I agree. But that is exactly what Randy is advocating: the judicial recognition of those rights a consequence of which is that no branch of government may infring upon those rights. The legislature must not pass a bill that infringes on an unenumerated right, the president must not sign into law a bill that infringes on an unenumerated right, and the judiciary must not enforce a law that infringes on an unenumerated right.
Texas Federalist wrote:
But that is exactly what Randy is advocating:
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You are posting to a couple of guys who refuse to even read Barnetts arguments.
The Rights Retained by The People
Address:http://www.randybarnett.com/rightsbypeople.html
From the article:
"The type of "judicial conservatism" that will eventually emerge in the third century of the Bill of Rights, however, is still very much in doubt. Will it be a majoritarian conservatism of judicial deference to majority will as expressed in legislation? Or will it be a more libertarian conservatism that views the courts as neutral magistrates empowered to protect the individual from the government?"
Madison's is the first "majoritarian conservatism" view: that there are rights that the court has to recognize.
Randy is advocating the second view: "libertarian conservatism", which lets the courts define what the rights are.
Hardwick V. shows the constitutional application of the Ninth to look for a right to recognize; Lawrence V. could be done under the Ninth in Randy's view- just define it as a right.
Lawrence includes the usual complaint of the living constitutionalist's that they can't use the Ninth as Randy wants, but must maneuver their opinion through by other means. Griswold includes the LC's complaint about not being able to use the Ninth too.
Yeah, they do terrible damage already without reversing the meaning of the Ninth, but what could they not do if they did?