randy concludes that the Ninth means that rights should be "assigned into the hands of the General Government"'s courts!
He is amusing.
Though no court has ever had the temerity to do it yet, I suppose the living constitutionalists will one day win their ultimate victory and gain control of our unenumerated rights in the federal courts.
Actually, the judiciary would have less power under Barnett's theory because original intent can be used to identify "retained rights" under the Ninth Amendment. Under post-New Deal Constitutional interpretation, there is no constraint to the rights that the judiciary now creates under the guise of due process or equal protection.
Also, democratically enacted laws are as much a facilitator of federal power as the judiciary, if not more. The entire welfare state was created from majoritariamism, but would be unconstitutional under Barnett's theory.
''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.
Okay. Everyone is born with natural rights. When a government is formed, you surrender some of those rights in exchange for the protection of others. The rights rights that are not surrendered to the government are those that are "retained". Rights that were "assigned to the government" are those rights that were given up to the government in exchange for the security of living in a society and could be infringed. You are thinking of the term "assigned into the hands of the General Government" as meaning it is the Government's duty to define and protect those rights. It does not mean that at all.
Great site Sandy.. Thanks..
Just took a brief look, but I'll read more tonight..
What are you talking about? Court's do it every day. They just base it on the 5th and 14th Amendments rather than the 9th. Barnett's approach at least forces the Court's to look to original intent in guiding the identification of these rights.
"You are thinking of the term "assigned into the hands of the General Government" as meaning it is the Government's duty to define and protect those rights. It does not mean that at all. "
If Randy had his way it would, exactly!
The precise implication of this article is that federal judges should define and protect our unenumerated rights (Libertarianly, of course)- how much more could they be in the government's hands?
What more power over our unenumerated rights could the government possibly have than to define for itself what they are?
Madison's intent with the Ninth was that the courts would instead have to recognize unenumerated rights which were retained by the people.
They do not do it under the Ninth. They never have.
Having the power to define rights, and what is and isn't a right, under the Ninth is their Holy Grail.
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