But who is “we”? I hope you can see that this takes us right back to Rick’s point about creating rights through judicial fiat. If the states, through their various legislatures – the true field of simple democracy in our system – have not seen fit to create or extend those rights, why should the proverbial Nine Old Men step in and do so? They do not speak for the majority of America and never have. I find it a very dangerous proposition that Supreme Court justices might declare anything that suits them to be a “fundamental right” and shoehorn it back into the Constitution as being “unenumerated” but nevertheless “emenating” from the Ninth Amendment.
At their most simplistic level, rights come from one of two sources (IMO): they are either established through social consensus (“we hold these truths to be self-evident”) or their are inherent, coming from God or wherever the individual is comfortable thinking they come from (" . . . that they are endowed by their Creator . . ."). Rights do not – and should not – come from the minds of the U.S. Supreme Court just because those particular elite appointees happen to think something ought to be a right. This, IMO, is the flaw in “we know it when we see it;” if only they see it, then arguably it should not bind the rest of us.
Good point, Jodi. But what I was getting at (and I’m sure I’m not making myself clear) is that when some rulemaker (whether legislature or administrative body with rulemaking power) decides to trespass on something that the vast majority of Americans consider to be their right, the Ninth Amendment is there to protect it. Madison, Jefferson, and Adams never contemplated the need for a “right to travel” or a “right to privacy” per se; it was implicit in being a citizen of a free nation to them. Then circumstances changed and what had been evident needed to be spelled out. With the degree of judicial self-restraint the court usually brings to cases, I’m comfortable with it “discovering” a Ninth Amendment right every 40 years or so – when somebody has created some regulation that infringes on what seemed obviously a right to most reasonable people. Which, I suppose, gets right back to your point, that there is a lack of clarity there.
My proposition is that there is a lack of clarity in the extent of the Ninth Amendment because the Founding Fathers intended it to be nebulous – because somebody, somewhere was going to infringe on something they’d failed to enumerate that they would have listed if they had thought of it. Your point on the origin of rights supports this – maybe God knows what all they are, but neither the Founding Fathers nor SCOTUS, nor you or I, nor Edward Corwin’s successors, can specify them. But that does not mean that they do not exist. At some point in the 22nd Century, there will be some case that determines that each person has a right to his own identity, and that programming his personality into someone else’s computer without his consent violates that right. Or something else off the wall that impinges on something you or I cannot even conceive of at this point, but that we’d agree is obviously a basic right if we were faced with the question.
OK, I see some people are having some trouble with this concept. It is perfectly possible for a justice to rule that a perfectly stupid, boneheaded travesty of a law nevertheless does not violate the constitution and therefore they do not have the power to override the law even though they think it stinks.
Personally, I engage in sodomy all the time, it’s fun. I think having a law against it is stupid, and I’d vote against any person who passed a law against it and against any prosecutor who charged someone with it. If I lived in a state where sodomy was illegal I’d actively campaign to repeal the law. But that doesn’t neccesarily mean that sodomy laws are unconstitutional. Yes, of course our rights are inherent and are not granted by the constitution but rather guaranteed.
But not all bad laws are unconstitutional. We can imagine that every Justice who reviews a law that they disagree with imagines that the law has some flaws. At what point does the Justice decide that the law violates the 9th amendment? You can’t just throw out any old law you think sucks with the 9th amendment, so how does a bad law reach the point of violating our unenumerated rights? Sure, I can see the 9th guaranteeing my right not to be braintaped and cloned against my will, but what about my right to create an army of unstoppable atomic supermen? Sure, you may think that I shouldn’t be allowed to create atomic supermen, but where in the constitution is the government granted the power to regulate atomic superman armies? So we agree this can be a very gray area. Rather than blame the court for failing to strike down dumb laws, how about we blame the lawmakers for enacting dumb laws?
No one has a right to education. I interpret the phrases “due process” and “all persons” to mean that the state may not draw invidious distinctions between persons of different races. Georgia may decide to stop funding all education, but not all education for black children.
