In Original Intent and the Framers' Constitution, the following is written: (page 268)
Oddly enough, those who advocate a constitutional "jurisprudence of original intention" and assert that the Constitution "said what it meant and meant what it said," are the ones who most vigorously deny content to the Ninth Amendment and to the concept of a "living Constitution." Presumably, they would not swear fealty to a dead Constitution, not even to a static one of the sort endorsed by Chief Justice Roger Taney in the Dred Scott case. Nevertheless, they reject as absurd the idea that the Ninth Amendment could have been intended as a repository for newly discovered rights that activist judges embrace.
I bring this up because on the face of it, this is a very potent attack. Unless you know a little history, you're about to get steamrolled flat.
I titled this posting "The 9th amendment vs the living constitution", because in reality the 9th amendment contradicts the living constitution theorem. But you have to dig to know.
As simply as I can put it, the 9th amendment is in conflict with Woodrow Wilson's Living Constitution because all rights come from God. Yes, I mean the God of Jacob, Isaac, and Abraham. That's what the Founders believed, that's what I believe, and that's also what those who the author quoted above is impugning believe.(generally)
Without Natural Law and by extension Natural Rights, the 9th amendment is meaningless. Without Natural Law, the progressives are taking the 9th amendment out of context and engaging in a dishonest discussion that's intended to grant themselves advantage.
First off, government cannot grant rights. Read any one of the original bill of rights you want. Here's a transcript. It's to my benefit for you to read them. Not one of the bill of rights grants a right. You don't have freedom of speech because of the first amendment. You don't have protection from property seizure because of the fourth amendment. You don't have protection without due process because of the fifth amendment. The Bill of Rights does. Not. Grant. Rights. It's not the source.
All rights as written in the Bill of Rights come from the fact that they limit government while propping up the individual. Even the trial by jury, which is a device that is designed to take a baseball bat to government's knees in the context of how governments can and have used courts in the past. It's still rooted in "government shall not". Government shall not throw you into the Star Chamber.
I don't want to spend an excessive amount of time on John Locke, but that's who you should read for the quickest crash course into God's gifts. Locke wrote Two Treatises of Government, and he also wrote The Reasonableness of Christianity as delivered in the Scriptures. Consider reading them. One of those exists even as an audiobook.
Even Thomas Paine, who went off the deep-end in his support for the French Revolutionaries never went so far as to lose his grounding in the reality that governments cannot grant rights. He wrote:
It is a perversion of terms to say that a charter gives rights.
Next, and here's what's even more important, is that the activist judicial view is making the case that judges can invent rights and legislate from the bench.
Then why did the Founders even bother to write article 2? Why have a house and senate in the first place? Just have a president and judges and be done with it all. If judges can invent law, why is article 3 so short? Why isn't article 3 the longest article in the constitution? BTW, judges inventing new law is a form of constitutional amending, as even some who favor such activism will readily admit.(not all, but some)
But! Marbury vs Madison!
What about it? Just because Marshall wrote that "It is emphatically the duty of the Judicial Department to say what the law is.", do you really think that the full text of the Marbury ruling is 15 words long? That's what the progressives think. The progressives do absolutely believe that the Marbury ruling is 15 words wrong. But out here in the real world, we can all put the ruling into our word processors and see that it is nearly 10,000 words long.
Here is what else that John Marshall wrote in the Marbury case:
The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
He also wrote:
It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
As these paragraphs from the Marbury case make clear, Marshall places the courts below the constitution. John Marshall does not establish judicial supremacy, not in any shape or form. Moreover, Marshall clearly holds the constitution to be a special, extraordinary document. That's why it cannot be changed by ordinary means. Only extraordinary means.
Doesn't the constitution have article 5 for describing what those extraordinary means might look like or what qualifications and procedures to look for and follow? Yes, it does. And judges are not in there.
So not only should we abolish article 2 because the judges have that covered, but we should also abolish article 5 because the judges have that covered as well.
What other parts of the constitution do we not need, simply because we have 9 people wearing black robes who are more than glad to tell us what is best?
Besides, as Marshall brilliantly points out, the Constitution is mentioned first, and the laws are mentioned second in the supremacy clause. Aren't judges mentioned third? Ponder that for a minute. The judges are mentioned last. Third. What does that say to the judicial supremacist? Well, it doesn't say anything to them because they're unaware of the fact that the Marbury ruling is longer than 15 words. But in reality, judicial cases aren't mentioned in the supremacy clause because judges were not supposed to be a part of the legislative process at all.
The best thing any conservative could do is read the Marbury v. Madison case, it's not a terribly long read and its incredible just how big the lies are that progressives tell about it. They are utterly reliant upon the fact that so many won't take the time to read the text. Here is the text. The way progressives constantly bring up Marbury, you would think that the ruling benefits them when in fact, the Marbury ruling is extremely adverse to the progressives mental health. It's also very adverse to the idea that the 9th amendment somehow helps prop up the notion that we have a living and breathing constitutional document.
There is one thing, however, that the original author got correct.
Nevertheless, they reject as absurd the idea that the Ninth Amendment could have been intended as a repository for newly discovered rights that activist judges embrace.
By definition, all of God's rights have already been given. In other words, they're all old. God probably isn't waiting until 2052 to spring yet another new one on us. Surprise! More to the point, if we do get a new one it won't be these progressives who discover it, because government is their god. They would reject whatever was given.
We know God. He knows us. This relationship is over 2,000 years old (and those gifts were given long before that!), and we know the rights he granted are not anything like the rubbish that the progressives are peddling. "New rights" only serve one purpose: to put us all under the thumb of an increasingly out of control government.