February 19, 2004

Ninth Amendment Debate

If you want to learn more about the Ninth Amendment, Tim Sandefur has been typing like mad on the subject for the past couple of days, carrying on a running discussion with the bloggers at Southern Appeal about the history, interpretation, and modern application of one of the least-understood amendments in the Bill of Rights.

He even scored a complimentary link from con-law guru Randy Barnett, who finds that Tim has been doing a good job defending the original meaning of the amendment.

I tend to side with Tim on this, at least in this part:

"We must not allow ourselves to be spooked into thinking that the end of good government is for the judiciary to defer. History reveals that the worst abuses of Americans have proceeded from a combination of the legislature and the executive, and that judicial restraint has far more often been a license for these oppressors than a protection for our freedom. Of course we don't want unelected judges running everything. But we do not want elected legislators running everything, either. The reason we have a constitution is to stop the legislature from governing certain things. The Ninth Amendment tells us that those 'certain things' are not limited to the things specifically mentioned in the Bill of Rights -- there are other things. What are they? Well, there you must consult history, law, political philosophy, and so forth. That is what the Ninth Amendment means. That is what the privileges or immunities clause means. Any other interpretation would tend toward legislative absolutism and to rendering the Ninth Amendment a nullity, and must therefore be a flawed interpretation."

Click over and keep scrolling down.

Posted by JohnL at February 19, 2004 09:20 PM
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