Posted on 05/20/2006 12:02:06 PM PDT by tpaine
Who's Afraid of Unenumerated Rights?
RANDY E. BARNETT
Boston Univ. School of Law Working Paper No. 06-02
--- Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment.
Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted, and what protection they do receive is subject to intense criticism. In this essay, I examine why some are afraid to enforce unenumerated rights.
While this reluctance seems most obviously to stem from the uncertainty of ascertaining the content of unenumerated rights, I contend that underlying this concern are more basic assumptions about legislative sovereignty and the proper role of judges.
I explain why a proper conception of constitutional legitimacy requires that unenumerated rights be protected somehow, that judicial protection is not as problematic as commonly thought once it is acknowledged that all liberty may be reasonably regulated (as opposed to prohibited), and that we need to ascertain the scope of unenumerated rights only to identify wrongful behavior that may be prohibited altogether because it invariably violates the rights of others.
-- Wrongful behavior may be criminalized/prohibited -- but only if it invariably violates the rights of others.
Constitutionally, all liberty may be reasonably regulated (as opposed to prohibited/criminalized).
However. we must ascertain the scope of unenumerated rights to identify wrongful behavior that may be prohibited altogether.
Prohibitions on behaviors that only potentially affect the rights of others are violations of due process of law.
Mr. Justice Harlan described it eloquently:
". . . [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . --
Mr. Barnett also wrote another excellent analysis of the 9th Amendment examining how it fits into the various types of originalist thought. It sadly is, even more than the 10th (and even by such Justices as Scalia), the most ignored Amendment.
Oops.....the title of his other analysis is "The Ninth Amendment: It Means What it Says". It is available for download here: http://www.bu.edu/law/faculty/papers/BarnettR082405abstract.html .
yer still around? this barnett guy is pretty interesting. i just got done reading this one:
Scalia's Infidelity: A Critique of Faint-Hearted Originalism
. He references Scalia's dismissive approach to the the 9th amendment:
another difficulty with Scalia’s normative defense of originalism: It would seem to justify judicial enforcement only of those passages of the Constitution that are sufficiently rule-like to constitute a determinate command that can simply be followed by a judge. The more general or abstract provisions of the Constitution are hardly rules that fit this description, so should they be ignored by judges? It turns out that, with respect to the Ninth Amendment, for example, this is precisely the view later adopted by Justice Scalia himself. In the case of Troxel v. Granville,16 he dismissed the unenumerated rights “retained by the people” to which the Ninth Amendment expressly refers as subject only to the protection of majorities in legislative bodies. But this puts him in an awkward position. According to his argument, justices must decide for themselves which clauses meet his standard of a rule of law and which do not, because only the former merit judicial protection. By this route, large portions of the Constitution become nonjusticiable by judicial fiat. For example, all unenumerated rights become judicially unenforceable
-h
That's because most Americans don't really care. Their more concerned about imposing their views on others than they are about having others' views imposed on them. That's the problem with majority rule: the majority always think they won't have that problem.
Never really left. - Surprisingly my tpaine name was reinstated a few months ago after a year in the penalty box.
this barnett guy is pretty interesting. i just got done reading this one: -- Scalia's Infidelity: A Critique of Faint-Hearted Originalism
. He references Scalia's dismissive approach to the the 9th amendment ---
Scalia is getting a lot of heat lately from ~all~ quarters, -- because of his contradictory views on individual liberties. -- I doubt seriously that the man would support 'incorporating' the 2nd.
That's useful information. I probably would have assumed it was gone for good. I've never had more than a few days in the box, but now I know, worst case, even a year later it's worth a looksee.
If you haven't read the Barnett critique of Scalia, it's worth a read. He uses a few too many words to make his points, and you're probably aware of them, but it's a decent outline of some perhaps not widely known aspects of Scalia's jurisprudence. Especially the idea that if something in the Constitution doesn't present a clear rule, he sort of punts on it. Hence, he views the 9th amendment basically as useless to a judge. Hence, it's left to the Congress. Hence, the inmates run the asylum.
Well put on 'majority rule' communitarianism. As you say, many here simply don't understand that they've bought into 'the new deal'..
A Communitarian Ethos
Roosevelt gave a speech at the People's Forum in Troy, NY in 1912.
There he declared that western Europeans and Americans had achieved victory in the struggle for "the liberty of the individual," and that the new agenda should be a "struggle for the liberty of the community."
The wrong ethos for a new age was, "every man does as he sees fit, even with a due regard to law and order." The new order should be, "march on with civilization in a way satisfactory to the well-being of the great majority of us."
In that speech Roosevelt outlined the philosophical base of what would eventually become the New Deal. He also forecast the rhetorical mode by which "community" could loom over individual liberty.
"If we call the method regulation, people hold up their hands in horror and say 'un-American,' or 'dangerous,'" Roosevelt pointed out. "But if we call the same identical process co-operation, these same old fogeys will cry out 'well done'.... cooperation is as good a word for the new theory as any other.
BUMP
ping
FR's management moves in mysterious ways..
If you haven't read the Barnett critique of Scalia, it's worth a read.
I've read most of his stuff, and posted quite a bit here at FR.
As you say, he's a bit too wordy, but his book on the "Presumption of Liberty" in our Constitution is well worth the effort
Silly Conservatives. Don't you know that Liberals OWN the Constitution? They'll let you have a copy of it and read it, but you're too stupid to understand that it only means what they say it means, not what the text actually says. You're just not nuanced enough to understand such an important document.
Far too many 'silly' conservatives are saying the same thing. --- Read this thread from 4 years ago for proof.
The Ninth Amendment
Address:http://www.freerepublic.com/focus/f-news/720861/posts?q=1&&page=151
The Fourteenth Amendment made a lot of changes, some startling and not at all obvious from the actual words.
Bump to those afraid..
Not really; - it simply reiterated that the US Constitution was our supreme law, -- "notwithstanding" anything in a State Constitution. [Art. VI]
some startling and not at all obvious from the actual words.
Examples?
The modern American corporation.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.