In sum, this Federalist objection to a bill of rights assumes the preeminent importance of the unwritten rights retained by the people35. On the contrary, the Federalists disparaged the concept of utilizing a written declaration of rights within the Constitution precisely to protect the rights retained by the people. Nor does it deny that retained rights function as a genuine and enforceable constraint on authorities. 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, relating to the application of the First Amendment to the information and circumstances of this explicit case. But my disagreement with Brothers HARLAN, WHITE and GOLDBERG is more basic. I think that if correctly construed neither the Due Process Clause nor the Ninth Amendment, nor each collectively, may underneath any circumstances be a proper foundation for invalidating the Connecticut legislation. I focus on the due process and Ninth Amendment arguments together because on evaluation they turn into the identical factor—merely utilizing different words to assert for this Court and the federal judiciary power 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 to not any extent whatever base my view that this Connecticut regulation is constitutional on a perception that the regulation is smart or that its coverage is a good one.
The Fourteenth Modification Enforcement Clause
State action was held satisfied where a Texas state regulation criminalized flag burning. Because a possible plaintiff can only state a cognizable declare for a First Amendment violation where some sort of state action applies that abridges a First Amendment right such as free speech. This requirement is often ignored by pundits who discuss potential lawsuits as if the state action component doesn’t exist or is at all times glad. Such is certainly not the case. The Court has since invalidated several other laws on this floor.
Of course, typically when language is ignored of a doc, it is omitted because it is redundant. If the Ninth Amendment clearly mandated the protection of pure rights, this might provide an evidence for the rejection of different pure rights language. But at very best, the Ninth Amendment protects natural rights by implication. Those who favor the unenumerated rights view should explain why Congress would pass a measure that, at most, did indirectly precisely what it repeatedly refused to do immediately. This interpretation is strongly supported not simply by what the Ninth Amendment says, but also by what it doesn’t say. When states submitted proposed amendments to the new Constitution, a few of them suggested changes that might have expressly protected pure and unenumerated rights.