Judicial Review, Judicial Restraint, Judicial Activism and Rights

Justin Schwartz jkschw at hotmail.com
Tue May 15 21:25:49 PDT 2001

Yeah, Brad, and what does _that_ mean? The only way to tell is to have the courts interpret it, to develop a body of precedent articulating the meaning of the terms in the context of concrete cases, to develop standards for applying the tests so that one can make guesses about the legal consequences of one's actions in light of those tests, and so forth. This hasn't been done. Let me tell you that if you come into court with a 9A argument to attack a piece of legislation or a government action as "denying or disparaging" some unenumerated right, you will be nonsuited, and possibly, if the judge is feeling cranky, sanctioned for making a frivolous argument. --jks

>>The short answer to the question about why the burden isn't there is
>>because the courts have been silent onthe 9A for more than 200 years.
>>Since it's not evident what it means on its face...
>Gee. I thought it meant that "the enumeration in the Constitution, of
>certain rights, shall not be construed to deny or disparage others retained
>by the people."
>Silly me...
>Brad DeLong
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