...it appears in our books, that in many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.
In the United States, Supreme Court recognition of unenumerated rights has been the norm since shortly after our Constitution was ratified, except for the short "footnote four" period during the pathological New Deal Court. Four heroic justices fought against the stripping of "mere economic" property and contract rights, and illegal expansion of federal powers, undertaken during the New Deal.
Unfortuneately (in hindsight, given the later replacement of natural law philosophy and demotion of common law to statutory law) rather than invoking the Ninth Amendment, unenumerated rights were at first justified by the Court as a matter of natural rights. In Calder v. Bull (1798) Justice Chase, voting with a unanimous Court, wrote:
There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles, in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An ACT of the Legislature (for I cannot call it a law), contrary to the great first principles of the socical compact, cannot be considered a rightful exercise of the legislative authority.
In the later legal positivist era they were classified as substantive liberties under the Due Process Clause.
Infamies such as Korematsu occurred soon after the New Deal Court rejected the idea of unenumerated rights. This absolutist approach was itself effectively rejected when Griswold found an unenumerated right of privacy implied by the "penumbras" and "emanations" of the enumerated Bill of Rights. The right of privacy was later classified as a substantive liberty under the Due Process Clause.
Justice Thomas, among some others, believe that unenumerated rights are incorporated under the Privileges and Immunities Clause of the 14th Amendment.
Justice Thomas is only one vote. And the post Civil War Slaughterhouse Cases effectively strangled the Privileges and Immunities Clause as a source of unenumerated rights. Tragic, really...
Unenumerated Rights Vs. the Commerce Clause:
If you're an ardent believer of enumerated rights--a limited central government with only certain powers and functions, the remaining powers and functions being rights belonging to the people--then the biggest problem lingering from 20th century jurisprudence seems to be the expansive view of the Commerce Clause.
The Commerce Clause essentially allows Congress to legislate in any area that affects interstate commerce. However, according to a broad economic perspective, almost anything can affect interstate commerce. Hence, Congress can legislate ib any area it chooses.
Thus, if Congress can legislate anything, how do you determine when it's gone too far? How do you determine when its impeded on too many unenumerated rights?
The challenge of 21st century jurisprudence is to find that balance.
Would signing an instrument "Without Prejudice" along with a signature reserve one's Common Law rights?
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