Anger over 9th and 10th Amendments: Why?

Great Debates
41

To understand why that’s not right, you have to look at the original constitution as a whole.

One principle of interpreting it is that each part of the constitution was intended to mean something–so that a valid interpretation should not lead to the conclusion that a constitutional provision is meaningless.

First, you might suggest that the ninth amendment is talking about states’ ability to guarantee rights.

To answer this, you should look at the tenth amendment. That addresses the balance of power between states and the federal government. So while it isn’t at all crazy to suggest that the framers wanted to put in a provision saying that states retain powers not explicitly granted to the federal government, that’s the tenth amendment. So if that interpretation of the ninth amendment is correct, then the question is how itdoesn’t just read the ninth amendment to be duplicating the tenth and so meaningless?

Similarly, congress’ lawmaking power is found in Article I. If all the Ninth amendment is saying is that statutory “rights” can exist with statutory validity, all it’s saying is that congress can make laws. But Article I already says that. Again, that interpretation leaves the ninth amendment meaningless. (and it’s hard to imagine a statutory right as “inalienable”-as congress can just pass another statute and get rid of it).

Second, look at the text of the Ninth amendment. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

It’s comparing two groups of rights–one enumerated in the constitution, and others not enumerated in the constitution.

What’s important is that “others” is referring to the rights described in the first clause. The framers are in effect using the word RIGHT to apply to both the enumerated ones and the other ones.

It’s not saying “the enumeration in the constitution of certain rights shall not be construed to deny or disparage other things that aren’t rights”

I’d argue it’s unreasonable to argue that the framers meant “constitutional right” in the first clause, but meant something completely different when the second clause refers back to the exact same word in the first clause.

In understanding this, you have to understand what the framers meant by a “constitutional right.” In very broad terms, the framers understood the constitution to be a transfer of power from states to the federal government–and that the rights retained by the people were things the federal government couldn’t do. The original bill of rights was, in large part, just another part of the limitations on the power of the federal government.

James Madison proposed a few amendments that explicitly limited state powers. (they weren’t adopted), but what’s important is that the proposals began “No state shall violate…”–that the framers thought they had to specify that an amendment gave the right to stop a state from doing something (and implicitly, when they didn’t, all they limited was the federal government)

The application of the first ten amendments to the states didn’t happen till the fourteenth amendment came around in the 1860s (and was interpreted to incorporate the bill of rights much later)

42

On the other hand, one might suggest, by the time 9 & 10 came along, the FFs were sick of arguing and just tossed them in as the last ELSEIF and ELSE conditions treating issues as they fell through the preceding eight amendments. (Programming was not highly developed 220 years ago so they used QBASIC syntax. Be glad that they didn’t use GW-BASIC syntax or there’d be loads of line numbers in the Bill of Rights.)

Or they could be the “From this point you’re on your own,” and the “Fercryinoutloud! It’s not up to us! DEAL WITH IT!” amendments.

43

OK, I do agree with this. I just thought it was fair to give DS’s view a fair shake, to the extent I can understand and explain it.

I’d make one differentiation you seem to have missed – and which trips up Shodan every time we have this discussion.

The Ninth Amendment addresses rights – things that people may do as of right, without permission from anyone else, whatever their legal authority.

The Tenth Amendment addresses powers – it says, in essence, “States retain the power to do anything with two exceptions: (a) the things the Constitution explicitly forbids them to do, and (b) the things they have granted over to the Federal goverment exclusively in ratifying the Constitution.”

Of course, the power to restrict itself by guaranteeing rights is among the reserved powers – this is Shodan’s idée fixé when we talk rights, so far as I can tell.

For me, there’s a simple test to determine if something alleged to be a right is a Ninth Amendment right or not – state it in the broadest possible terms, then subject it to a reductio ad absurdam test, where a megalomaniac state that would never be permitted to exist in real life goes to an extreme. Then apply the appropriate procedural due process and equal protection tests to determine if your specific issue is an instance of a generalized right.

