Subject: Re: M-TH: Privacy and Marxism
Date: Fri, 6 Feb 1998 17:57:22 -0500 (EST)
From: "hoov" <hoov-AT-freenet.tlh.fl.us>


Justin:
> I think the 9th A business went nowhere because no one has ever been able
> to figure out what the damn think might mean. 

no disagreement...wording allows advocates of judicial "restraint" to
argue that #9 was intended only to restrict federal powers and advocates
of judicial "activism" to argue that it protects liberties not listed...

as folks know, the omission of a bil of rights was the chief obstacle
to ratification of the 1787 constitution...beyond Madison's explanation
that this absence resulted from the framers' fatigue and desire to go
home after 4 months (despite the fact that delegates from seven of the
twelve states present had state bills of right, no one raised the issue 
until George Mason - himself the author of Virgina's bill of rights -
did so five days before the eventual adjournment), the rationale for
omission was logic...because the national government was limited to 
powers granted to it and because no power was granted to abridge 
people's liberties, a list of guaranteed freedoms was unnecessary (of 
course, this rings a bit hollow coming from the likes of an Alexander 
Hamilton, a monarchist and advocate of strong, energetic national 
government)... 

in theory, #9 embodies the 18th century conception of natural rights...
in accordance, the Bill of Rights doesn't confer rights, but protects
those already granted by natural law...and what might some of these
liberties be?...Edward J. Erler, in "The Ninth Amendment and
Contemporary Jurisprudence" (*The Bill of Rights: Original Meaning
and Current Understanding/1991, p435) notes a variety of such claims: 
from marriage, procreation, travel, and clean air, to those in the United
Nations Declaration of Rights, which includes the right to a vacation...

so we're faced with the politics - indeterminancy - of language and
meaning...legal reality is constructed through languages used to talk 
about the law...legal reasoning is one such language...it is, of course, 
the language of those with official legal authority...maybe there is 
something to this pomo stuff after all...Michael Hoover


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