Rick Duncan wrote:
To foillow up on my response to Marc's question about the 9th Amendment, it seems to me that good examples of unenumerated liberties within the meaning of the 9th Amendment are school choice laws enacted in the states and state RFRAs. When states act to protect liberty--either through state constitutions or state legislation--they act to protect rights recognized (but not created) by the 9th Amendment.
I would submit that the founders believed that all rights are recognized but not created. The founding premise of this nation is that we are all endowed with rights which pre-exist governments and that the purpose for which governments are formed is for the protection of those rights. All rights, therefore, are recognized by government, not created by government. The constitution is "a charter of power granted by liberty, not a charter of liberty granted by power", as Madison said.
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