[rcollyer]

You're ignoring the 9th amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Essentially, the bill of rights was not intended to be exhaustive, nor could it be.

[jawns]

I'm quite aware of that amendment, but here's the problem.

Some of the founders were concerned that by listing out some rights in the Bill of Rights, they would be treated as an exhaustive list and used to deny other rights that were not explicitly listed. So Madison proposed the Ninth Amendment as a way of indicating that it's not an exhaustive list. We see this approach in a lot of modern legal contracts, where the phrase "including but not limited to" is used.

But the practical implication of this amendment is that it gives the judicial branch nearly carte blanche power to say what additional, unenumerated rights the Constitution does or doesn't protect. And once the court makes a pronouncement that an unenumerated right exists, the only way to overrule it is to ... you guessed it ... ratify an amendment!

But that creates a very strange setup. SCOTUS "discovers" these unenumerated rights because it's too difficult to get an amendment ratified -- but the sole check on their authority is ratifying an amendment to veto their ruling.

[_-david-_]

The problem is more the expansion of the government beyond what the Constitution allows not the expansion of the rights of people.

[rcollyer]

The constitution is remarkably vague about all manner of things. So, the argument that the "expansion of the government beyond what the Constitution allows" is really difficult to support on a textualist basis. What exactly did you have in mind?

[krrrh]

How about the following…

> to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

Being interpreted thusly…

> The government argued that if a single exception were made to the Controlled Substances Act, it would become unenforceable in practice. The government also contended that consuming one's locally grown marijuana for medical purposes affects the interstate market of marijuana and the federal government may thus regulate and prohibit such consumption.

> That argument stems from the landmark New Deal case Wickard v. Filburn, which held that the government may regulate personal cultivation and consumption of crops because of the aggregate effect of individual consumption on the government's legitimate statutory framework governing the interstate wheat market.

https://en.m.wikipedia.org/wiki/Gonzales_v._Raich

[Aerroon]

Wickard v. Filburn is crazy.

Filburn grew his own crops on his own land to feed his own animals. The government fined him under interstate commerce laws for growing too much wheat.

>The Court decided that Filburn's wheat-growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally, is thus interstate, and is therefore within the scope of the Commerce Clause.

https://en.wikipedia.org/wiki/Wickard_v._Filburn

[zimpenfish]

Counterpoints: https://lawyersgunsmon.wpengine.com/2015/05/keep-reading-mcc...

https://www.lawyersgunsmoneyblog.com/2015/05/it-is-hardly-la...

> Filburn was not a hobbyist growing a little food for his family[ ...] was someone with a commercial farm who [...] wanted to take advantage of federal price supports that allowed him to sell the wheat for more than twice the price it would command on the world market. While he wanted to take advantage of the federal guarantees, however, he wasn’t willing to comply with the federal regulations, which included a production quota that was a crucial element in the price supports

[Aerroon]

But surely interstate commerce should be about how much he can sell, rather than produce, no?

[krrrh]

Thomas’ dissent really brings home the point on textualist/originalist grounds.

> If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."

It’s worth adding that in addition to Justice Thomas, O’Conner and Rheinquist dissented on Raich and just a month ago Thomas noted how untenable the majority’s decision has become with regards to current law and practice around cannabis. The court was motivated to find a way to justify the federal governments blanket prohibition and produced bad law, and if the same case had come before them in 2021 it could very well have been decided differently, arguably under equal treatment provisions.

> Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Once comprehensive, the Federal Government's current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.

> …

> Yet, as petitioners recently discovered, legality under state law and the absence of federal criminal enforcement do not ensure equal treatment.

> …

> I could go on. Suffice it to say, the Federal Government's current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government's blanket prohibition in Raich. If the Government is now content to allow States to act "as laboratories" "'and try novel social and economic experiments,'" Raich, 545 U. S., at 42 (O'Connor, J., dissenting), then it might no longer have authority to intrude on "[t]he States' core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens." Ibid. A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government's piecemeal approach.

https://reason.com/volokh/2021/06/28/justice-thomas-decries-...

[escape_goat]

The problem is that on an individual, person to person basis, people like me owe people like you a respectful hearing of what you think America is and how you think it should be and understand - this is the important thing - how you got there before telling you that it never was and why it should never be. And just flip that to whichever one of us has the facts on their side. But we don't have those conversations. We only relate to each other insofar as we signal our political affiliations.

[escape_goat]

And it always matters, who you are and how you got there.