Geo Will continues his seminar on the Constitution

In this class session, Will discusses the meaning of the 9th Amendment and the “presumption of liberty”.

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Of course, the Supreme Court has completed gutted both the 9th and 10th Amendments, but Will provides powerful arguments for reinstating the 9th Amendment’s  very important protection for economic liberty.

How did America reach the point where aspiring entrepreneurs, seeking to improve their lot by improving other people’s choices, must approach government on bended knee to beg it to confer upon them a right – the right to compete? How did America stray from its foundational principle that government exists to protect pre-existing rights, not to apportion such rights as it creates and chooses to bestow? Read on.

In an 1873 decision, the Supreme Court (divided 5-4) defined Americans’ “privileges or immunities” – the 14th Amendment’s language meaning rights – narrowly. The court recognized only a few rights, mostly essential to national citizenship, and not including economic liberty.

In 1938, the court bowed to the progressive desire to empower government to allocate wealth and opportunity. The court decided – without citing a supportive constitutional text, there being none – that economic liberty should be assigned a status markedly inferior to that of “fundamental” liberties. This spurious dichotomy jettisoned America’s natural rights tradition reflected in the Ninth Amendment’s protection of unenumerated rights “retained by the people.”

Will describes the case of two brothers in Washington state who are fighting a state imposed monopoly.  This problem is rampant in NC.  Witness the huge fight over hospitals that was discussed in a multi-part series in the N&O.  At the heart of this matter is the Certificate of Need law that grants a government enforced cartel to the major hospitals.  See Roy Cordato’s excellent analysis of the CON law here.
In North Carolina and 34 other states, if you are a health care entrepreneur and you want to do anything from adding a new wing or extra beds to an existing hospital, to opening an office that offers MRI or other services, you need a “Certificate of Need” from the state. If this sounds like the kind of central planning one might find in a socialist economy – it is. In North Carolina, the central planning authority is known as the Health Planning Development Agency, part of the North Carolina Department of Health and Human Services. The role of this agency is to plan economic activity provided by medical-care facilities. This is done down to the most minute detail, circumventing the most basic function of private decision-making in a free enterprise system, i.e., the allocation of resources based on entrepreneurial insight and risk taking.
For more on the meaning of the 9th Amendment and the idea that the Founders wrote a Constitution that recognized that we have the “presumption of liberty” see Georgetown University professor Randy Barnett”s excellent book “Restoring the Constitution: The Presumption of Liberty.”

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