Replies

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?

Further, it is precisely because Madison spends time on the question of the danger of enumerating some rights to be secured against [Federal government] usurpation that others not enumerated might be disparaged by the [Federal government], 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 [vis a vis the Federal government] than merely those listed in the Bill of Rights.

I think pointing out how grossly you are misinterpreting Madison's remarks is the best help I can give you to understanding my point.

Also, the Ninth refers not just to the Bill of Rights but to all the Constitution. This was because rights, Habeas corpus etc, had been secured in the body of the Constitution and the anti-federalists rightly pointed out that the listing of those few rights had already negated the Federalist's argument that no Bill of Rights was needed!

Any attempt to standardize the rights recognized by the various states would have doomed the Constitution.
Could the blue laws of Massachusetts be forced by the feds upon Virginia- or denied by the feds to the people of Massachusetts?
According to the Federalists the feds did not have the power to do so.
But, could they do so by construction of the powers they did have?
The Ninth puts a limit on that construction. Without the Ninth there is only the political influences upon the legislature [and nowadays the court LOL!] to prevent it.

BTW: Don't you find it at all ironic (even Orwellian) that you are arguing that the Ninth authorizes the federal government to take these rights into their hands?