The entire reason there is a Ninth Amendment in the Constitution is to explain that this question is useless. You insist that the Constitution has to refer to a right (even if it doesn’t use the exact words) in the text before it can be judicially protected, but the Ninth Amendment was ratified specifically to counter that assertion. When they debated the Bill of Rights, many delegates were concerned that, by enumerating certain rights, other, not enumerated rights, would be unprotected. So they enacted the Ninth Amendment.
I’m not playing games, I, in a clever way, was simply pointing out the self-contraction in your post.
And you accuse me of playing semantic games? I do like the “spider sense” and “dairy product freedoms” for summing up what interpreting the Constitution entails though. Cute.
Did I go to fast? You stated: “The legislatures, then, get to determine that it’s verboten to peek in windows and read someone else’s medical records.” I responded by pointing out that it was not just the legislature that gets to determine those kinds of things, but that the judiciary does also. Seemed pretty evident to me.
No need to apologize to me for smashing down your own strawman.
We all agree the Constitution doesn’t cover everything. The founders knew that they couldn’t cover everything. So they created a system, a system with THREE branches of government, each with a part to play in checking and balancing the other branches. And they knew there would people, like yourself, who feel that if a right was not specifically listed in the Constitution, it wasn’t entitled to judicial protection like the rights that are enumerated. So they wrote and ratified the Ninth Amendment to tell you you are wrong.
And sometimes it is absolutely appropriate for SCOTUS to say “this is our concern, you guys are subject to the checks and balances of the Constitution, and the legislation violates the Constitution”.
I’m following with interest, and I generally agree with you here Stratocaster, but I have another question. You say that there is no constitutional basis for denying women and blacks the right to vote since the 14th should have guaranteed them equal protection (if I’m following correctly).
Obviously the writers of the 14th didn’t feel that way. In the later clause of the very same amendment they prescribed a penalty for a state that didn’t allow black males to vote. At least to me, it is implicit that the 14th amendment itself said, “It’s okay for a state to disallow a vote to black males so long as their representation in Congress is diminished accordingly.”
That same Congress (or a couple of years later) felt the need to pass the 15th amendment to grant the right to vote to blacks. It was later necessary to pass the 20th amendment to give women the right to vote.
I guess I’m saying that the phrase “equal protection” doesn’t mean what we think it means given the text of the very same amendment where it is used.
How am I making my point for you? While I agree we should not have needed new constitutional amendments to allow blacks and women the right to vote we did need those and those groups were marginalized politically for a long time. Even after blacks gained their rights many states continued to try their very best to prohibit blacks the right to vote via poll taxes and such. Hell, it wasn’t until the Voting Rights Act of 1973 (some 100 years after the 15th Amendment was ratified) that blacks achieved parity with whites nationwide when it came to the right to go vote. In the interim numerous states were denying them political access.
To you 100 years of disenfranchisement (after an amendment granting them the right to vote) and a lengthy battle for civil rights which cost numerous lives and other injustices is the system working? You do not see the tyranny of the majority at work there?
Heck, it is alive and well today in the effort to allow same-sex couples to marry.
Tyranny of the majority absolutely can and does occur in a democratic society.
“It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure.” --James Madison, Federalist Papers #51
First of all, there is a difference between incorporation of the rights in the Bill of Rights onto the states by the due process clause and using the clause to protect the privacy rights of women to have an abortion as they did so in Roe v. Wade.
In regards to protecting what is known as “liberty interests” in the due process clause of the 14th Amendment, the Court has relied upon what is commonly called substantive due process. Substantive due process, a judicially contrived notion not supported by the text of the due process clause in the 14th Amendment, or the 5th Amendment, looks to the activity or more crudely the thing regulated by state law (substance). If the activity or thing, i.e. liberty interest, is rendered a fundamental right by the Court, then the due process clause protects the right from state regulation under certain and particular circumstances.
In determining whether a liberty interest is a fundamental right the Court looks to the historical foundation of such a right and whether the right has a long standing tradition and/or protection. “First, the Court has regularly observed that the Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.” Moore v. East Cleveland, 431 U.S. 494.
Personally, I find substantive due process to be nothing short of judicial activism.
When it comes to incorporation of the rights in the Bill of Rights, the justices in the late 1800’s through at least the 1970’s, debated in decisions whether all of the rights in the Bill of Rights were incorporated onto the states. The Court, since the debate began, has refused to adopt a total incorporation view and has instead relied upon Justice Cardoza’s rationale for incorporation in the Palko v. Connecticut decision. Essentially, those rights in the Bill of Rights which are the “very essence of a scheme of ordered liberty” and necessary to a “fair and enlightened system of justice” were incorporated.
The impetus behind the idea for incorporating the rights in the Bill of Rights is in regards the man rendered by some as the Father of the Fourteenth Amendment, John Bingham. There is considerable historical evidence to support the idea the Privileges and Immunities Clause of the 14th Amendment was understood to incorporate those rights in the Bill of Rights onto the states. Bingham’s inspiration for this goal was Chief Justice Taney’s dictum in the Dredd Scott case that the rights in the Bill of Rights were rights belonging to citizens and enjoyed by citizens, and black, African Americans, and those of African American descent could not be citizens, they therefore did not enjoy these rights.
Bingham wanted to specifically overrule and reverse this by incorporating those rights in the Bill of Rights onto the states such that the states could not abridge them at all, not even when it came to blacks, Afrian Americans, and those of African American descent.
Of course, taking into consideration the context of the 14th Amendment, the debates, and other writings from this time, also support the notion of incorporation. Supreme Court Justice Felix Frankfurter wrote extensively some times in some of his opinions as to this history to support incorporation.
I’m not sure what point you think you’re countering. “Tyranny of the majority” is a nice sound bite, but it is also a bit subjective. I believe that if the majority installs as law something that runs afoul of a constitutional protection–you know, something actually in the words of the Constitution, not something they’ve detected floating mysteriously in the ether–then SCOTUS has a legitimate interest in the matter. If not, then it’s majority rule, none of their business. If SCOTUS ignores the words of the Constitution and effectively blesses laws that should not bear up under their scrutiny, relative to the plain English of the Constitution–I believe that has occurred, and you’ve provided examples–then that makes my point. SCOTUS is often less concerned with doing their duty than in being in service to a particular political orthodoxy, whatever it is.
Do you think I’m arguing that SCOTUS should always sit oin their hands? I’m not.
The 14th came after the war. I was referring more to civil rights violations that were permitted long after the war and long after the 15th. That said, horrendous societal sensibilities can permitted the sort of cognitive dissonance that gives its blessing to horrors that are prohibited by the Constitution, but it doesn’t change the plain English of the text itself (I’m more of a textualist than an originalist).
So I would see the 15th, for example, as redundant (technically) to the 14th but serving the useful purpose of sending a clear message, a cannon blast of sorts. But at least it didn’t contradict anything in its redundancy.
I think it’s unconstitutional, but I accept that this ship has long since sailed. At the very least, I hope they exercise this power using the actual text of the Constitution as the basis for their decisions. I think it’s an important function, by the way, but I think it should have been installed by way of amendment.
I’d have to read them both, study the analyses. I do realize that these questions are complex. Quick reaction is that both are flawed, but that Brown had the sounder basis (all that psychological stuff was irrelevant, I think; separate complex systems can never be truly equal). I guess the answer is, I’m not sure. Rehnquist made an argument long before he was justice that Plessy was actually the better reasoned, but I haven’t read the details of that memo (and he apparently distanced himself from it). But I do accept the fact that proper SCOTUS decisions can affirm shitty societal constructs and laws. There are idiotic laws that are constitutional.