The Constitution was very carefully worded. There may have been good reason for the lack of perfect clarity.
The constitution works in mysterious ways?
Yes.
Sure.
Cite. The power to recognize a right is a power. The Constitution does not assign the power to enumerate previously unenumerated rights to the federal government. Therefore, that power belongs to the states, or the people. QED.
Notice, if you like, that Hamlet alleges that he’s right, and then immediately provides a quote that shows he isn’t. The argument that government has the power to enumerate rights disparages those rights, as Madison says. That’s exactly why the Ninth and Tenth Amendments are there - to make it clear that rights unenumerated in the Constitution are not thereby disparaged, and to define who gets to enumerate them.
The assertion that the Supreme Court gets to enumerate them is one of those cases where interpretation = contradiction.
Regards,
Shodan
Seems to be. Shodan over and over and over, simply repeats the 10th Amendment ad nauseum for his cite. He completely ignores that saying the Courts have the power to protect enumerated rights, but not unenumerated rights, flies directly in the face of the clear language of the 9th Amendment. One cannot “deny or disparage” a right any better by refusing to allow it to be protected. And, as Polycarp has stated, there is a huge difference between the rights language in the 9th and the powers language in the 10th. There are other arguments (including the quaint “power to enumerate rights not being in the Constitution” argument), and cites, in those other threads I linked to.
Not the specific issue of the difference between the judicial power and enumerated/unenumerated rights distinction that Shodan draws. Federalist 78 is the most applicable to the discussion. The closest is probably: “But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of.”
I don’t think the founders wanted any one branch to have that power. All three of the branches have the power and ability to interpret the Constitution. And, relevant to our discussion here, all three branches of government have the power to decide what rights are protected by the Constitution. It’s just that some people want to take that power away from the judiciary.
I’ll let a textualist answer that one. In my experience, they are as equally, if not more, troubled by the use of the 14th Amendment to protect unenumerated rights as they are about using the 9th.
Courts have rarely, if ever, quoted the Ninth Amendment as a source for a protected, unenumerated right. The courts have generally used the due process clause (generally of the 14th Amendment) or tried to tie the rights to other, enumerated rights to protect unenumerated rights. The Ninth has been rarely used or cited. But in Griswold v. Connecticut, the Court stated:
“The Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights… I do not mean to imply that the … Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government…While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement.”
Oddly enough, the district court in Roe (IIRC, don’t quote me) grounded the right to abortion to the Ninth Amendment. The Supremes found it in the 14th.
I think you’re right on the why the Court has not used the 9th as a source for rights: because a good part of the legitimacy of their rulings is grounded in judicial restraint. But I think the argument that Courts will suddenly go crazy and start protecting bizarre rights is little more than overheated rhetoric that ignores the past 200+ years of jurisprudence. Besides, the Court has found unenumerated rights to be protected from governmental intrusion (right to marry, right to terminate medical care, right to use procreation, etc), they just don’t use the 9th. To my mind, the Courts are doing what they should (protecting rights that aren’t specifically listed), they’re just doing it in a much more convoluted way.
It’s my understanding that the Constitution was indeed worded as such for a very important reason; to get it ratified. Lots of compromises and gray areas in order to accomplish that goal.
Thanks for all the discussion so far, folks. I was thinking back to my Civics course in high school, and wishing that we had spent a lot more time discussing the Constitution. It seems like one of those things that gets covered in only the most cursory fashion, yet could be really fascinating if presented properly, and if students were encouraged to argue/discuss/wrestle with some of this. Might make for more involved and educated voters.
It should be noted that this quotation is not from the Court’s opinion in Griswold, but was the opinion of Justice Goldberg, signed onto by Chief Justice Warren and Justice Brennan. There was no clear Court analysis, since the opinions on Griswold were so fractured (the “Court” opinion was written by Justice Douglas, but of the 7 justices voting in the majority, two stated specifically they were not in agreement with Justice Douglas’ reliance on “penumbras” and “emanations,” and Justice Goldberg added in his Ninth Amendment analysis). Later decisions of the Court citing Griswold have generally ignored the Ninth Amendment analysis of Justice Goldberg, relying instead upon Justice Harlan’s analysis of the 14th Amendment.
minty green educated me on it in this thread. You’re correct, the Ninth is simply a rule of construction, nothing more, which was crystal clear to the man who wrote the text, Madison. It prevents the SC from dismissing a right recognized by a state if that dismissal is based solely on the fact that the US Constitution does not enumerate it. Period. It is, effectively, direction as to how to read the Constitution. It is not a source of any substantive right. It was specifically devised also to ensure that the powers delegated by the Constitution would not be expanded. Ironic, then, that some would see it as a tool to do just the opposite.