Well, fair enough. But if I contend that the right to public nudity is also one of the Ninth Amendment’s unenumerated rights, how then shall you refute me? You may haul out concerns about public decency (is that, by the way, another Ninth Amendment right? If so, what constitutes decency?) but in the end, we are merely debating whether a particular “right” seems like a good idea, and, if so, adding it to the Constitution by judicial fiat. (By the way… fiat means “a command or act of will that creates something without or as if without further effort; an authoritative determination,” and since it emanates from the judiciary, surely it’s not inappropriate to call such decisions judicial fiat.
Correct. When I said “interpret the law” above, I certainly meant that the laws passed by Congress and the states must be read in pari materia with the Constitution, giving, if possible, full effect to each and reading them in harmony with each other. But if an act of legislature clearly contravenes the Constitution, then obviously that document, being the supreme law of the land, would control.
No - that’s not so, as long as we we agree that “law” includes the Constitution. Interpreting the law, and discernig its intent, is exactly what the Supreme Court should do.
As I said, the Constitution is the supreme law of the land, and if a law violates a provision thereof, it is absolutely correct for the courts to strike it.
I think the Ninth Amendment has some effect, yes - but the opposite argument is also compelling - who is to say where its effects end? I say the Ninth Amendment includes the right of unborn children to protection from murder. The Supremes say it doesn’t. The elasticity of possible interpretations of the Ninth Amendment seems rather astonishing, to say the least.
Look at Furman v. Georgia. Three justices’ concurring opinions (Douglas, Brennan and Marshall) held that the death penalty itself constitutes “cruel and unusual” punishment. This despite the fact that it was accepted for years as a possible punishment. Now, no death penalty fan I. But in my view, again, it falls to the state legislatures to abolish the death penalty, not to the Supreme Court to fiat it our of existence… as they did in Furman, only to bring it back with Gregg v. Georgia. (By the way - Dougls’ opinion in Furman said that although he thought the death penalty was cruel and unusual, as that term is used in the Eighth Amendment, he believed the Court bound by earlier holdings that it wasn’t, and he confined his rationale on reversal to the issue of how it was applied unfairly).
The point, lest it get lost, is that we seemt o be perfectly content to grant to unelected leaders considerable power to “discover” rights. I certainly admit that some leeway must be given to the courts, but I am uncomfortable with the degree of legislative power the courts now wield.
You were perfectly clear, as usual. And I have no problem with the Ninth Amendment being used to protect something the “vast majority of Americans consider” a right. I am not agitating for its removal; I too think it is a necessary catch-all to underline that the Bill of Rights was never intended to be exhausted.
My problem is the potential for the Ninth Amendment to be used by the Court to create a new right that some segment of society might consider a right but another segment of society may not consider a right – when that “vast majority” is lacking, in other words. I, like Bricker, am troubled by the Supreme Court’s ability to create substantive law from whole cloth by pulling “discovered” rights out of the air and announcing that the “emenate” from the constitution. The creation of sustantive law, as opposed to its interpretation and construction, is the duty of the legislature, not the courts. But Recognizing that the Ninth Amendment is the Great Loophole of the Constitution does not mean that it ought to be abolished; it means that society out to take a hard look at the circumstances under which it’s invoked.
In the proceeding post, please change “exhausted” to “exhaustive;” “the” to “they;” and “bridegoon” to “bridegroom” (and a cookie to the person who gets that reference).
Bricker: Given your stated views, would I be correct in guessing that you hold a pretty favorable opinion of Felix Frankfurter and his jurisprudential philosophy?
(And hold these thoughts, guys; I want to start a Ninth Amendment thread tonight trying to reconcile that amendment with judicial constructionism.)
(I think Ben Franklin would have been right there with you arguing for the “right to get nekkid” BTW. Didn’t he used to be fond of “air baths” as he called them, where he would sprawl out nude in front of an open window?)
No, I understand the concept that Justices cannot create rights just fine. I’m just confused as to how one determines which rights are inherent. However, Jodi later posted that she was ok with having justices interpret rights that were agreed upon by concensus, and yet not enumerated. So that answered one of my questions. When I had posted I was thinking of rights such as having children, good health, marriage, etc.
