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Title: The Rights Retained by The People [and the presumption of liberty]
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Published: Jul 2, 2015
Author: Randy Barnett
Post Date: 2015-07-02 14:56:18 by tpaine
Keywords: None
Views: 1534
Comments: 33
The Rights Retained by The People [and the presumption of liberty] | Randy Barnett Originally psted on 6/7/2004, 2:10:58 PM by tpaine at Freerepublic The Rights Retained by the People: The History and Meaning of the Ninth Amendment Volume 2 Edited by Randy E. Barnett I. The Origins of The Ninth Amendment II. Why the Rights Retained by the People Are Unenumerable III. Implementing the Ninth Amendment IV. Replying to the Ninth Amendment Skeptics V. Conclusion: The Equal Protection of Liberties and the Future of the Ninth Amendment In this Introduction, I explain how the ninth amendment's protection of unenumerated rights "retained by the people" can be implemented in a practical fashion that is consistent with the views of its author, James Madison. Although additional work needs to be done on this proposal, enough support for it currently exists to render it attractive to those who value constitutionally limited government. I then respond to a number of ninth amendment skeptics who have sharply criticized the idea of implementing the ninth amendment. Any understanding of how the ninth amendment can work harmoniously with the rest of the Constitution, however, requires a brief examination of the origins of this intriguing and pregnant passage. I. The Origins of the Ninth Amendment The origins of the ninth amendment can be traced to the debate surrounding the ratification of the Constitution. The Antifederalists, who opposed ratification, concentrated much of their attack on the absence of a bill of rights. Although many Antifederalists were probably more concerned with defeating the Constitution than with obtaining a bill of rights, they repeatedly pressed this charge because it struck a responsive cord with the people. The Federalists who supported ratification, such as Alexander Hamilton and James Wilson, gave two answers to this complaint. First, they said that a bill of rights was unnecessary. Because the federal government was one of enumerated and limited powers, it would have no power to violate the rights of the people. "Why, for instance," asked Hamilton, "should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?" Second, they argued that a bill of rights would be dangerous. Enumerating any rights might suggest to later interpreters of the Constitution that the rights not specified had been surrendered. An enumeration of rights could thereby lead to an unwarranted expansion of federal power and a corresponding erosion of individual rights. Neither argument against a bill of rights carried the day. III. Implementing the Ninth Amendment A. The Presumption of Liberty Implementing the ninth amendment challenges us to protect unen- umerated rights without determining a final list of such rights and without lending credence to illegitimate claims of right. This challenge has proved too much for most judges and constitutional scholars. Even for those who have the will to implement the ninth amendment, there seems to be no practical way. But there is. As long as they do not violate the rights of others (as defined by the common law of property, contract and tort), persons can be presumed to be "immune" from interference by government. Such a presumption means that citizens may challenge any government action that restricts their otherwise rightful conduct, and the burden is on the government to show that its action is within its proper powers or scope. At the national level, the government would bear the burden of showing that its acts were both "necessary and proper" to accomplish an enumerated function, rather than, as now, forcing the citizen to prove why it is he or she should be left alone. At the state level, the burden would fall upon state government to show that legislation infringing the liberty of its citizens was a necessary exercise of its "police power"—that is, the state's power to protect the rights of its citizens. Any society such as ours that purports to be based on a theory of limited government already assumes that legislation must be a proper exercise of government power. The presumption of liberty simply requires that when legislation or executive actions encroach upon the liberties of the people, they may be challenged on the grounds that they lack the requisite justification. And a neutral magistrate must decide the dispute. As Madison observed in The Federalist No. 10: No man is allowed to be the judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay, with great reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? .... Justice ought to hold the balance between them. When legislation encroaches upon the liberties of the people, only review by an impartial judiciary can ensure that the rights of citizens are protected and that justice holds the balance between the legislature or executive and the people. Lest anyone think this point is obvious let me hasten to note that today the presumption used by the Supreme Court is precisely the reverse. According to what the