You are trying to confuse the issue. Justice Burger certainly seems to have agreed that the 9th Amendment protects rights not made explicit by the Constitution but only implicit in its language. (See the quote I cited above.)
My own philosophy would take that further and give the Court leeway to discern and protect rights without going through contortions to moor those rights to specific Consitutional language. I believe that is precisely what the Framers had in mind. They understood rights to be reserved to the people as a matter of natural law, not doled out by the federal government via the Constitution.
Can you point to language by one of the Framers indicating that a right should not be recognized unless it flows directly and implicitly from one of the rights enumerated in the Constitution?
No. If the majority of the country wants to establish the rights in the Civil Rights Act across the entire nation, there is a process for doing that-- amend the constitution. Otherwise, yes, it should be up to the states.
As an added aside, isn’t the Constitution itself the antithesis of democracy? A bunch of dead white guys (no women, no blacks) decided 200 years ago we have the right to be free from unreasonable searches and seizures. Perhaps a majority of people today disagree. Why should we be bound by the decisions of people who lived and died long before any of us currently living was even born?
“Admit”? You make it sound like I’ve tried to hide or minimize that fact and you’ve had to drag it out of me, when in fact I’ve noted it in every single post of mine in this thread dealing with the '64 Act. :rolleyes:
Which has fuck-all to do with the fact that (1) the CRA exists, (2) it creates rights, and (3) Federalist Society members recognize facts 1 and 2.
My point, you’ll recall, is that there are sources of legal rights other than the federal constitution, including state constitutions and state and federal statutes. I brought up the CRA as such a statute.
Whether the Federalist Society types support or oppose a given statute does not change the fact that (1) statutory rights exist, (2) the Federalist Society recognizes 1, and (3) the Federalist Society (and me) views the 9th amendment as protecting 1 (among other sources).
On the one hand, I do want the text of the constitution vigorously enforced, and the court in Kelo does seem to be essentially deleting the phrase “public use.”
On the other hand, I prefer the court to err on the side of constitutionality, both because legislative choices are more in line with notions of the governed’s consent, and because it’s a lot easier to undo a bad legislative choice than it is to undo a bad Supreme Court finding of unconstitutionality. Indeed, it appears that this is exactly what is happening in the wake of Kelo. Which is a good thing, in my book.
Certainly doesn’t sound to me like he’s worried about rights created by statute or by state constitutions. (Surely you don’t contend those are the “essential rights” to which he refers?)
Sounds to me like he’s worried that it would be impossible to list all of the fundamental rights reserved to the people, and that he intends the people to retain those rights whether or not they are explicitly spelled out in the Constitution or its amendments.
If you’re honestly interested in the reasoning leading to my position on constitutional interpretation, go to the “Rights? What’s a Right?” link in my first post in this thread.
OK, I’ll take a look. In the meantime, answer the question:
Can you point to language by one of the Framers indicating that a right should not be recognized unless it flows directly and implicitly from one of the rights enumerated in the Constitution?
Not offhand, but then again I am not a strict constructionist because of pithy quotes from Madison, et al. I am a strict constructionist because that position flows from certain first principles, principally notions of consent of the governed.
spoke: What do you think of the decision in Gonzales v. Raich? Given the constutionality of the Civil Rights act and other precedent (based on the commerce clause interpretation), could the court have decided *Gonzales *differently and still maintained judicial consistency?
For one thing, I think Gonzales v. Raich demonstrates the hypocrisy of purported states’ rights advocate Scalia. He is in favor of states’ rights just so long as the states are doing the things he wants them to do. And that doesn’t include experimenting with medicinal marijuana.
But if you’re asking me whether the federal government has the power under the commerce clause to regulate marijuana, I’d say that it does. And yes, I think the Heart of Atlanta case and subsequent Supreme Court jurisprudence lead to this result.
Should the federal government be wasting tax money going after marijuana users (medicinal or not)? Hell no, but that’s a matter to take up with your elected representatives.
Is Randy Barnett reputable enough? Heck, if memory serves, even some of the Libertarian members of the Federalist Society don’t agree with you on how the Ninth should be interpreted.
So, are you suggesting that we need more principled justiced, like Justice Thomas?
“Regulate marijuana” is a broad term. Does the federal gov’t have the right to tell me I can’t grow it in my back yard, for personal use, even if my state legislature says it’s OK?
But what I’m really asking you is if you can accept a strict Federalist approach to the law, such as being advocated by Dewey, as being a legitimate school of constitutional interpretation. Are you saying that anyone who holds the view that Dewey has laid out should automatically be barred from the SCOTUS?
Because that’s the real issue here. Not whether or not you agree with me, or Dewey, or Roberts, but whether you accept that there are various schools of interpretatation, and the school losely referred to by Bush as “strict consrtuctionism” is no less valid than other schools. You may oppose, on political grounds, such candidates, but can you honestly say that a president should be unable to appoint such a candidate if he so chooses? Especially if he explicitly campaigned on the promise to do so…
Nope. I already said Roberts should be confirmed (absent any startling revelations which call his fitness into question). See post #50.
Roberts at least seems to have a judicial temperament, unlike the hotheaded Scalia. I don’t agree with the nominee’s presumed judicial philosophy, but that doesn’t make him unfit to serve.
I’m just in here to offer my limited insights as to what Roberts’s judicial philosophy might be (in light of his affiliation with the Federalist Society).
