The Presumption of Liberty: Protecting Rights without Listing Them

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Fourteenth Amendment ◽  
The People ◽  
Ninth Amendment ◽  
Two Alternatives

This chapter examines how a Presumption of Liberty can protect the unenumerable rights retained by the people by shifting the background interpretive presumption of constitutionality whenever legislation restricts the liberties of the people. One approach that judges may take toward legislation restricting the retained liberties of the people is to protect all the rights retained by the people equally whether enumerated or unenumerated. The question that arises is how one would identify the unenumerated rights retained by the people, or how to define the “substantive sphere of liberty” that is protected by the Privileges or Immunities Clause of the Fourteenth Amendment. Because ignoring all unenumerated rights violates the mandate of the Ninth Amendment, the chapter considers two alternatives: using originalism to identify specific unenumerated rights and the Presumption of Liberty.

Why Care What the Constitution Says?

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Fourteenth Amendment ◽  
Natural Rights ◽  
Police Power ◽  
Original Meaning ◽  
Commerce Clause ◽  
Ninth Amendment ◽  
Constitutional Legitimacy ◽  
The U.S

This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the governed”—is wrong because it is a standard that no constitution can meet. It shows why holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. The book considers the notion of “natural rights” as “liberty rights,” along with the nature and scope of the so-called police power of states. Furthermore, it analyzes the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce Clause and the Necessary and Proper Clause in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.

Ten Death and Transfiguration: How the Ninth Amendment Got Filed in the Wrong Place

2009 ◽  
Author(s):  
Lash Kurt T
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Individual Freedom ◽  
Bill Of Rights ◽  
The Supreme Court ◽  
Ninth Amendment ◽  
Wrong Place

This chapter discusses how the transfigured Ninth Amendment, although used in support of a broad conception of individual freedom, has become a far smaller provision than that envisioned by its framers and has been rendered altogether unenforceable as an independent provision in the Bill of Rights. It describes how the Ninth Amendment has played an important role in matters involving the Supreme Court of the United States.

Nine The Fall of the Original Ninth Amendment and the Rise of New Deal Constitutionalism

2009 ◽  
Author(s):  
Lash Kurt T
Keyword(s):  
Progressive Era ◽  
New Deal ◽  
Federal Courts ◽  
Present Discussion ◽  
Ninth Amendment ◽  
The New Deal

This chapter begins with a fairly exhaustive account of the use of the Ninth Amendment in state and federal courts prior to the New Deal. There is nothing new here in terms of theory: one finds the same analysis of the Ninth Amendment already developed in prior chapters repeated over and over again in state and federal courts throughout the Progressive era. There is a purpose, however, to including this history. One of the most durable myths about the Ninth Amendment is that it attracted little attention prior to the modern Supreme Court's discovery of the Ninth in Griswold v. Connecticut. The present discussion puts this myth permanently to rest. The second half of the chapter helps explain how the myth arose in the first place.

Seven The Ninth Amendment and the Marshall Court

2009 ◽  
Author(s):  
Lash Kurt T
Keyword(s):  
Original Meaning ◽  
Chief Justice ◽  
History Of ◽  
Judicial Opinions ◽  
The One ◽  
Ninth Amendment ◽  
John Marshall

This chapter continues the discussion of the history of the Ninth Amendment and eventually takes it to the one place where no history of it can be found—the judicial opinions of Chief Justice John Marshall. It is argued that different people used the Ninth Amendment in different ways. Some read the amendment as significantly restricting federal power; others insisted that the amendment placed few if any constraints on federal power. But these are differences of degree, not kind. Every court and commentator who took a position on the Ninth Amendment in the initial decades of the Constitution—whether Federalist or Anti-Federalist or Democratic-Republican, nationalist or states' rightist, drafter or ratifier—all described the Ninth as echoing the same federalist principles as the Tenth. Rather than considering the original meaning of the Ninth Amendment, the chapter focuses on what happened to the original meaning of the Ninth Amendment.

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