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The Observer

The Student Newspaper of Case Western Reserve University

Judge Michael McConnell speaks about the Ninth Amendment

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....

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Saqib Ali

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

An excellent and informative talk. The video of the entire session is available @

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. This is because the essence of the social contract is that we relinquish certain of our natural rights, most fundamentally the right to be a judge in our own case and use violence against others and we receive, in return, more effectual protection for certain of our rights, plus the enjoyment of positive rights, that is rights that are created by the by action of the political society. Civil rights are the rights we enjoy after entering the state of civil society. Some civil rights are also natural rights but now enjoying the more secure protection of the civil society. Some civil rights are purely positive. But the point is that you cannot assume that merely because something is a natural right that it is something which is immune to being invaded by the government. In fact the essence of the civil contract is to relinquish some natural rights in exchange of the protections of the civil society."

"[T]he boundary between the rights we retain and the rights we relinquish is determined not by logic or by nature or some sort of outside source but by agreement, by contract, by the social contract, by constitution making, by an actual act of the people. And this is what the constitution making was all about from a Lockean point of view -- determining which rights and powers we relinquish to society and which we retain. Now keep an eye on this word retained rights. Because as Brutus said, these are the natural rights that are not necessary to give up in order to attain the chosen ends of the government. Note also that individual rights and the government powers are reciprocal. We have the rights to do with our person and property whatever we wish short of injuring others unless we have given the government the power to abridge it."

"In a preconstitution world, where you don't have a written constitution or a bill of rights, rights exist, natural rights exist and they are legally enforceable, but they are not trumps. There background principles are default rules that can be displaced by positive law, but only where positive law is specific enough and explicit enough to indicate that the legislature really and truly intended for them to be displaced. Now constitutional rights would be different than this. When you have expressly enumerated constitutional rights, they have the same juridical status as expressly enumerated governmental powers and they are understood as limitations on the powers. Example: First words of the first amendment – Congress shall make no law abridging freedom of speech... The constitution has its logical form grants of powers and than certain restrictions on those powers, and those restrictions actually are legally enforceable restrictions. They are trumps. Hence, in our system, with respect to constitutional rights, the question is not did the legislature really and truly intended to invade them. We don't care. Because if it is a constitutional right than it prevails no matter how explicit, no matter how intentional the legislative action may be. Even if it is easier to keep the peace, if the government can prevent speakers from riling up the crowd, the first amendment prevents it. Even if it would facilitate the collection of taxes to search a merchant's warehouse without a warrant, the fourth amendment forbids it. Thus once rights are enumerated in the constitution we no longer merely ask whether there is explicit enough positive law within the enumerated powers to authorize a challenged governmental action, we also ask whether the challenged actions abridges or invades the enumerated freedom."
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In This Issue


  • A Conversation with Caroline Goulding
  • 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
  • Relay For Life raises $76,000, short of goal but not short of spirit
  • Student Leadership Award Winners
  • Tanning dangers abound as summer approaches
  • What Now?
  • Mass funding successful for some, headache for other organizations


  • Case falls to Wooster at Progressive Field
  • Spartan Spotlight: Obinna Nwanna
  • Spartans are optimistic heading into UAA's
  • Spartans extend win streak to six
  • Spartans snap long losing streak
  • The next step
  • Top 10 Spartan stories of 2009-2010


  • 2009-2010 Year in Review
  • Letter to the Editor: Straight Answers to Questions about Greek Life Funding
  • Living - and dying - on your own terms
  • The last hurrah: experiencing senior week
  • What are you doing this summer?


  • A final fling for finals
  • Despite an oppressive crowd and disappointing opener, Ben Folds continues to impress on stage
  • MaDaCol performance distinguishes dance as alternative communication medium
  • Parting word of advice: Express yourself
  • Springfest blowout to feature activities, student bands and national headlines
  • The best bars in Cleveland
  • Tri-C Jazz Festival features stunning jazz organ performance, among others



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