For example, may a state completely abolish marriage, dissolving involuntarily by fiat all existing marriages and forbidding anyone to marry? While legally possible, the idea should strike any sane American as a major subversion of liberty. The right to marry is therefore existent – may be regulated, to be sure; we don’t want Chester the Molester marrying a 12-year-old girl – but nonetheless a guaranteed right. (To avoid a major argument, we won’t deal with gay marriages here, just acknowledging that the right to marry is an existent, guaranteed right.) Likewise, may a state forbid its citizens to travel without permission from the state? You must remain in the community you find yourself in unless you get permission to go somewhere else? Again it’s unlikely this would not cause a furore – so the right to travel, and its concomitant the right to relocate, are guaranteed. Now, while most if not all places have public schools and even laws compelling attendance if not homeschooled, it’s at least plausible that the whole system could be abolished, and the onus to pay for a child’s education privately be put squarely on the parents. It would be a massive change from how things are done now – we might have tax credits for all school-age children – but it’s at least plausible that it could be done. So a right to an education is not constitutionally guaranteed (Federally, anyway; some states do guarantee it).

44

Actually we had that debate just last month. But, yeah, pretty much.

Yes, and we’ve seen how well that works in practice. Once the Supreme Court says that an unenumerated right exists the issue is dropped and nobody ever disputes their authority to make those decisons.

45

I’ve had that same debate with Shodan, and made the same point–and as you note, there is a clear difference (it was a while ago, but I’m sure you were in the same thread I was at some point).

I should have pointed the difference in terminology out here–but my point, which I know you see, was pointing out that the thing DS’s argument claims the ninth is there to protect (whether we correctly call it a power or argumentatively dispute it’s different) is the thing the tenth amendment is protecting on its face.

Your last point is the logical leap necessary–what you need to protect to protect the state right to declare rights is not the right themselves, but the power to declare what rights people possess against the state.

i’m not sure I agree with your test for what ninth amendment rights are–but I think we agree that if it protects anything, it is a generalized right of liberty (even though that is found in part in due process, if you take the approach that all government acts are subject to rational-basis scrutiny).

Well, sure. But many of those people wouldn’t understand what a judge does if he hit them with a gavel, and are only objecting to “legislating” from the bench (or, if you please, creating binding interpretations of law, as a judge ought to) when it’s not the kind of legislating from the bench they like.

46

Because I’m a strict textualist and you’re lochnerizing.

Or more generally, if a justice invokes the Ninth to defend an unenumerated right he likes, he’s going to have a hard time complaining when another justice invokes the Ninth to defend an unenumerated right he dislikes. The Ninth is so broad in theory that it’s guaranteed to have something in it you’re going to oppose at some point. So most justices like to keep their options open on attacking the Ninth by never using it themselves.

47

I disagree…sort of.

Granted the 9th could be used for all sorts of things. It is rather wide open.

That said the SCOTUS can set parameters for its use (or so I would think). The SCOTUS set parameters on what free speech entails. It is not an absolute right.

A right to privacy is implied strongly in the text that is already in the Constitution. The framers just did not explicitly identify it.

A right to self defense is truly fundamental (I think it is a more fundamental right than free speech and am hard pressed to think anyone would disagree with that).

I have a problem with the SCOTUS attaching those rights to the Amendments they say they derive from. In essence they are re-writing the Constitution.

If they use the 9th however then the character of the text they drew the new right from remains unsullied.

The SCOTUS can limit the use of the 9th. To ignore it (and the tenth I suppose) is wrong. It IS a part of our Constitution. Inconvenient or not it seems anathema to just ignore it. Would just ignoring free speech be ok too if they found it problematical to implement? Of course not! They get paid to solve the tricky questions. They can earn their keep.

48

My point is that Supreme Court justices are always making this stuff up. That’s what the job is. You never see a case reach the Supreme Court asking if a thirty year old can be elected President or if a state can have three Senators. These questions are clearly answered in the Constitution so there’s no dispute.

What the Supreme Court gets are the questions where the answers are not clear. So they look the Constitution over and interpret it. And every case before them has two sides; each with its own interpretation. The Supreme Court picks one of those interpretations or creates an interpretation of its own. That’s its role.

Somebody like Scalia will claim he’s only reading what’s in the Constitution. But he’s interpreting it just like every other justice. Look at the Heller decision, for example: Scalia repeatedly claims he’s only following the most obvious meaning of the Second Amendment but how is the meaning more obvious to him than it is to Breyer or Stevens? The reality is they all have their own opinions on what the Second Amendment means. (And for the record, I personally happen to agree with Scalia’s opinion.)

