Has anyone looked at the Nineth Amendment of the Bill of Rights? Because of what is being said about rights not enumerated in the Constitution by SCOTUS and Carol Stewart is precisely why it exists. Some history:
“The Amendment’s origin is fascinating history. James Madison proposed the Amendment to counter the Federalist arguments that a bill of rights was unnecessary or even unwise. The Federalists argued that the government created by the Constitution was permitted to exercise only those powers specifically granted to it in the Constitution. The governmental structure itself with its checks and balances would be the best protection for individual rights. Besides, the Federalist argument continued, a bill of rights might even be dangerous because a list of some protected rights might be interpreted to mean that all unlisted—or unenumerated—rights were unprotected.”
That is precisely what they are arguing and what Carol Stewart is arguing. If it is not listed in the “original” constitution, it is not a right. That is simply not true.
In Dobbs v. Jackson Woman’s Health, the majority opinion relied on an “originalist” construction of the constitution:
Because the constitution does not expressly “grant” a right to an abortion, and because there was no historical right to an abortion when the constitution was drafted, the Roe decision erroneously made up a constitutional right out of whole cloth. Underlying this opinion is the belief that the constitutional rights of individuals are limited to those expressly granted by the constitution or recognized as existing when the constitution was adopted.
In Federalist No. 84 (Certain General and Miscellaneous Objections to the Constitution Considered and Answered),
Hamilton addressed the argument that the constitution should not be adopted because (as proposed for adoption) the constitution did not contain a bill of rights. Without a bill of rights, objectors to the constitution argued, the rights of individuals will be subject to the whims of the legislature. However, Hamilton anticipated and dispatched the “theory” that the failure to expressly provide for a particular human right in the constitution meant that the legislature could decide when, and to what extent, the particular right would be recognized:
“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.”
Imagine what Hamilton’s reaction would be to the majority opinion’s reasoning and “originalist” construction if he were alive today. Hamilton was indeed prophetic. This quote from Hamilton lays bare the irony and intellectually dishonesty of the interpretation of the rights of individuals by the “originalists” (like Alito and Thomas) and their failure to acknowledge, much less respect the Founder’s intent and understanding. The majority “originalists” apparently think that human rights are granted by the constitution, which is contrary to the original intent of the Founders as expressed in the above quotation. According to the Founders (Hamilton), however, the rights of the individual are not granted by the state, but are inherent in the individual.
But not anymore!
Publius too must be growing old now . . .
“Total Hypocrisy, Franken Pushed Back on GOP” – Angry Bear (angrybearblog.com)
“Answering John Roberts Beliefs of Innocence” – Angry Bear (angrybearblog.com)
“The Bill of Rights: What Does it Say?” | National Archives