>[A]s a matter of simple textual construction and logic, I
>don't think you can look to the IXth amendment as a SOURCE of rights. I
>think the most we can say is 1) that it's not inconsistent with rights that
>arise from or have their legal authority in some other source and 2) that
>from this we can safely imply that the Founders believed that there were
>other sources of human rights.
That strikes me as utterly sound. The 9th does not create rights but merely
limits in certain ways the power of statists (federal ones at first and now,
thanks to incorporation via the 14th Amendment, state, too). Or, to put it
another way, the 9th embodies the Founders' view that state power operates as
an exception to the default rule of individual liberty, an island in a sea of
>[T]he Founders shared an almost
>universal belief in "natural rights". Their thinking about the source of
>natural rights was somewhat diverse, though; some finding the basis for them
>in religious ideas, others in a kind of fictitious anthropology derived from
I'd add common law to that list, as many Founders saw common law rules as
protective (but not exhaustive) of natural rights. My own, somewhat
positivist view of natural rights looks to common law--particularly as it
operated in the era of competing courts--as a pretty good mechanism for
finding those rights that are "naturally" conducive to prosperity and peace.
But to tell that tale would take us too far from the question at hand: how to
understand the 9th.
This archive was generated by hypermail 2b29 : Thu Jul 27 2000 - 14:09:10 MDT