Stephen's Statements A little bit of everything from Stephen Duncan Jr, a Programmer/Web Geek working in the defense industry

Monday, December 06, 2004

A Tempting Cohesive Judicial Philosophy

CMN comments in response to JaneGalt.

As I think Randy Barnett's work convincingly shows, the whole point of the 9th Am is that rights are innumerable. It's only government powers that are limited and numbered. We don't list your inviolable rights, because liberty means the inviolable right to do anything that doesn't violate someone else's rights, in which case one of the government's listed powers ought to cover it. The burden of proof should always be on the government in exercising its power, not the citizen in acting. Thus Barnett would relieve Scalia of the burden of deciding which rights are "fundamental," by saying, "They all are. You know the kind of scrutiny of government action you apply when free speech or religious practice is involved? Just use it all the time." The presumption is of liberty, the burden of proving entitlement is on the government. Make the government file the Brandeis brief. Make it prove that it has a legitimate end and is using narrowly tailored means to achieve it. If so, fine.

While I gave Ken's post the hat-tip on 9th Amendment point, this comment from Chris deserved it's own post. I find his argument (via Randy Barnett) very persuasive. But am I missing something? Does my heart lead me astray?...

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