"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
If our only rights are the ones specifically listed in the U. S. Constitution as amended, what's all this about, then?
We ended up with a Bill of Rights because the Antifederalists argued that a number of rights needed to be explicitly protected from Federal meddling (including the delightfully-sweeping Ninth). Federalist counter-arguments included this: "It [the Bill of Rights] was dangerous because any listing of rights could potentially be interpreted as exhaustive. Rights omitted could be considered as not retained."
Turns out the debate in those dusty old history books is still alive.
(Also please note, the excessive and unusual arrangement of commas, is not confined to the Second Amendment.)
For all that argument, counter-argument, they were deficient about providing means to define, identify and accept those un-enumerated rights. Amendment? Congress? The Courts? Popular Vote?
ReplyDeleteHow interesting.
ReplyDeleteSome light on this subject might be shed by the Cruickshank decision.
ReplyDelete"The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States."
As I read it, the Court said that the rights not defended by the federal government were to be protected at the state or local level, for good or ill. That would include all the Nonth Amendment rights, whatever they may be.
he debates on the Bill of Rights included:
ReplyDelete"... the committee were governed by that general principle, they might have gone into a very lengthy enumeration of rights; they might have declared that a man should have the right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper."---Theodore Sedgwick
Clearly, people have the right to wear a hat in a driver's license photo.
In addition, Daylight Savings Time is intended to ensure that people got up earlier in the Spring and Summer. That might mean it is also a Ninth-Amendment violation.
It is nice to see a revival of interest in the 9th and 10th Amendments. They, more even than the 2nd had become the unwanted "Cinderellas" relegated to the corner. While I'm not sure how successful an abortion law argument would be received using the 9th or 10th Amendments, it would be refreshing to see someone try.
ReplyDelete