Posted on 12/29/2010 4:11:44 PM PST by Jacquerie
On the first day of his Supreme Court confirmation testimony, Robert Bork described teaching a constitutional theory seminar at Yale Law School in which he tried to justify what he called "a general right of freedom"1 from the various provisions of the Constitution. He recalled .hat Alexander Bickel, with whom he taught the course, "fought me every step of the way; said it was not possible. At the end of six or seven years, I decided he was right." 2 The next day, Bork testified:
I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says "Congress shall make no" and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.3
In taking these two positions, former Judge Bork was, unfortunately, well within the mainstream of constitutional thought. For two hundred years the Supreme Court of the United States has never seriously considered a general constitutional right to liberty; at the same time it has, with few exceptions, treated the Ninth Amendment as though it were an inkblot. I suggest the failure to find a "general right of freedom" in the Constitution is connected to a general inability to understand the Ninth Amendment's declaration that: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Barnett’s analysis shows that the courts begin with the assumption that federal laws are constitutional. This places the burden on plaintiffs to prove unconstitutionality. Given 70+ years of awful case law, it is a high hurdle.
By the Ninth Amendment’s presumption of liberty, Barnett shows how the burden should be on the government to prove that law is “necessary and proper” to execute an enumerated power that does not infringe on our natural or enumerated rights.
looks interesting
will read in greater detail later
thanks
And the latter would be...?
Speedy trial, no ex-post facto laws . . .
The 9th Amendment cuts both ways. Many libertarians think that it is means to limit the people’s right to representation on issues but it is not. The 9th Amendment upholds that rights are for the people (majority) to create law that upholds freedom for all equally and not a limitation that creates anarchy.
The 9th Amendment cuts both ways. Many libertarians think that it is means to limit the people’s right to representation on issues but it is not. The 9th Amendment upholds that rights are for the people (majority) to create law that upholds freedom for all equally and not a limitation that creates anarchy.
The Constitution establishes post offices. Is government monopoly of 1st Class Mail “necessary and proper?”
Maybe we were blessed at not having Bork on the SCOTUS. I mean he's convinced that there's no general right to liberty? Yikes!
Some more background. Check out his thoughts on the 14th:
http://en.wikipedia.org/wiki/Randy_Barnett
Off the top of my head, I can think of two important unalienable rights that would fall under the Ninth Amendment’s rubric: the right of free political association, and parental rights. Neither is a right that is enumerated in our Constitution, but I for one won’t willingly give up either one.
My understanding is that the Ninth Amendment rose out of the fear among many of the framers, including Madison, that if you wrote a Bill of Rights and began enumerating rights that someone would then assume that just because a right was not enumerated it does not exist.
When they then lost the political argument over whether or not to include a Bill of Rights, the Ninth Amendment was their compromise.
Of course, it is routinely ignored.
I often encounter a particular case of this is various debates over the protection of innocent human life. My detractors claim, falsely, that the Constitution doesn’t explicitly protect the child in the womb from being aborted. So I have to tell them that even if they were correct, which they aren’t - the Fifth and the Fourteenth Amendments explicitly protect every PERSON - the Ninth Amendment explicitly forbids their position from being taken constitutionally.
Or do you mean was the Constitution written with equal representation for all?
It would seem to mean that there is no infringement on any individual rights by the government handling mail as long as it has been made so with the full consent of the governed.
If someone objects and wants even more limited government then I feel that person is leaning towards anarchy and is actually looking to violate my rights by denying me an equal right to representation.
Great post, by the way. While I may not agree with this gentleman on a lot of his libertarian views, the piece is thought-provoking nonetheless.
Regarding liberty, Bork reflected the mainstream of judicial thought at the time. Maybe one or two current justices haven't mentally cut out the ninth amendment.
If five of our justices had a clue regarding our Natural Rights, Obamacare wouldn't have a chance, for no Obamaton can show that it is necessary and proper to implement an enumerated power.
Yes, I understand that he supported Lawrence v. Texas. Sorry, there is no natural right to homosexual sex or any other perversion.
But, as you say, I appreciate that he is doing what he can to resurrect the 9th Amendment. A presumption of liberty is a good place to start when litigating Obamacare.
Excellent comments.
Our Framers were correct in their fear that if some rights were enumerated, others would be excluded.
Thanks for the ping!
Only wealthy citizens can challenge government.
Hell, even if they ARE enumerated they can be excluded: look at the 2nd Amendment.
According to a plain-text reading of the Second Amendment the ONLY possible gun regulation would be that of ensuring a “regular” militia; something along the lines of “Every Citizen of able body must possess a .45 ACP semi-automatic handgun AND/OR a .30-06 rifle.” or something similar thereunto.
Thanks for ping.
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