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          Judge Michael McConnell speaks about the Ninth Amendment

          Mirela Turc

          Issue date: 10/31/08 Section: News
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          Annually, the Case School of Law hosts the Sumner Canary Lecture, which is generously endowed by the family of Sumner Canary, a 1927 alumnus of the law school. Judge Canary was appointed to the Ohio Court of Appeals for the Eighth District, where he served from 1967 until his death in 1980. This year's speaker was Judge Michael W. McConnell, who has serves on the U.S. Court of Appeals for the 10th Circuit since 2002. The lecture was given on Oct. 15, and a webcast is available on the law school website.

          A graduate of the University of Chicago School of Law (1979), McConnell clerked for the late Justice William Brennan, worked for the U.S. Solicitor General's Office, and was a professor at the University of Chicago Law School. Since his appointment to the 10th Circuit, he teaches at the University of Utah College of Law, and has been a visiting professor at Harvard Law School and Stanford Law School.

          The topic for this year's lecture was "Natural Rights, Enumerated Rights, and the Ninth Amendment." McConnell began with a short history of the Bill of Rights, which became part of the Constitution in 1791. He pointed out that, as Locke and Hobbes explained, "natural rights are rights of persons in 'the state of nature,'" that is, before governments were established. He added, "The Bill doesn't create rights; it recognizes them." Briefly put, natural rights existed before positive or enumerated rights became realities.

          But the Founding Fathers had serious doubts about including any list of rights. As Alexander Hamilton explained in Federalist No. 84, an enumeration might be dangerous because any right not included in the list could be presumed not to be protected. McConnell elaborated that "it is simply not possible to make a list of natural rights." Yet the framers of the Constitution agreed that certain rights superseded any formal enumeration.

          Their solution to this conundrum was the Ninth Amendment, which reads, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others held by the people." "Others held by the people" refers to natural or retained rights under the Lockean social contract. The statement recognizes that certain rights are implicit in being human. Throughout its history, the Supreme Court has shied away from interpreting the Ninth Amendment, and has never stated exactly what rights are retained by the people. Yet the inclusion of this provision in the Bill of Rights underlies the importance of natural rights not enumerated.
          Continued...
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            Saqib Ali

            Saqib Ali

            posted 3/30/09 @ 1:42 PM EST

            An excellent and informative talk. The video of the entire session is available @
            http://www.youtube.com/watch?v=bLANRrZPm-k

            Some excerpts from the speech:


            "It is important to note that this idea of natural rights, the rights of a person in the state of nature is nothing at all like our modern conception of fundamental rights, alienable rights, human rights or constitutional rights. (Continued…)

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            In This Issue

            News

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            • Don't blow it all at once: financial tips for recent graduates
            • International student session to debut during 2010 orientation
            • Name That Place - 4/23/2010
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