Amending the Constitution

[Sal_Ammoniac]

I’ve always wondered, as someone completely non-versed in the subject, why the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) isn’t the right one to deal with privacy. The framers recognized, clearly, that there were rights beyond what they enumerated, and privacy seems to be just this kind of right – a natural right, if you will, inherent in everyone equally.

[Gadarene]

I’ve always wondered, as someone completely non-versed in the subject, why the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) isn’t the right one to deal with privacy. The framers recognized, clearly, that there were rights beyond what they enumerated, and privacy seems to be just this kind of right – a natural right, if you will, inherent in everyone equally.

Short answer: because that interpretation of the Ninth Amendment would leave it so full of content as to be virtually content-free. What objective criteria could the courts or the legislatures use to determine which rights were meant to be protected by the Ninth Amendment, and which weren’t?

[Bricker]

@CandidGamera

I submit there is a fundamental difference between my desire for privacy and a desire for an ordered or moral society. The founding fathers didn’t enshrine it into the legal text, but at one point expressed a desire to create a nation giving citizens the rights to “life, liberty, and the pursuit of happiness”. I’m inclined to think the Privacy issue, then, was just an oversight on their part.

I might argue in return that there is no fundamental difference between your desire for privacy and a desire for an ordered or moral society. The founding fathers didn’t enshrine a mandate for an ordered or moral society into the legal text, but at one point expressed a desire to create a nation giving citizens the rights to “life, liberty, and the pursuit of happiness” - which of course can best be achieved by an ordered or moral society. I’m inclined to think, arguendo, the omission of text mentioning an ordered or moral society was just an oversight on their part.

And I’d love to see that happen. That’s the point of this OP. Not a Strict Constructionism vs. Loose Interpretation debate.

Well, I’m in favor of it too. I’m a fan of privacy, and of as little government interference as possible.

[CandidGamera]

@Bricker

Well, I’m in favor of it too. I’m a fan of privacy, and of as little government interference as possible.

Then feel free to start addressing the point of my OP at any point.

[Bricker]

@Gadarene

Okay. So as a textualist, how do you determine what words like “search,” “unreasonable,” or “equal protection” mean? Is legislative history, for example, utterly out? Are you a public choice guy?

There’s a spot in the Congressional Record in which one Senator notes that the committee report accompanying a particular piece of legislation was not created by any senator, voted on by any Senator, and could not be amended by any Senator – it was the work of staff, and there was no procedural mechanism by which to change it.

Legislative history is suspect, although I won’t go so far as to say it can never be used to divine meaning. But words in a law mean their common, ordinary meanings, within the context of the document and the subject. Only if they are utterly ambiguous should there be any inquiry beyond the four corners of the document.

While we’re talking about constitutional amendments, by the way, I’d still love your take to a point I made in the nuclear option thread awhile ago. You said that the courts had a valid countermajoritarian role – that statutes should be interpreted, when necessary, to give greater effect to the protection of political minorities than the text or history might suggest – but that courts shouldn’t act in a counter-supermajoritarian fashion. That is, courts shouldn’t read anything into constitutional amendments, because a) it’s tough enough to pass amendments anyway that one can presume the text wasn’t crafted carelessly, b) it’s much easier for Congress to remedy what it views as judicial misinterpretation of a statute than for the country to re-amend the constitution to clarify things, and c) the will of the supermajority is entitled to deference, even as against political minorities, in a way that the will of the majority or the plurality is not.

Yep.

My response was twofold. First, I said that political minorities oppressed at the hands of a supermajority are at least as functionally disenfranchised – if not moreso – as those at the hands of a majority. There’s even less chance that a superminority will be able to propound its views in the political arena (whether legislative or constitutional) and hope to effect substantive change by democratic means.

So what?

That’s what self-government MEANS. It means that when a minority’s desires are balanced against the desires of a supermajority, the supermajority’s desires in the area of legislation control. That means that if three-fourths of the class votes for cupcakes at the year-end party, your desire for tofu treats will be unanswered. Yes.

I’m very curious to ask you: can you enunciate precisely what self-governance means to you? How should the concept be implemented?

Second, and more importantly, I pointed out that if the courts don’t interpret amendments vigorously to provide protection for political minorities, then the political majority in Congress can use that judicial passivity to its own advantage, oppressing minorities in a way that wasn’t intended by the framers of the amendment…especially if the amendment contains words (like “reasonable”) that can be interpreted by reference to a shifting cultural standard. Thus, a future Congress could pass laws that interpret Amendment X in a particular way to negatively affect a political minority, but because Congress is using that amendment as a shield and because the amendment’s language is broad enough to rationally support Congressional interpretation, the court’s legitimate countermajoritarian role gets shut down. I’d love to get your read on that.

That’s where a healthy respect for stare decisis comes into play. Congress may shift directions in the future; that does not effect extant case law. Courts’ past interpretation of the meaning of “reasonable” in a given context should be binding on a future court.