Court calls the "presumption of constitutionality," legislation will be upheld if any "rational basis" for its passage can be imagined, unless it violates a "fundamental" right ---- and liberty has not been deemed by the Court to be a fundamental right. V. Conclusion: The Equal Protection of Liberties and the Future of the Ninth Amendment What is the future of the ninth amendment? In law, as in most areas of life, betting that the future is going to be pretty much like the past is usually the safest wager. If this turns out to be true, then the ninth amendment, which has been so tragically neglected by the Supreme Court over the past two centuries, is doomed to remain in a state of desuetude. But while betting against change may be the most conservative gamble, it is often a losing one. The past twenty years has witnessed a trend in the direction of a revived ninth amendment. In particular, a renewed interest in the views of the framers of the Constitution and of the Civil War amendments has caused those who favor an expansive judicial protection of fundamental rights to focus attention on the original intent of the ninth amendment. Moreover, the framers' concept of natural rights is no longer in complete disrepute. If the Senate confirmation hearings of Judge Robert Bork to the Supreme Court of the United States was a watershed development in the legitimation of the ninth amendment, the confirmation hearings of Justice Clarence Thomas may prove to have a similar effect on the legitimacy of natural rights. History may well mark the turning point for popular acceptance of natural rights theory in the United States to be Senate Judiciary Committee Chairman Joseph Biden's opening statement during the Thomas confirmation hearings in which he openly embraced natural rights and stated that the issue for him was which version of natural rights the nominee favored. With the addition of Justice Scalia, Kennedy, Souter, and Thomas to the Supreme Court and the elevation of William Rehnquist to Chief Justice, "conservatives" appear now to be in firm control of the Court. The type of "judicial conservatism" that will eventually emerge in the third century of the Bill of Rights, however, is still very much in doubt. Will it be a majoritarian conservatism of judicial deference to majority will as expressed in legislation? Or will it be a more libertarian conservatism that views the courts as neutral magistrates empowered to protect the individual from the government? 153 Which of these conservatisms comes eventually to prevail will depend, perhaps in principal part, upon whether a majority of the Court can be persuaded to take James Madison's ninth amendment and its pivotal role in constitutional interpretation to heart. At the moment, it appears that a justices with a more libertarian brand of conservatism 154 —and a respect for the ninth amendment 155— have the upper hand. Which judicial philosophy prevails will also depend upon whether proponents of the ninth amendment will take a more principled stance towards so-called fundamental liberties. The liberties each person holds fundamental are imperiled when advocates of some liberties they hold dear are more than willing to deny or disparage the liberties thought fundamental by others. For example, many of those favoring a fundamental right of privacy that includes a woman's right to chose to terminate a pregnancy offer no support to and indeed would actively oppose those who favor a fundamental "right to choose" to engage in a lawful occupation—such as driving a taxi cab—free from protectionist economic regulations. And few seem at all concerned with the fundamental "right to choose" whether or not to own a gun or to alter one's mental state by means of substances as alcohol, nicotine, peyote, or heroin. According to this discriminatory methodology, if some choices are deemed fundamental, other rights-respecting choices are vilified and ridiculed. I am not suggesting that some exercises of liberty are not in fact more important than others. However, by picking and choosing among all the unenumerable liberties of the people to determine which choices are fundamental and which are not, those who would limit judicial protection to liberties deemed fundamental are putting courts in the difficult position of establishing a hierarchy of liberties. This contributes to the longstanding fear that any revival of the ninth amendment would place courts in the role of a "super-legislature" usurping the functions of other branches. When interpreted as justifying a presumption of liberty, however, I think this fear of the ninth amendment is unfounded precisely because such a presumption provides a principled defense of all liberties of the people and removes the courts from having to decide which liberty is truly fundamental and which is not. Adopting the presumption of liberty would enable us to acknowledge the ninth amendment's unique constitutional function by resisting legislative or executive usurpation of the unenumerated rights "retained by the people" while, at the same time, avoiding unfettered judicial discretion. The presumption of liberty would permit us finally to remove the ink blot from the ninth amendment. (Excerpt) Read more at http://randybarnett.com ...