49

I’d disagree. I’d argue that self-defense is a reactive right and free speech is a creative right and that creation is more important than reaction. I’d also argue that self-defense protects only one individual while speech can affect all of society. And finally, I’d argue that people can more readily rely on others to defend them than they can rely on others to speak for them. So I’d say free speech is a more fundamental right than self-defense.

50

I just have one comment -

It’s hard to say anything if you’re dead. Self defense (staying alive) has to take precedence. I’ve had people tell me to shut up (shocking, I know) and I get slightly annoyed. If anyone ever tried to kill me, i’d be VERY annoyed. :wink:

51

I’ve never truly understood this. A “strict textualist”, to me, means you give meaning to the text. And the text of the Ninth Amendment is pretty damn clear, the fact that certain rights are not enumerated in the Bill of Rights, can not be a reason to deny or disparage those rights. By requiring that a right be enumerated before it is protected does exactly the opposite of that.

I fully understand the fear people have of a runaway judiciary, randomly creating rights out of thin air to the detriment of … well to … hmmmmm, well … I’m sure there’s something bad about protecting rights. < This is a bit facetious, but only a bit. I doubt there will be, nor has there been, a widespread recognition of detrimental rights. So far, the only one I see is abortion and that’s not a matter of determination of rights, but the balancing of the right found.

So, by the text of the 9th, we know there are unenumerated rights and that those rights cannot be denied or disparaged simply because they are not listed. The question then becomes, I believe, who and how those rights are determined and protected. The answer to that is, and should be, all three branches of government, just like the founders intended. Cutting out the judiciary from determinations of rights and allowing the legislature or the States to be the only and final determiner of the protection of unenumerated rights, you have to ignore not just the Ninth Amendment, but also separation of powers, checks and balances, and the entire history of judicial review. I’m not willing to do that.

52

Everyone dies but words can endure. So protecting life, while a worthwhile act, is always ultimately futile. Protecting words, on the other hand, can work. Adams and Jefferson and Madison are all dead but their ideas are still alive.

53

People like to claim that the difference between conservative justices and liberal justices is a matter of process. Each side wants to claim that its justices are following the correct procedure and therefore the decisions they make are the correct ones, independant of their ideological values. But it’s no coincidence that their process always arrives where they wanted to be: you never see Samuel Alito finding that a careful textual analysis of the Constitution supports gun control or Ruth Ginsburg finding that the equitable interpretation of the Constitution prohibits abortion.

In my opinion, both sides are applying essentially the same process; any variation between them are too minor to effect the outcome. Alito, Roberts, Scalia, and Thomas are six of one and Breyer, Ginsburg, Souter, and Stevens are a half dozen of the other. Both groups are making decisions based on their beliefs and neither side can claim that their opinions are truer than the other’s.

I have no problem with this. I don’t see why we need to maintain the fiction that all decisions are impartial presentations of pre-existing facts. Let’s acknowledge the truth that the justices are making decisions as informed individuals as to what the Constitution should be.

54

This is factually incorrect. Scalia often finds himself in “liberal” positions from a textualist analysis, especially in the area of rights of accused criminals. Stevens and Breyer both occasionally find themselves in “conservative” positions after examining legislative intent and wider constitutional principle. Recall that the vote in Bush v. Gore on whether there was an equal protection violation was 7-2. Hardly a partisan split.

Even Ginsburg and Thomas, probably to two most divergent justices politically, find common ground on plenty of contentious cases (so one or the other must be placing process above result in each case).

It is true that some high-profile cases split 5-4. But some don’t. And often when they do split that way, you can point to interpretive process reasons for why (though not always). You note gun control and abortion, but even on those issues it isn’t so clear-cut. Do you really think Kennedy is personally in favor of abortion?

55

Poly, did you have a particular thread/post in mind? Because I’ve just been re-reading the rather more comprehensive discussion we had of the whole concept back a few years here, and I don’t recall having made this argument, or having offered that concept. But I’m old, my memory fails, and I’m sure you are thinking about something in particular that I said… :smack:

56

Not some post in particular – it was a couple of years back, and I distinctly rememberr a lawyer that I would have sworn was you explaining roughly what I outlined above as a meaning commonly given the Ninth Amendment, implying if not overtly stating it was his own view. Sorry!