FauxPolitik

Wednesday, July 09, 2003

9th Amendment: From my interest in Supreme Court matters, I've taken to reading up a bit of some of the weighty thoughts on the 9th Amendment, and I'm finding that one of the sharpest writers on the subject is none other than the Volokh Conspiracy's Randy Barnett. I was reading some of his non-Volokh writing today and came across this passage. It might have a familiar ring to it:
Instead [of relying on enumeration for the legitimacy of liberty], we may adopt a justificatory presumption of liberty that puts the burden on government to show that any interference with the exercise of the rights retained by the people is justified. In contrast, courts today employ a "presumption of constitutionality" that can be rebutted by the citizen identifying a "fundamental" right that has been infringed. With the exception of the right to privacy, in recent years only enumerated rights have been deemed to be fundamental. Certainly, no general right to liberty has been so characterized.
Compare that with the standard conservatove (Bork) view:
So it has been with the clause of the fourteenth amendment [N.B. Based on his previous writings, I think Bork implies the same for the 9th Amendment here.] prohibiting any state from denying citizens the privileges and immunities of citizens of the United States. The clause has been a mystery since its adoption and in consequence has, quite properly, remained a dead letter.
My emphasis, of course. I think it's worth any thoughtful conservative's time to ponder this small philosophical point. The conservative side, argued by Bork, is a brief for state (i.e., government) power over citizens rights; that is, if the Constitution doesn't explicitly forbid the state from action, that action, while possibly immoral or unjust, is not per se unconstitutional -- hence Bork's "dead letter" rhetoric on privileges and immunities.

So much for liberty-minded Republicans.

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