[musanon]

PatrickHenry wrote:

" -- To me, it seems very simple. The Constitution, by its terms, and by the oath required of all office holders (including judges) is the "supreme law of the land," and is unquestionably binding on the judiciary. The Constitution contains its own rules of construction, which are also binding on the judiciary:

1. The list of rights enumerated in the Constitution is not to be construed as a complete list.

2. The list of powers delegated to the federal government is a complete list.

In other words, it's not a matter of personal choice. All judges are bound by oath to use liberal construction with respect to our rights, and strict construction when it comes to the government's powers. Anyone appointed to the judiciary should readily agree with this, or he's unqualified to hold office

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I agree, it is just that simple. - With one addition to your numbered list:

1. The list of rights enumerated in the Constitution is not to be construed as a complete list.

2. The list of powers delegated to the federal government is a complete list.

3. The powers prohibited by it to the States is a complete list, a list that includes all Amendments.


As to the term "liberal construction", -- Author R. Barnett has, imo, a more definitive wording:

All judges are bound by oath to use liberal construction ["a presumption of liberty"] with respect to our rights, and strict construction when it comes to the government's powers. [At any level] .
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[PatrickHenry]

Your item number 3 is a good one. It doesn't quite flow from the Ninth and Tenth Amendments, which I regard as mandatory rules of construction, but I agree with it. Well, actually it can be derived from the Ninth.

I hadn't heard of Barnett before, but he seems to have a good understanding of the situation.