[CandidGamera]

@Bricker

I might argue in return that there is no fundamental difference between your desire for privacy and a desire for an ordered or moral society. The founding fathers didn’t enshrine a mandate for an ordered or moral society into the legal text, but at one point expressed a desire to create a nation giving citizens the rights to “life, liberty, and the pursuit of happiness” - which of course can best be achieved by an ordered or moral society. I’m inclined to think, arguendo, the omission of text mentioning an ordered or moral society was just an oversight on their part.

Addressing this separately - originally, I was going to let it pass, but I must rebut.

Such an argument would be incorrect. A right to privacy is essential to the nature of liberty. It is the core of freedom. Order more often limits liberty. Morality as well.

A mandate for privacy imposes nothing on society at large except the fundamental tenet ‘you’re allowed to do what you want so long as you don’t interfere with your fellow citizens.’

A mandate for order or morality imposes “Don’t do this” type rules.

Consider a group of individuals, trying to determine a course of action. One man stands up, and declares himself leader. A second stands up, and declares that no, there must be a democratic process. It seems like from your argument above you’d say they’re both tyrannically imposing their will on the group - or at least, to an equal degree. But it is no limitation of liberty to “force” liberty upon someone. YMMV.

[Gadarene]

But words in a law mean their common, ordinary meanings, within the context of the document and the subject. Only if they are utterly ambiguous should there be any inquiry beyond the four corners of the document.

Hopefully this doesn’t come off as a non sequitur: do you think that the Administrative Procedures Act is unconstitutional?

That’s what self-government MEANS. It means that when a minority’s desires are balanced against the desires of a supermajority, the supermajority’s desires in the area of legislation control. That means that if three-fourths of the class votes for cupcakes at the year-end party, your desire for tofu treats will be unanswered. Yes.

Such innocuous terms are a little lily-gilding, aren’t they? If three-fourths of the country votes to abrogate my civil rights, my desire for judicial recourse should be unanswered, in your view?

I’m very curious to ask you: can you enunciate precisely what self-governance means to you? How should the concept be implemented?

I think there are sufficient correction mechanisms as to allow the judiciary to be a needed backstop for minority rights as against majorities or supermajorities while preserving a healthy federal republic. Do you want more detail?

That’s where a healthy respect for stare decisis comes into play. Congress may shift directions in the future; that does not effect extant case law. Courts’ past interpretation of the meaning of “reasonable” in a given context should be binding on a future court.

Um. One of us doesn’t understand the other. I’m presuming, given your desire that the court not act in a counter-supermajoritarian manner, that there is no caselaw that would deter Congress from implementing its own, more restrictive interpretation of the amendment.

Take a hypothetical equal protection clause. Let’s say that the Fourteenth Amendment has a clause securing equal protection as against state action, as it does today, but let’s further say that this clause can be read plausibly in one of two ways, given the text, the historical context, the legislative intent, etc. The first way is a narrow reading that says that the amendment, despite seemingly indiscriminate language, is meant only to apply to racial minorities. The second way is a broad reading that says that when the amendment says equal protection it means equal protection: as such, it applies to racial minorites, to persons of different genders or sexual orientations, to left-handers, and whoever else. From what I understand, you’d strongly advocate that the court adopt a narrow reading so as not to be unduly imputing to the supermajority an intent that isn’t there, given how hard it is for the supermajority to say, “No, you got it wrong.” But if the court does apply a narrow reading, then future Congresses are free to discriminate against, say, transsexuals without being worried about running afoul of the clause – even if it’s a plausible reading of the clause that transsexuals were meant to be protected. Hence my rule that the court should construe the protection of minorities broadly unless there’s clear intent to the contrary.

[Elendil_s_Heir]

OK, I’ll bite:

AMENDMENT XXVIII

1. Citizens of the United States have a right to privacy.
2. This right includes the right to be left alone; the right to adult consensual sexual activity and the right to control one’s own body, both as may be consistent with the criminal law; and the right to reasonably limit the collection, retention and use of personal information by others.
3. This right shall be respected by government, business and other individuals, and shall be enforceable against each.
4. Congress shall have power to enforce this article by appropriate legislation.

Have at it!

[CandidGamera]

@William V.

2. This right includes the right to be left alone; the right to adult consensual sexual activity and the right to control one’s own body, both as may be consistent with the criminal law;

Does this mean that, for example, a law criminalizing a particular sex act is okay, since the right is suspended if inconsistent with criminal law?

[Elendil_s_Heir]

Good question. The OP asked that the draft amendment be politically feasible, and I don’t think a Right to Privacy amendment to the U.S. Constitution that permitted or actually protected prostitution, for instance, would get anywhere.

If I were a judge interpreting the amendment (forgetting for a moment that I drafted it ), I would hold that Congress or a state legislature could not ban a particular sexual act between consenting adults, as that would be overly invasive of the right to privacy, and would serve no legitimate governmental interest.