Greece, Rome, and the Bill of Rights (34 page)

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Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

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that it is the responsibility of government to protect. "Enumerate all the rights of men!" exclaimed Wilson. "I am sure, sirs, that no gentleman in the late Convention would have attempted such a thing."

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In his speech to the House explaining his proposed amendments, James Madison took care to respond to the concern that enumerating some rights would imply that there are no others:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.
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For contemporary observers who are skeptical of such a theory of rights, the Ninth Amendment thus poses both a philosophical and a political dilemma. Randy E. Barnett asks whether the Ninth Amendment was a philosophical mistake, pointing out that until quite recently, manyif not mostmodern philosophers insisted that there is no such thing as natural rights. In this view, government, not "nature," is the ultimate source of all rights.
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Given a philosophical skepticism about rights, the reference in the Ninth Amendment to unspecified retained rights is no different from a constitutional prohibition of discrimination against ghosts.... If rights antecedent to government are mere illusions or ghosts, then judicial enforcement of these alleged "rights" can only be wholly subjective and arbitrary.... Decisions that are unavoidably based on subjective preferences, the argument continues, ought to be made by the representative branch of government so as to reflect the preferences of the majority.
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Modern skeptics about the possibility of discerning rights independent of those already defined by governmentwhich presumably means by the will of the majorityare therefore left in some quandary about where to base their arguments. Barnett notes that it is doubtful that all rights retained by the people could be specified in advance:
In a classical liberal theory of rights, rights define a sphere of moral jurisdiction that persons have over certain resources in the worldincluding their bodies. This jurisdiction establishes the boundaries within which persons are free to do what they wish. As long as people are acting within their respective jurisdictional spheres, their acts are deemed to be ''rightful" (as distinguished from "good"), and others may not use force to interfere.

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To define is therefore to limit. A theory of natural rights establishes parameters, not particularsand those parameters are seen to be somehow independent of the current will of the majority. In a letter to Thomas Jefferson, Madison wrote of his sense of the dangers to individual rights from governments acting by the will of the majority or popular causes:
Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of its Constituents.
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Madison thus considered the Bill of Rights a way of constraining, by means of an independent judiciary, abuses by the legislature and the executive. That is, the Bill of Rights was not designed to protect the majority or the powerful.
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The Ninth Amendment has been interpreted as a cautionary or even redundant means of constraining govern-

 

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ment power, both by reinforcing the limitations on the delegated powers of government, and by placing additional restrictions on the ways by which government may pursue its delegated ends.

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In this view, the conflict between natural or individual rights and government power will expand as the power of government increases. According to Mr. Justice Brennan, the "possibilities for collision between government activity and individual rights will increase as the power and authority of government expands."
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Many unenumerated rights have already been acknowledged by the courts over the past two hundred years. Among these are the right to vote, subject only to reasonable restrictions, and the right to cast a ballot equal in weight to those of other citizens; the right to associate with others; the right to marry or not to marry; the right to travel in the United States; the right to receive equal protection not only from the states but also from the federal government; the right to make one's own choice about having children; the right to attend and report on criminal trials.
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Others have been acknowledged and established by constitutional amendment. In 1865, seventy-four years after the Bill of Rights was ratified, the Thirteenth Amendment abolished slavery. Fifty-five years after that, the Nineteenth Amendment in 1920 assured the right of women to vote.
One way to avoid a limitless theory of rights is to view the Ninth Amendment as generally "presumptive," that is, that it establishes a constitutional presumption in favor of individual liberty.
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This would resemble the specific presumption of the First Amendment in favor of free speech, even though constraints such as fraud, copyright, and defamation might provide limits or boundaries on that presumption.
Under the formal limits of the presumptive approach to the Ninth Amendment, the judiciary would be confined to enforcing only whatever unenumerated rights are comparable to substantive and procedural rights that were enumerated, so long as they are consistent with the constitutional principles of due process and equal protection.

 

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