It takes a majority to amend the Constitution, to elect a legislature, and the President. Where in this process is the minority afforded any protection from the majority, if not through the courts?
(I concentrated on foreign history while in college, so please humor my Constitutional ignorance.)
The courts can certainly protect the minority, consistent with the limits set forth by the majority.
If the Congress were to pass, and the states were to ratify, the Twenty-Eighth Amendment, and it said, “Nothing in this Constitution shall be construed as prohibiting the United States, or any state, from prohibiting the practice of abortion,” then no court should, henceforth, declare anti-abortion laws unconstitutional.
Now, to the extent that women desiring an abortion are a minority, they would have no protection in that scenario, apart from their on-going First Amendment right to protest the law.
In other words, the system, in the end, is responsive to the will of the majority.
So then what’s your beef? If you can convince the public that the Court has over-stepped its bounds in creating a “new” right, you can always overturn that “right” by amending the Constitution.
On the other hand, if you can’t convince the public to overturn the newly articulated right, then perhaps the Court was right in the first place in coming to the conclusion that the right does exist by public consensus.
OK, you might just have a valid point there. I still maintain the courts have no business usurping the legislature, but I agree there’s an ultimate, if somewhat drastic, fix available.
Note to self: contradicting one’s first point in order to answer a second point is not too bright.
Here in southeast Virginia, an interesting case has been featured in the local media lately. A woman named Arathi Jayaram has been ordered by the authorities to either marry her live-in boyfriend or find a separate place to live; apparently her current situation violates Virginia’s anti-fornication laws. An interesting twist to the story is that Jayaram is a member of PETA, and she is currently serving two years probation for hitting the US Agriculture Secretary in the face with a tofu cream pie.
My question is, does anybody know what the law is in Virginia regarding “fornication”? And what exactly constitutes fornication? Is it just “the deed”? What about third base? Second base? Holding hands? What if you are living together but not having sex (unlikely, I know, but still…)? Am I going to have to kick my girlfriend out of my apartment and start paying full rent?
Because if you look at the rights literally spelled out in the constitution, you really do not get the protection from the government you need to live freely. On a literal reading, the following laws would pass constitutional muster:
A law banning the playing of musical instruments [music is not speech, and certainly not political speech, which is really all the first amendment protects]
A law making it a crime to be left handed [Due process originally referred only the procedural due process, not substantive due process – the doctrine of substantive due process was fashioned in the 20th century by liberal justices. So if a law aganst left-handedness was passed, it would be fine as long as you were entitled to a trial on the issue. And Equal Protection (14 amenment) referred only to race or national origin, not to any other category. So left-handed people would not be protected]
Clearly, the constitution should protect minorities and people who have different lifestyles from the whims of the majority. On a literal reading, it doesn’t. Now, the majority will probably not pass laws agains the things I mentioned, so my worry may seem wrongheaded. But it certainly possible that such laws could be passed – let’s say the economy falls apart: who knows what kind of mass hysteria or crazy religious beliefs could infect the people and lead to the passage of persecutive laws. Not likely, but certainly possible. [Actually, in my view, we do actually have such laws today, such as, for example, laws regulating sexual behavior, which is clearly as important to most people as listening to music} And look, slavery and segregation were allowed under the literal reading of the constitution – it was only a strict constructionist court that allowed these evils to persist for so long. The legislatures did diddly-squat to change these evils. The role of the court is to step in and restain the legisalture. That is the whole point of having an independent judiciary.
The spirit of the constitution, and not the literal letter of the text, is what should govern the court’s role. Can you name an instance where the court’s fashioning of a right was not more enlightened than the whims of the legislature? The court is always progressive and helpful to the oppressed than the legislature. So an activist court is a good thing.
And I think the founding fathers understood that the court would interpret the constitution as time went by to more fully realixe the whole project of the constitution itdelf, which was after all to allow us to pursue our happiness free from gov’t intrusion.
And I have no problem with the Ninth Amendment being used to protect something the “vast majority of Americans consider” a right. I am not agitating for its removal; I too think it is a necessary catch-all to underline that the Bill of Rights was never intended to be exhausted.