The Danger of 'Positive Law' in the Bill of Rights; Bachmann Fails the Test

Good discussion material.

The concern among men like Alexander Hamilton and James Wilson was that people would come to think that they had rights only because they were set down, enacted in what was called the “posited” or positive law. As Wilson argued, the purpose of the Constitution was not to invent new rights, but to secure and enlarge the rights we already possessed by nature. It was perilous then to teach that we had only the rights set down in the positive law, and that the rights set down in the Constitution were somehow far more important than the rights that were left unmentioned.

Michele Bachmann fell into the trap of 'positivism,' which is the burden of the essay:

I raise all of this now because of the curious teachings marked off these days by that otherwise quite engaging and right-headed woman, Michele Bachmann. She is the most sincere pro-lifer, devoted to the commitments of marriage and family. When she was faced in a debate with the question of same-sex marriage enacted in New York, she insisted that New York had a clear authority under the Tenth Amendment to enact such a policy. She insisted, further, that as President of the United States, that could not be her business or a matter that made proper any commentary of her own. The Tenth Amendment read in this way: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Which is poppycock, but which DOES speak to Bachman's education and profession: lawyer.

Why would a president be barred from speaking on an issue of moral consequence that portends serious effects, rippling through the country? If New York instituted a one-child policy, with compulsory abortion, would a president have no occasion or rationale for speaking? Michele Bachmann was letting an infirm reading of the Constitution distract her from the constitutional and moral questions running deeper...

...Quite unwittingly, Bachmann seemed to be backing into the assumption of Judicial Supremacy. In the classic case of Marbury v. Madison, Chief Justice Marshall had never said that the courts possessed the sole, exclusive authority to reach judgments on the constitutionality of laws. In judging a particular case, and dealing with a statute, the judges would of course have to consider whether the statute was compatible with the fundamental law of the Constitution. But in that respect Marshall claimed no obligation or authority for judges that would not fall to any member of Congress or the president.

Arkes, the essayist, has more than adequate credentials on the question.

Bachmann should pay attention, rather than pander for attention.