On Thursday, Senator Ben Sasse focused his speech at CPAC on the Constitution. Interestingly, he did not shy away from praising a constitutional amendment long swatted aside by government.
No, not the Third Amendment: The Ninth Amendment. (The one that reminds government we have rights not enumerated in the Constitution.)
Over the past few months, Sasse has become a vocal proponent of making sure the Senate keeps the Constitution in mind.
“I urge you all to be Republican, to be conservative, and to be American, but it’s very important the way we rank order those three,” Sasse said before the conservative crowd, emphasizing he is American first, conservative second, and Republican third. “Although I am happily a Republican.”
Sasse used a C. S. Lewis to clarify his view. “You can only properly have affection for your cat, if you first recognize that the cat can’t be the first thing. If you think the cat might accidentally be God, you’ll never know God, nor will you understand the goodness of the gift of a creature that is a cat.”
He noted that President Obama’s administration has been bad for America, and suggested that the president doesn’t respect important American principles.
“We have had as our president a man who doesn’t pay respect to the separation of powers, to divided government. Which are things that our founders gave us on purpose. These are features, not bugs.”
In Sasse’s view, “government is not the thing that we aspire to.”
Sasse explained that through much of human history, the king had all the freedom and power and people were dependents. “And so if you wanted to do something, your passive assumption was prohibition. Unless you were expressly allowed to do it, you should assume you’re prohibited.” Sasse noted that America’s founders realized this was wrong. “The Constitution is just a list of powers that we decided to give the government. And when that list ends, the government has no further powers.”
Sasse also used a favorite analogy of scholars like Randy E. Barnett.
“And so there was a picture [our founders] had in their mind—imagine a tiny little island, surrounded by a giant ocean. Throughout human history, people have believed the island is your rights, and the ocean is the powers of government. And the American founders said this picture is exactly backwards. Because the island is the little set of enumerated powers we the people give the government, and the ocean is the limitless rights of people created with dignity.”
That analogy leads directly into the most notable part of Sasse’s comments—his views on the Ninth Amendment. “When you get to the Ninth and Tenth Amendment, what did they conclude by saying? There is no end to this list. The Ninth and Tenth Amendments say, any right not listed here is still a right for the people. And any power not given to the federal government here is still a power that the federal government doesn’t have.”
The Ninth Amendment has long been a point of contention among constitutional scholars. Conservative hero and Reagan nominee to the Supreme Court, Judge Robert Bork, famously said of the Ninth Amendment:
Barnett opposes this view, and believes we know exactly what the Ninth Amendment means. “[I]t means what it says.” Sasse seems to agree.
THE WEEKLY STANDARD asked Barnett about Sasse’s comments. “What constitutionalists in Congress like Senator Sasse need to back them up is a president who is vocally committed to the limits imposed on government by the Constitution, and judges with the guts to enforce them.”