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#1. To: All, robertpaulsen (#0)
Here's a link to the original post at FR.. Note how robertpaulsen finally gave up trying to convince most of the participants on the thread of his communitarian theorists about our Constitution...
If the Senate confirmation hearings of Judge Robert Bork to the Supreme Court of the United States was a watershed development in the legitimation of the ninth amendment, the confirmation hearings of Justice Clarence Thomas may prove to have a similar effect on the legitimacy of natural rights. History may well mark the turning point for popular acceptance of natural rights theory in the United States to be Senate Judiciary Committee Chairman Joseph Biden's opening statement during the Thomas confirmation hearings in which he openly embraced natural rights and stated that the issue for him was which version of natural rights the nominee favored. With the addition of Justice Scalia, Kennedy, Souter, and Thomas to the Supreme Court and the elevation of William Rehnquist to Chief Justice, "conservatives" appear now to be in firm control of the Court. The type of "judicial conservatism" that will eventually emerge in the third century of the Bill of Rights, however, is still very much in doubt. Will it be a majoritarian conservatism of judicial deference to majority will as expressed in legislation? Wow. Biden....BIDEN?? Was it the following year (2005) in which he received his baboon-brain transplant? This excerpt you've posted from way back in 2004, paine, makes me wanna cry for several reasons. "Conservatives" -- in the mind of the author -- gave an appearance of being "in firm control"?? Souter. Considered part of a "conservative court"?? HUH?? In barely 10 years the SCOTUS has become a rogue branch of the judiciary, its liberal majority embracing ONLY un-natural "rights." The author and date (6/7/2004) marked NO such "turning point" in history other than mere wishful thinking of assuming a return to the original constitutional, conservative intent of the Founders. Biden -- like Gore and so many other Dems and RINOs -- changed their respective minds on key issues, and sold their souls to the devil. In less than 10 years an insane criminal cabal has celebrated the un-natural, the il-legal, and partisan hackery. In other words, SCOTUS is a dysfunctional Humpty Dumpty.
Kennedy and Souter did not quite work out that way. The article, or book extract, appears to originate around 1989. https://en.wikipedia.org/wiki/David_Souter
Hey man, shit happens... But if we can get by without a Ginsburg resignation, maybe the next SCOTUS nominee will be another Scalia/Thomas type and we can regain control. In the meantime, I predict a new era where a lot more people and politicians ignore SCOTUS opinions, and institute legal challenges to their 'rulings'...
Yeah. Just as some desperate guy said, hugging the top of a tree as the Ark floated by.... But if we can get by without a Ginsburg resignation, maybe the next SCOTUS nominee will be another Scalia/Thomas type and we can regain control. Come on, Paine! Why would an already corrupt GOP leadership nominate a conservative justice -- never mind the Dems greenlighting one. Look to another non-white lesbo -- this one probably an Asian Buddhist. Oh -- a transvestite AND so-called "Republican." Because all that'll be important to the reptilian GOP leadership will be the perception of "tolerance." Yes, even as they stick their (our) neck in the noose. Anyway...both Roberts and Kennedy are Statist-Dem/NWO operatives, who probably flipped a coin to see who would stick it to conservatives-constitutionalists on the respective 0-Care and the Homo-marriage case. In the meantime, I predict a new era where a lot more people and politicians ignore SCOTUS opinions, and institute legal challenges to their 'rulings'... Perhaps the case. But ignoring or rejecting standing SCOTUS decisions (as absurd as they are) will selectively get ONLY the conservative citizenry arrested, their livelihoods ruined, and the "equal justice" touted in the 14th Amendment demonstrated to be an absolute charade. Moreover, the notion that SCOTUS no longer operates objectively and from within the Founders original intent will have essentially destroyed the second of three "Checks & Balances" (SCOTUS and the Presidency.) Congress -- supposedly the branch of government endowed with the authority to create laws has been neutered." I hate to rain on your partly sunny day, but our last days on this earth will be witness to a Republic that shall see one stormy day after another. The current SCOTUS:
I hope the next Republican President sits down with Justice Roberts and asks for his resignation. And I hope Roberts is smart enough to preserve whatever legacy he has by avoiding an ugly impeachment process. That will set the tone for the term. No more liberal games. The adults are in charge.
