[QUOTE=Atomicktom]
You didn’t address this to me, but I’ll take a stab at responding.
To do so, we must first define our terms. When you speak of “government”, it’s important to remember that the US actually has 51 constitutional governments, one for the Federal government and one for each of the 50 states. Since each state government is governed by its own constitution, there remains the distinct possibility that any one of your hypotheticals is unconstitutional for reasons having nothing to do with the US Constitution (for example, my own State, Florida, has an express right to privacy, actually enumerated and written down. It also has a section on the housing of pregnant pigs, so don’t get all teary eyed about its eloquence). Since this is a debate about the US Constitution, though, I’ll assume we are talking about the Federal government.
Now, anytime the Federal government passes a law, it must do so by virtue of the express authority granted to it under the Constitution. IOW, the congress must be able to point to some provision granting it authority to act (just as specific Fundamental Rights aren’t implied in the constitution, IMO, neither are powers). Even if the Congress can point to a specific provision of the Constitution, it is still limited by the “necessary and proper” clause in the document to justify why the law adequately falls within the purview of that power.
Where, then, does the Federal government derive the power to legislate on contraception or blowjobs? Note, please, that laws regarding same-sex marriage or sodomy aren’t federal laws. The GOP often pushes a Federal Amendment defining marriage between a man and a woman, but it doesn’t propose it as a bill in Congress. Why not? Because there is no Federal power to legislate such matters (and, as I’ve noted, there already may be state protections against such laws; in Florida, a no blowjob law would be clearly unconstitutional).
The broadest grant of power in the constitution is the “general welfare” clause in Article 1, Section 8, and I suppose it could be used to justify putting additives in the water (don’t we already do that with fluoride?) or restricting the number of children a family could have. Ultimately, though, the check on most such actions is the democratic process. While it’s true that the Bill of Rights do protect a minority of people from the tyranny of the majority, in a democracy, the majority usually does win.
I realize that, in this day and age, it’s natural to be cynical about the corruption in politics, and to believe that nobody can be trusted. But, in the absence of a better alternative, our democratic government has to trust that bad laws won’t be proposed by legislators who need to remain in the good graces of their constituents. I can certainly see a population explosion rendering serious consideration of a “one child” policy. I can’t see a politician successfully convincing god-fearing, family values, salt of the earth voters to accept such a policy, “just like them commie Chinese do it.” Similarly, I believe there would be a huge uproar if the government attempted to pass a law adding an addictive drug like Xanax to our water supply, especially if the intent was to mollify the population into complacency.
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I appreciate your answering the question honestly. I find it absolutely against the language of the 9th Amendment, the intent of the founders, as well as damn dangerous to our country, to believe that the government is unrestrained in violating our rights unless those rights are specifically enumerated. Also, as a practical matter, I think you have waaaaaayyy too much faith in people. Although we haven’t yet had the one child, the government has, in the past, outlawed certain sexual acts and made contraception illegal.
Madison, when discussing the 9th Amendment, certainly thought like you did, in part at least. He thought the limitations placed on the federal government would serve as a protection against the governments infringement of rights. In my estimation, he seriously “misunderestimated” the powers the government would eventually have. But, in addition to that reason, he did recognize that, by enumerating certain rights, people would (wrongly) think that other rights didn’t exist and weren’t protected. Hence, the 9th Amendment.