Comments on: The 9th Amendment Means What It Says http://www.positiveliberty.com/2006/12/the-9th-amendment-means-what-it-says.html Wed, 20 Aug 2008 14:59:22 +0000 http://wordpress.org/?v=2.5.1 By: Constitutional Originalism, Natural Law, and The Ninth Amendment « Home of the Brave http://www.positiveliberty.com/2006/12/the-9th-amendment-means-what-it-says.html#comment-566009 Constitutional Originalism, Natural Law, and The Ninth Amendment « Home of the Brave Fri, 08 Feb 2008 02:00:50 +0000 http://positiveliberty.com/2006/12/the-9th-amendment-means-what-it-says.html#comment-566009 [...] (This is not a law review article. It represents my opinion, laid out in simple terms to possibly pique a politically interested, but not legally trained, readership. There has been a lot more technical discussion and analysis of this issue at blogs and in law review articles. These two blog posts provide an excellent starting point for those who are interested to go deeper.) [...] [...] (This is not a law review article. It represents my opinion, laid out in simple terms to possibly pique a politically interested, but not legally trained, readership. There has been a lot more technical discussion and analysis of this issue at blogs and in law review articles. These two blog posts provide an excellent starting point for those who are interested to go deeper.) [...]

]]> By: Etseq http://www.positiveliberty.com/2006/12/the-9th-amendment-means-what-it-says.html#comment-202998 Etseq Sun, 17 Dec 2006 07:32:02 +0000 http://positiveliberty.com/2006/12/the-9th-amendment-means-what-it-says.html#comment-202998 Sorry to take up more space, but I read some of the pieces from Levin's blog a little more closely, and found some astounding distortions of Madison that I'd like to share. Their big point, of course, is that the constitution could not have possibly intended to leave it up to activist liberal judges to decide what our rights are. For this, they cite Madison quotes which they feel show that Madison thought that Congress and not the judiciary was to identify our unenumerated rights. I took a look at Ponnuru's review of Barnett's book that was linked to in the piece: http://article.nationalreview.com/?q=MmMyYTExY2MzZGI5MDM0Y2UzMThkNjZkMjc4MWZmYTY= Ponnuru writes that "Madison seemed to think that the chief value of the Bill of Rights would be its effect on the political culture: It would be 'good ground for an appeal to the sense of the community.'" Go take a look at the letter he's citing (but cleverly doesn't link to): http://www.constitution.org/jm/17881017_tj.htm The letter is an argument about the merits of the Bill of Rights, and Madison spends the first half of the letter talking about the need to draw a sharp line to prevent government encroachment on our rights. Ponnuru's quote comes from the part of the letter where Madison is addressing the possible value of a bill of rights on the "popular governments"! He mentions the "sense of the community" because he's making a specific point about an additional non-judicial value of the bill of rights. There's nothing at all in that letter that suggests Madison thought this was the "chief value." Franck pulls an equally duplicitous move (see the link in my previos post). He writes: "For when Madison comes a moment later to stating the role that 'independent tribunals of justice' will play as the 'guardians' of rights, he refers only to the 'rights expressly stipulated for in the constitution by the declaration of rights.'" Go back and take a look at the speech he's citing: http://www.let.rug.nl/usa/P/jm4/speeches/amend.htm Madison is not talking about the scope of the judicial power. He's talking about why it's a good idea to expressly incorporate a bill of rights. He had to use the word "expressly" because that was the whole point of his argument---that an express bill of rights would make it easier for judges to protect our rights rather than back down to the legislature. I think it wouldn't bother me so much if they didn't go around calling themselves originalists... Sorry to take up more space, but I read some of the pieces from Levin’s blog a little more closely, and found some astounding distortions of Madison that I’d like to share.

Their big point, of course, is that the constitution could not have possibly intended to leave it up to activist liberal judges to decide what our rights are. For this, they cite Madison quotes which they feel show that Madison thought that Congress and not the judiciary was to identify our unenumerated rights. I took a look at Ponnuru’s review of Barnett’s book that was linked to in the piece:

http://article.nationalreview.com/?q=MmMyYTExY2MzZGI5MDM0Y2UzMThkNjZkMjc4MWZmYTY=

Ponnuru writes that “Madison seemed to think that the chief value of the Bill of Rights would be its effect on the political culture: It would be ‘good ground for an appeal to the sense of the community.’”

Go take a look at the letter he’s citing (but cleverly doesn’t link to): http://www.constitution.org/jm/17881017_tj.htm

The letter is an argument about the merits of the Bill of Rights, and Madison spends the first half of the letter talking about the need to draw a sharp line to prevent government encroachment on our rights. Ponnuru’s quote comes from the part of the letter where Madison is addressing the possible value of a bill of rights on the “popular governments”! He mentions the “sense of the community” because he’s making a specific point about an additional non-judicial value of the bill of rights. There’s nothing at all in that letter that suggests Madison thought this was the “chief value.”

Franck pulls an equally duplicitous move (see the link in my previos post). He writes:

“For when Madison comes a moment later to stating the role that ‘independent tribunals of justice’ will play as the ‘guardians’ of rights, he refers only to the ‘rights expressly stipulated for in the constitution by the declaration of rights.’”

Go back and take a look at the speech he’s citing: http://www.let.rug.nl/usa/P/jm4/speeches/amend.htm

Madison is not talking about the scope of the judicial power. He’s talking about why it’s a good idea to expressly incorporate a bill of rights. He had to use the word “expressly” because that was the whole point of his argument—that an express bill of rights would make it easier for judges to protect our rights rather than back down to the legislature.

I think it wouldn’t bother me so much if they didn’t go around calling themselves originalists…

]]> By: Etseq http://www.positiveliberty.com/2006/12/the-9th-amendment-means-what-it-says.html#comment-202987 Etseq Sun, 17 Dec 2006 06:22:23 +0000 http://positiveliberty.com/2006/12/the-9th-amendment-means-what-it-says.html#comment-202987 Check out some NRO pinheads' take on Barnett: http://levin.nationalreview.com/post/?q=ZjIwNjE4YjNlMTRlNWU5ODc3MzkzN2I4NTRhNGEyNDA= I think one of the less-noticed but most unfortunate disappointments of the conservative movement has been that the Borkians have upstaged the libertarians when it comes to judicial philosophy (at least if you listen to the radio shows and read NRO et al). Pushing through the social conservative agenda trumps everything else when it comes to the law. What kills me is that they claim to represent "originalism" and respect for the founders' vision of the constitution, while their entire majoritarian philosophy rests on pretending the ninth amendment doesn't exist. Check out some NRO pinheads’ take on Barnett:

http://levin.nationalreview.com/post/?q=ZjIwNjE4YjNlMTRlNWU5ODc3MzkzN2I4NTRhNGEyNDA=

I think one of the less-noticed but most unfortunate disappointments of the conservative movement has been that the Borkians have upstaged the libertarians when it comes to judicial philosophy (at least if you listen to the radio shows and read NRO et al). Pushing through the social conservative agenda trumps everything else when it comes to the law. What kills me is that they claim to represent “originalism” and respect for the founders’ vision of the constitution, while their entire majoritarian philosophy rests on pretending the ninth amendment doesn’t exist.

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