In sum, this Federalist objection to a bill of rights assumes the preeminent importance of the unwritten rights retained by the people35. On the opposite, the Federalists disparaged the thought of using a written declaration of rights within the Constitution precisely to protect the rights retained by the individuals. Nor does it deny that retained rights operate as a genuine and enforceable constraint on government. Thus, the Federalist place does not disparage as superfluous the rights retained by the people.
My disagreement with the Court’s opinion holding that there’s such a violation here’s a narrow one, referring to the application of the First Amendment to the details and circumstances of this explicit case. But my disagreement with Brothers HARLAN, WHITE and GOLDBERG is extra basic. I suppose that if correctly construed neither the Due Process Clause nor the Ninth Amendment, nor both together, could under any circumstances be a proper basis for invalidating the Connecticut law. I talk about the due process and Ninth Amendment arguments together as a result of on analysis they become the identical factor—merely using different words to say for this Court and the federal judiciary energy to invalidate any legislative act which the judges discover irrational, unreasonable or offensive. I agree with my Brother STEWART’S dissenting opinion. And like him I do not to any extent whatever base my view that this Connecticut legislation is constitutional on a perception that the legislation is sensible or that its policy is an efficient one.
The Fourteenth Amendment Enforcement Clause
State motion was held glad where a Texas state law criminalized flag burning. Because a potential plaintiff can only state a cognizable declare for a First Amendment violation where some kind of state action applies that abridges a First Amendment proper such as free speech. This requirement is usually ignored by pundits who focus on potential lawsuits as if the state motion factor does not exist or is always glad. Such is definitely not the case. The Court has since invalidated a number of different laws on this ground.
Of course, sometimes when language is overlooked of a doc, it is omitted as a result of it is redundant. If the Ninth Amendment clearly mandated the protection of pure rights, this may present a proof for the rejection of different natural rights language. But at very best, the Ninth Amendment protects natural rights by implication. Those who favor the unenumerated rights view must explain why Congress would move a measure that, at most, did indirectly exactly what it repeatedly refused to do directly. This interpretation is strongly supported not simply by what the Ninth Amendment says, but also by what it does not say. When states submitted proposed amendments to the new Constitution, some of them instructed changes that may have expressly protected pure and unenumerated rights.