That is fine and dandy. But we must agree. These candidates are poison. If they get the nomination we vote third party. Rubio, Bush, Christie, Perry, Kasich, and more that slip my mind at the moment.
Scott Walker was, is, and will be my choice. He will announce July 13th.
I'm suspect of Walker. But I surely haven't ruled him out. Have you ruled any Republican candidates out? You know you wont vote for them even if they get the nomination.
You think Jebby would do that? I think he'd hang a HUGE medal...from Roberts' bare right nipple. Roberts is a flaming disgrace. As is Kennedy. Naaah. We won't see a Pubbie Prez ever again if they don't pull it off in 2016. And I hope Roberts is smart enough to preserve whatever legacy he has by avoiding an ugly impeachment process. If 0blabla can't be impeached after committing a thousand counts of treason, what chance is there of Roberts (or IMO Kennedy) facing any music? Heck -- both Roberts and Kennedy may even be called to the WH for their medals before (IF) 0blabla leaves the White Hut. That will set the tone for the term. No more liberal games. The adults are in charge. With Boehner and McConnell still breathing, NO adult has been in charge within the GOP since...1988. Do the math.
No. Not this time. Anyone would be preferable to Hillary.
Wow. You would vote for Chris Christie. That aint right in the head.
I bet the President could get the House to impeach Roberts after a Republican Presidential victory if he asked for one. Roberts clearly legislated in his Obamacare decision. Convicting in the Senate would be dicey. But that's the point. Does Roberts want to go through this when he could simply resign with dignity and a legacy?
What can he do with a conservative Congress? Nothing. But Congress can do a lot with a Republican President, even a RINO. I'm sweating two more years of Obama. The thought of Hillary for four years after that is ... unthinkable.
Bush and Christy are pretty much the same as Obama. Foreign policy is identical treason. Domestic issues christy and Hillary are Tranny cousins. Domestic issues Bush talks but it is bullshit. The thought of Bush or Christy for 1 day is enough to make me vote third party. If they get the nomination. I sincerely hope Trump runs third party so I can have someone to vote for.
Just let me know when you finally come to the same conclusion that I came to over 40 years ago, that there isn't anybody out there worth voting for. Then I'll give you the names of a few good gun dealers I know and will take you to the range to show you how to use them!!! “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.”
That is an incorrect conclusion. If some of you would vote in the primaries we would get the good candidate. Not everyone in America is bad. Absolutes are almost always wrong. Lets see. You stopped voting after Reagan. How has them results worked out for you?
Say all the conservatives took your advice. What would the results be? Endless liberals. No thanks.
Lets see. You stopped voting after Reagan. How has them results worked out for you? I've never voted... “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.”
I've never voted... Damned. If you only voted. We wouldn't be in the boat we are now. What don't you like about Trump? What don't you like about Cruz?
And where is there a true conservative out there to vote for??? Oh wait there aren't any they are just "Leftard Lights"...
“Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.”
Ted Cruz. Pat Buchanan a few years ago. Then there are lots of third party candidates. What positions of Ted Cruz's are liberal or leftard light?
There is one right winger out there. He is to the right of everyone. Bernie Sanders. You could vote for him. He's a big conservative. Right?
Yea we would, voting for the lesser of 2 evils isn't changing the course the country is on. The only difference is the Leftards drive the train/bus at higher speeds than the Pubbies, it's still being flushed down the same toilet as Europe was flushed. “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.”
Nonsense. How is Ted Cruz going to flush us down the toilet?
Since we are all sinners. We all have a capacity for evil. So no matter if there are two good guys running. It is still the lesser evil.
I think you're confusing me with Ignoring Amos... Didn't he vote for Nixon?? “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.”
$$$$$$$$$$$$$ “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.”
