Inherent rights, the written constitution, and popular sovereignty : the founders' understanding / Thomas B. McAffee.

Format:

Book

Author/Creator:

McAffee, Thomas B., 1952-

Series:

Contributions in legal studies ; no. 95.

Contributions in legal studies, 0147-1074 ; no. 95

Language:

English

Subjects (All):

Civil rights--United States.

Civil rights.

Constitutional history--United States.

Constitutional history.

Physical Description:

1 online resource (199 p.)

Edition:

1st ed.

Distribution:

London : Bloomsbury Publishing, 2024

Place of Publication:

Westport, Conn. : Praeger, 2000.

Language Note:

English

Summary:

In recent decades the Ninth Amendment, a provision designed to clarify that the federal government was to be one of enumerated and limited powers, has been turned into an unenumerated rights clause that effectively grants unlimited power to the judiciary. Was this the intent of the framers of the Constitution? McAffee argues that the founders had a rather different set of priorities than ours, and that the goal of enforcing fundamental human rights was not why they drafted any of the first ten amendments. They did not intend to grant to the courts the power to generate fundamental rights, whether by reference to custom or history, reason or natural law, or societal values or consensus. It has become increasingly popular to identify our constitutional order as an experiment in the protection of fundamental human rights and to forget that it is also an experiment in self-government. As fundamental as the founding generation believed basic rights to be, they saw popular authority to make decisions about government as being even more central to the project in which they were engaged. They supported natural law and rights, but they felt strongly that those rights did not bind the people or their government unless they were inserted in the written Constitution. They did not contemplate that there would be unwritten limitations on the powers granted to government.

Contents:

Cover

Inherent Rights, the Written Constitution, and Popular Sovereignty

Contents

1 The Modern Debate over Inherent Constitutional Rights: What Is at Stake?

THE NINTH AMENDMENT

THE CONSTITUTION'S FOUNDATION

NOTES

2 State Constitutions in the Early American Republic: The Experiment with Republican Government

THE WRITTEN CONSTITUTION

Unwritten Principles of Law

The Importance of the Writing Grows

POPULAR SOVEREIGNTY AND LEGISLATIVE POWER

The Power of the People

The Key Assumption

The People as All-Powerful

THE DECLARATIONS OF RIGHTS

Popular Power to Establish Rights

Bills of Rights and Republican Government

A Special Category of Norms?

The Power to Amend Declarations of Rights

Qualifying Inalienable Rights

SEPARATION OF POWERS AND GOVERNMENT STRUCTURE

The Omission of Rights

3 Constitutional Practice in the Confederation Period: The Search for Effective Limits on Legislative Power

THE PROBLEM OF LEGISLATIVE EXCESS

Remedies and Reforms

Refining Popular Sovereignty

The National Government

The Doctrine of Judicial Review and the Sources of Constitutional Decision Making

THE CONFEDERATION-ERA CASES

Rutgers v. Waddington

Trevett v. Weeden

The Symsbury Case

Holmes v. Walton

Bayard and Caton

THE DEBATE OVER JUDICIAL POWER

Competing Theories of Judicial Review

The Lack of a Clear Consensus during the Confederation Period

James Iredell-Did He Resolve the Issue?

The Centrality of the Written Constitution

4 The Decision at the Philadelphia Convention: The Federal System as Bill of Rights

THE TENTH AMENDMENT AS A GUARANTEE OF FUNDAMENTAL RIGHTS

The Text of the Tenth Amendment

The Mischief to Which the Tenth Amendment was Addressed

The "Remedy" Embodied in the Tenth Amendment.

FUNDAMENTAL RIGHTS AND THE "PROPER" SCOPE OF THE NECESSARY AND PROPER CLAUSE

The Text of the Necessary and Proper Clause

The Purpose of the Necessary and Proper Clause

THE SWEEPING CLAUSE AND THE FRAMERS' CONCEPT OF LIMITED FEDERAL POWERS

The Limited Powers Scheme and the Arguments against the Necessity of a Bill of Rights

James Madison and the Necessary and Proper Clause

The Threat to Rights Presented by a Bill of Rights

The Sweeping Clause, the Bill of Rights, and the Balance between Government "Energy" and the Protection of Individual Rights

Civil Juries and Standing Armies: The Rights Omitted

The Content of the Bill of Rights: The Rights Not Added

STATE POWER TO CREATE AND PROTECT FUNDAMENTAL RIGHTS FROM FEDERAL INTRUSION

5 The Ratification-Era Debate over the Omission of a Bill of Rights: The Constitution as Fundamental Positive Law

THE WRITTEN CONSTITUTION AS THE SUPREME LAW OF THE POPULAR SOVEREIGN

The Invented Constitution?

Supremacy, Popular Sovereignty, and the Structure of Federalism-Innovations or Adaptations?

Popular Sovereignty and the Scope of the People's Constitutive Power

THE DEBATE OVER THE NECESSITY OF A BILL OF RIGHTS

The Argument from General Constitutional Theory and Constitutional Design

Modern Responses to the Antifederalist Argument

The Federalist Response Based on the Unique Nature of the Federal Constitution

Arguing that the Federalist Defense Rested on the Idea of Implied Limits on Congress' Powers

NATURAL AND INALIENABLE RIGHTS AND THE NINTH AMENDMENT

THE FEDERALIST CLAIM THAT A BILL OF RIGHTS WOULD PRESENT A DANGER TO RIGHTS

Modern Misreadings of the Federalist Argument

Understanding the Federalist "Argument of Danger"

THE DRAFTING AND RATIFICATION PROCESS: FULFILLMENT OR REVISION?

The Ratification Debate in Virginia

NOTES.

6 The Ninth Amendment and Modern Constitutional Theory

THE NINTH AND TENTH AMENDMENTS

A LIMITED NATIONAL GOVERNMENT AND UNENUMERATED RIGHTS

THE NINTH AMENDMENT AND NATURAL RIGHTS

Bibliography

MONOGRAPHS

ARTICLES AND BOOK SECTIONS

Index

About the Author.

Notes:

Bibliographic Level Mode of Issuance: Monograph

Includes bibliographical references (p. [175]-183) and index.

ISBN:

9798400670329

9780313001109

0313001103

OCLC:

49870048