Far Right Seeks To Negate Key Constitutional Rule Of Construction
The Constitution was based on the assumption central to republican political theory of the day that the free persons were sovereign... possessing natural rights... some of which would be surrendered to create government powers which then would further protect rights. So the Constitution was written with that assumption that it would be a government of limited and defined powers therefore all those residual natural rights were secure by the construction of the government. The Framers were satisfied no bill of rights was even needed. Foolishly this assumption was never spelled out in the Constitution. Madison is even on record that to specify some rights would place the others at risk.
When some states demanded a bill of rights Madison saw the light that one was necessary to protect people against those new powers of the government. For example Art 1 gave Congress great power over state militias. Several states feared Congress could disarm or neglect their militias... AND MADISON SIGNED ON TO THIS REQUEST. So when we got the Second, the intent was pretty clear. And Madison finally included two key rules of construction... the Ninth and Tenth. The Ninth simply says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The Ninth was never really debated in the courts. So when Reagan wanted to keep happy the social conservatives that had just joined the GOP coalition, he appointed Bork to the high court. He was rightly rejected because he clearly wanted to abuse his power on the court for a particular agenda... and that was obvious in his claim we could never know what the Ninth really meant. It was pure bullshit and it betrayed his agenda. But Scalia was no different. His approach was since the Ninth stated no rights it was impossible for the Court to protect them. Poof... the Ninth would be negated. But in the process this greatly enlarged the power of government.
Problem here is the Dems have never gone out of their way to flesh out the Ninth. For example their position for the past 40 years could have been... if the GOP wants to repeal the right to choose then they have to pass an amendment to negate the Ninth.
Ultimately we all would have been better off if the Ninth were written as a more positive declaration of rights as the French did in 1798...
4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.
5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.
http://avalon.law.yale.edu/18th_century/rightsof.asp