ROTFLMMFAO!!!!!!!! Now for Pericles he would be a right winger... “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.”
He seems to be more conservative than you. Why is democracy held in such high esteem when it’s the enemy of the minority and makes all rights relative to the dictates of the majority? (Ron Paul,2012)
I don't believe that for a minute. He is a true believer.
We may or may not get to find out if you're right or wrong. “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.”
Trump Cruz makes sense to me. Cruz is the only one defending Trump. So it is possible I suppose.
www.freerepublic.com/focus/f-news/1149329/posts?page=1
#2. To: tpaine, out damned spot (#0)
....[T]he framers' concept of natural rights is no longer in complete disrepute.
#3. To: tpaine (#0)
With the addition of Justice Scalia, Kennedy, Souter, and Thomas to the Supreme Court and the elevation of William Rehnquist to Chief Justice, "conservatives" appear now to be in firm control of the Court.
By the late 1990s, Souter began to align himself more with Stephen Breyer and Ruth Bader Ginsburg on rulings, although as of 1995, he sided on more occasions with the more liberal justice, John Paul Stevens, than either Breyer or Ginsburg, both Clinton appointees.
#4. To: Liberator (#2)
This excerpt you've posted from way back in 2004, paine, makes me wanna cry for several reasons. "Conservatives" -- in the mind of the author -- gave an appearance of being "in firm control"??
#5. To: tpaine (#4)
Hey man, shit happens...
#6. To: Liberator (#5)
"In the meantime, I predict a new era where a lot more people and politicians ignore SCOTUS opinions, and institute legal challenges to their 'rulings'..."
#7. To: misterwhite (#6)
That will set the tone for the term. No more liberal games. The adults are in charge.
#8. To: A K A Stone (#7)
"These candidates are poison."
#9. To: misterwhite (#8)
#10. To: misterwhite (#6)
(Edited)
I hope the next Republican President sits down with Justice Roberts and asks for his resignation.
#11. To: A K A Stone (#9)
"Have you ruled any Republican candidates out? You know you wont vote for them even if they get the nomination."
#12. To: misterwhite (#11)
No. Not this time. Anyone would be preferable to Hillary.
#13. To: Liberator (#10)
"what chance is there of Roberts (or IMO Kennedy) facing any music?"
#14. To: A K A Stone (#12)
"Wow. You would vote for Chris Christie. That aint right in the head."
#15. To: misterwhite (#14)
#16. To: A K A Stone, Liberator (#15)
so I can have someone to vote for.
#17. To: CZ82 (#16)
that I came to over 40 years ago, that there isn't anybody out there worth voting for.
#18. To: CZ82 (#16)
#19. To: A K A Stone (#17)
#20. To: CZ82 (#19)
Lets see. You stopped voting after Reagan. How has them results worked out for you?
#21. To: A K A Stone (#18)
#22. To: CZ82 (#21)
And where is there a true conservative out there to vote for??? Oh wait there aren't any they are just "Leftard Lights"...
#23. To: CZ82, sneakypete (#21)
Oh wait there aren't any they are just "Leftard Lights"...
#24. To: A K A Stone (#20)
(Edited)
Damned. If you only voted. We wouldn't be in the boat we are now.
#25. To: CZ82 (#24)
#26. To: CZ82 (#24)
Yea we would, voting for the lesser of 2 evils
#27. To: A K A Stone (#17)
Lets see. You stopped voting after Reagan
#28. To: A K A Stone (#25)
How is Ted Cruz going to flush us down the toilet?
#29. To: A K A Stone (#23)
Bernie Sanders. You could vote for him. He's a big conservative. Right?
#30. To: A K A Stone (#23)
There is one right winger out there. He is to the right of everyone. Bernie Sanders. You could vote for him. He's a big conservative. Right?
#31. To: CZ82 (#28)
How is Ted Cruz going to flush us down the toilet? $$$$$$$$$$$$$
#32. To: A K A Stone (#31)
I don't believe that for a minute. He is a true believer.
#33. To: CZ82 (#32)
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