There's no reason for the framers to tell the legislature than it can legislate.
Part of the opposition to the bill of rights was the idea that if rights were enumerated that the enumeration would in effect provide a limitation of the rights. So there certainly was cause to say that the enumeration didn't rule out other rights. Whether that was sufficient reason to give the idea its own amendment is debatable, but the people who wrote it seem to think it was.
As I have said before, I fully appreciate your concern about positive rights but I don't understand why you are so niggardly about the basic negative rights of human dignity supposedly accorded to everyone.
I'm not niggardly about basic rights, I'm reluctant to write ideas in the constitution, partially on general principles (law serves as a better protection if it cant be reinterpreted to mean something else on a whim, or because its popular to do so); but also because if you can write in basic negative rights, you can also right in positive rights, or bad claims for negative rights. The 9th then becomes full support for the legal theory that the constitution has no solid meaning and is just whatever the courts at the time think it is. To be fair there is a practical sense that it is that way, if courts consistently interpret the constitution in a specific way the law, legal culture, and the effective powers of the various branches of government will reflect that interpretation. But the idea of some serious unchanging meaning serves as something of a bulwork against the "living constitution" idea.
Telling someone he can't grow wheat is well beyond telling him he can't marry his cousin or shave his head.
I don't really agree with that. They are different things but they are both areas of serious intrusion by the government. Neither is really anyone else's business. I'd apply that to commerce as well (while allowing rules delineating contract law, etc.), but the growing of wheat by Filburn wasn't even for sale/commerce (let alone commerce between state lines).
Also the insurance claim is in one sense uniquely intrusive since its a requirement that you do something, not just a prohibition against doing something. |
