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"I believe Madison would have never accepted your "minting new-found rights" formulation when he wrote the original of the Bill of Rights. "

You need to learn a little of what Madison had to say about the Bill of Rights.

When he introduced what became the Ninth Amendment:
""...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 urged 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 (the Ninth Amendment)."
I Annals of Congress 439 (Gales and Seaton ed. 1834).

Yet liberal judicial activists like you argue just the opposite- that the rights would be more secure if they were in the hands of the federal government!

Fortunately, no judge has ever succeeded to construe the Ninth to give him such power.

The one requirement to be a believer in a living constitution is a lack of knowledge of the Ninth Amendment.

Hello Mr. Smith

I am a little puzzled by your post. If I misunderstand you in an important way please re-state it for me.

When I object that Madison would not have accepted another poster's objections to "minting new-found rights" you suggest that I learn a little of what Madison had to say about his Bill of Rights. I have tried to. I have indeed read Madison's 1789 speech to the House of Representatives, which you excerpt, many times.

Further, it is precisely because Madison spends time on the question of the danger of enumerating some rights to be secured against governmental usurpation that others not enumerated might be disparaged, and because he takes the trouble to write what is now the 9th Amendment, that I rest my case about Madison and the supporters of the Bill of Rights having a far more expansive view of the peoples' rights than merely those listed in the Bill of Rights. There would not have been any newly-minted rights for these folks, they could hardly conceive of a liberty that was not theirs, and if strict construction meant they would have only the rights specifically enumerated against federal encroachment, they'd have had none of it. Your excerpt says so. They weren't going to ratify without the Bill.

To see what he really meant (read the speech) I would have quoted Madison a little differently:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of [federal] power, it would disparage those rights which were not placed in that enumeration..."

Here you have the clear and central refutation of the unhistorical misconception that our rights are no more than are mentioned specifically in the Constitution and Bill of Rights. If I could underline any point for my fellow discussants it is this one. If this is not a warning for the federal government (and by extension the states) to be extremely reluctant to curtail any liberty, what is it? If this is not an invitation for judges to look sanguinely on a citizen's assertion of governmental infringement of his rights, any right not infringing that of another, what is it?

Here we are assured we are free men in a free country and the government should mind its business not ours, and, legislatures, executives and judiciaries be damned if they tread these protected grounds.

You then say:

>Yet liberal judicial activists like you argue just the opposite- that the rights would be more secure if they were in the hands of the federal government!

No, not at all. I say the 9th Amendment tells the government to keep its hands off me not just for the listed rights but for any others I might assert that do not infringe the equal rights of others.

>The one requirement to be a believer in a living constitution is a lack of knowledge of the Ninth Amendment.

Here I entirely misunderstand you. I say, with Madison's whispered accord ;-), that the 9th Amendment makes clear that no branch of government is permitted to assume that I have only the rights enumerated in the Bill of Rights. How else can you reasonably construe the amendment and its introduction and passage if it does not mandate seeing the Constitutional guarantees of liberty as far broader than the few precious jewels written there? Further, the grant of powers to the federal government and by extension to the states, are highly constrained not only by the specifics of the Consitution, but by the protections of the Bill of Rights, through and including deliberately unenumerated rights.

Is this not the idea of a "living Constitution?" Could a proper judge do otherwise than to honor the 9th's warning not to stop with the abbreviated list of rights?