Thursday, July 28, 2005
9th Amendment
Interesting topic and debate going on over at Southern Appeal on the meaning of the rather vague 9th Amendment. Feddie argues for a more substantive interpretation of the amendment than do most:
My take: I honestly haven't given this much thought. I suppose on one level I am inclined to think that the 9th Amendment primarily applies to the federal rather than state governments since 99% of the orginal Constitutional text and Bill of Rights is on the powers (and limits thereof) of the federal government. Even if one concedes that the amendment applies to both state and federal governments I am not sure what substantive meaning can be given to the 9th Amendment. Again, though, I really haven't thought too much about it. It's an interesting topic to pursue.
Having examined many of the written records from the founding period, as well as several of the framers' "theoretical writing[s]," I can say, with a good deal of confidence, that most (if not all) of the "rights" protected by my Ninth Amendment jurisprudence would simply be those natural law rights recognized by well-established English common law. These rights (in most instances) have clearly defined historical parameters, which would make it possible to establish a coherent Ninth Amendment jurisprudence.There's a pretty good debate going on in the comments section.
In sum, I think my interpretation of the Ninth Amendment is far superior to Judge Bork's, which renders the amendment meaningless, or Randy Barnett's, who seeks to use the amendment to support a radical form of individualism never envisioned by the framers.
My take: I honestly haven't given this much thought. I suppose on one level I am inclined to think that the 9th Amendment primarily applies to the federal rather than state governments since 99% of the orginal Constitutional text and Bill of Rights is on the powers (and limits thereof) of the federal government. Even if one concedes that the amendment applies to both state and federal governments I am not sure what substantive meaning can be given to the 9th Amendment. Again, though, I really haven't thought too much about it. It's an interesting topic to pursue.
# posted by Paul Zummo : 1:54 PM
