Responses to Comments on "Legislative Restraint":
After a few uncivil threads, I am really enjoying reading the exchange generated by the two previous posts. There is much I could comment on, but I will limit myself to a few points.

JunkYardLawDog: Yes, indeed courts can act unconstitutionally in their rulings. One virtue of originalism is that it provides a benchmark external to case law by which to judge judicial behavior. As the first sentence of Restoring the Lost Constitution states, "Had judges done their job, this book would not need to be written." Allowing precedent to trump original meaning (where that meaning is clear), which is supported by all ideological stripes when it is convenient, actually puts the rulings of judges above that of the Constitution.

SCOTUS lawyer: It is impractical NOT to have an external baseline against which to measure the constitutional performance of all branches and levels of government. Of course, any benchmark--including originalism--will not be implemented unless it is accepted by a sufficient number of decision makers. But to achieve this end, we must consider, debate, and eventually persuade enough people on the proper way to interpret the Constitution. That is the point of discussions such as these, and any claim of "unreality" simply misses the point of this particular discussion and constitutes a self-fulfilling prophesy. I do not claim it is likely that the original meaning of the entire Constitution will be restored. I claim only that knowing what that original meaning is (and its limits) is a prerequisite to its restoration. On the other hand, I believe it is highly unrealistic to expect much improvement from sloganeering about "judicial activism," "judicial restraint," or "not legislating from the bench." In the absence of some coherent view of constitutional meaning (such as that provided by originalism), these terms are simply too vacuous to accomplish anything.

Andrew Hyman: Whether or not the unenumerated rights to which the Ninth Amendment refers are enforceable is a legitimate debate that cannot settled by assertions on one side or the other. I comprehensively address the evidence of original meaning of the Ninth Amendment in an article, The Ninth Amendment: It Means What It Says forthcoming in the Texas Law Review. (A preliminary version can be downloaded here, but the paper has been substantially revised to respond to some valid criticisms of this version.) While that evidence is very clear on the meaning of "the rights retained by the people," there is little originalist evidence on the enforcement of ANY constitutional right, including those enumerated in the first 8 Amendments.

One way to approach the question of enforceability seems to emerge from the origins of the 9th Amendment: however enumerated rights are protected, so should unenumerated right. To do otherwise would be to "deny or disparage" the other rights retained by the people precisely because they were not enumerated. (Remember for 2 years after ratification of the Constitution NO rights were enumerated.) Here are the rules of construction that Virginia jurist and scholar St. George Tucker thought flowed from the Ninth and Tenth Amendments, as stated in his Notes on the U.S. Constitution published in 1802:
All the powers of the federal government being either expressly enumerated, or necessary and proper to the execution of some enumerated power; and it being one of the rules of construction which sound reason has adopted; that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it, in cases not enumerated; it follows, as a regular consequence, that [1] every power which concerns the right of the citizen, must be construed strictly, where it may operate to infringe or impair his liberty; and liberally, and for his benefit, where it may operate to his security and happiness, the avowed object of the constitution: and, in like manner, [2] every power which has been carved out of the states, who, at the time of entering into the confederacy, were in full possession of all the rights of sovereignty, is, in like manner to be construed strictly, wherever a different construction might derogate from the rights and powers, which by the latter of these articles; are expressly acknowledged to be reserved to them respectively. (numbers inserted in brackets)
And elsewhere in his treatise, he writes:
As federal it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question.
This sentence is followed by a footnote citing the Tenth (twelfth) Amendment. The passage then continues by clarifying what are the rights of citizens:
as a social compact it ought likewise to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the subject of dispute; because every person whose liberty or property was thereby rendered subject to the new government, was antecedently a member of a civil society to whose regulations he had submitted himself, and under whose authority and protection he still remains, in all cases not expressly submitted to the new government.
This passage is followed by a footnote reference to the Ninth (eleventh) and Tenth (twelfth) Amendments. Sounds a lot like the Presumption of Liberty, doesn't it?

Finally, these passages concerning the proper construction of the 10th Amendment must be tempered by the change to federalism brought about by Republicans in the 39th Congress with the 14th Amendment, the original meaning of which gave a new jurisdiction to the federal government to protect the rights of citizens from being violated by their own state governments. But that is another story. (Civil comments only please.)

Related Posts (on one page):

  1. Responses to Comments on "Legislative Restraint":
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  3. "Judicial Negation is Not Legislation":