This was the crux of the debate between the Federalists and the Anti-Federalists in 1789. The Anti-Federalists insisted on what are sneeringly referred to as "negative rights" by today's Left, embodied in the Bill Of Rights. The Federalist position was perhaps best stated by Pennsylvania's James Wilson:
A proposition to adopt a measure that would have supposed that we were throwing into the general government every power not expressly reserved by the people, would have been spurned at; in that house, with the greatest indignation ... If we attempt an enumeration, every thing that is not enumerated is presumed to be given.Looking at the Left's astonishment that the Interstate Commerce Clause doesn't give Congress the power to force you to buy broccoli shows that Wilson was sadly wrong. Thankfully, the Anti-Federalists won, and the Bill of Rights is no longer dead.
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The fear was not really that the Federal government would infringe upon your rights. It was that the State sovereigns would. Unlike some of the historical revisionists now sitting on the Court, most of us know that every power not expressly given to the Federal Government was retained by the States (just to make that clear, the founders adopted the 10th Amendment). Since many of the founders were students of the enlightenment, the Bill of Rights was meant to recognize inherent individual rights and liberties that could not be infringed upon by any sovereign, be it a King, the Federal government or the States, which were the most powerful forces in America in 1789.
"the Bill of Rights was meant to recognize inherent individual rights and liberties that could not be infringed upon by any sovereign, be it a King, the Federal government or the States, which were the most powerful forces in America in 1789."
Yet it didn't take long at all for that interpretation to vanish, and that situation wasn't remedied until after the Civil War with the passage of the 14th Amendment - which was promptly neutered by SCOTUS, giving us the piecemeal idiocy of "incorporation" we have today.
The more time goes by, the more I line up with the Anti-Federalists.
"I smell a rat," indeed. Patrick Henry's second-best speech.
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