Inherent Rights, the Written Constitution, and Popular Sovereignty (Hardcover)

Thomas B. McAffee

ISBN 10: 0313315078 / ISBN 13: 9780313315077

Published by Bloomsbury Publishing Plc, Westport, 2000

About this Item

Hardcover. 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. 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. This item is printed on demand. Shipping may be from our UK warehouse or from our Australian or US warehouses, depending on stock availability.

Seller Inventory # 9780313315077

Bibliographic Details

• Title: Inherent Rights, the Written Constitution, and Popular Sovereignty (Hardcover)
• Publisher: Bloomsbury Publishing Plc, Westport
• Publication Date: 2000
• Language: English
• ISBN 10: 0313315078
• ISBN 13: 9780313315077
• Binding: Hardcover
• Condition: new

About this title

Synopsis

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.

About the Author

THOMAS B. MCAFFEE is Professor of Law at the University of Nevada, Las Vegas./e He has also taught at the Southern Illinois University Law School and at the University of Utah College of Law. He has published widely on topics related to American constitutional law, theory, and history.