norml21 - Page 69
Page 69
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individual rights that was the primary concern of the Founding
Fathers in building limits into our system of constitutional
government. The Bill of Rights specifies certain rights of the
people. The Ninth Amendment is an iteration of the principle
that other individual interests may not be abridged by
implication° A dangerous increase in legislative power and abuse
would result if it were concluded that only the enumerated rights
were protected from arbitrary government encroachment°
Presumptive constitutionality should not be relied upon for
complete abdication of the task of review with regard to laws
made under the power to protect 'Ppublic morality and public
welfares" The total rejection by state or federal authorities of
the need to show facts justifying the interference in the life
and choices of the individual cannot be tolerated under
responsible government° The review of factual and empirical
evidence justifying a legislative enactment and establishing its
actual_ rather than "presumed _' rationality, is implicit in a
society of limited and responsible government° Such government
must scrutinize amorphous power which is subject to abuse. We
have inherited from the common law the concept of police power°
The police power, largely in implied or "residuary" power, is,
when proclaimed in its broadest sense, a great challenge to the
concept of limited government. Increasingly, our courts have
been concluding that criminal sanctions long tolerated under the
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