And a simple read of it shows that this must be so–the amendment is so broad and non-specific that one could use it to “recognize” or ignore virtually any right one could imagine. It is shapeless in that regard to the point of being useless. Using those words alone, what boundary can you draw around the set of rights? None. Or any that you please, take your pick.
And Shodan is absolutely right. The states alone have the power to establish (or dismiss) rights, so long as they do not run afoul of an enumerated right in the US Constitution. How do we know they have that power? The tenth amendment, as was pointed out. The USSC has no power to establish any right–only the legislature does (again, within the bounds of the Constitution). The only thing the judiciary has the power to “recognize” is the validity of a right established by a given state, and only to the extent that the Constitution provides clear direction in its–and I know this is a terrible notion to many–actual words. Detecting the presence of a right by feeling its vibration in the Force has become a go-to strategy for some on the Court; the fact that they can does not make it proper.
God forbid I question minty’s interpretation, or your interpretation of minty’s responses, but I think you take it way to far. Even if we agree that the 9th isn’t a “source of any substantive right”, that doesn’t mean that the only rights the 9th were referring to were ones already recognized by the States. Without getting into the minutiae of the evidence, I will simply point to this paper. It makes it pretty clear that the idea that the “rights retained by the people” only refers to the rights recognized by the states is … well not all that well supported. The article includes quotes like: "“The committee who framed this report proceeded on the principle that these rights belonged to the people; they conceived them to be inherent; and all that they meant to provide against was
their being infringed by the Government.” and ties much of the debate about natural or inalienable rights (as opposed to only rights already granted by the State’s as minty and you assert) by states: “In choosing among the proposed models of the Ninth Amendment, this exchange is telling, especially when combined with the Federalist objection to enumerating any rights, which is directly linked to Madison’s stated rationale for the Ninth Amendment. None of the three congressmen make any reference to state constitutional or common law rights (though, of course, the right to wear a hat and to go to bed when one thinks proper is protected by the common law governing person and property). The state law rights model does not fit well with this exchange, an exchange that goes unmentioned in Caplan’s article.”
I’ll simply repeat myself: “But I think the argument that Courts will suddenly go crazy and start protecting bizarre rights is little more than overheated rhetoric that ignores the past 200+ years of jurisprudence. Besides, the Court has found unenumerated rights to be protected from governmental intrusion (right to marry, right to terminate medical care, right to use procreation, etc), they just don’t use the 9th. To my mind, the Courts are doing what they should (protecting rights that aren’t specifically listed), they’re just doing it in a much more convoluted way.” And, to be honest, I find the handwringing over a runaway judiciary that creates shapeless rights out of whole cloth to be little more than strawmen. Every single person of repute that I’ve ever read has agreed that the recognition and protection of unenumerated rights should (and does) have serious limits. Hell, just use the tests the Supreme Court has used to determine whether an asserted right is fundamental or not to determine it if you like. But this constant use of the hyperbole of a runaway judiciary is getting really annoying.
IF you view the Constitution in the way that some do, then the examples you list of rights found to be protected via the concept of “liberty” as used in the Fifth and Fourteenth Amendments are already examples of a “runaway” judiciary, because they would not be found to exist absent an express amendment to the constitution establishing their existence.
And frankly, the excesses of the liberal Court of the 60s and 70s gives one reason for pause. Frankly put, there is no constitutional right to abort a fetus, and the decision finding one is an example of exactly the “runaway” judiciary that you claim to be hyperbole.
Which is not to say that there should be laws against abortion, just that the federal government is not constitutionally prevented from making such laws. If we want a right of privacy, we should do nationally what the California Constitution does and expressly state that it exists by amendment.
And how many of those reach the point of establishing a right to a government given home or any of the hundreds of other bogeymen or rights raised? If you ask me, which I think you did, the unenumerated rights that have been rightly protected (medical decision-making, contraception, marriage, et. al) greatly outweigh those that that are much more troubling (abortion). Which do you think would have worked out better for our society and more in line with the founder’s theory of natural rights, only protecting those that are enumerated and giving up the rest, or perhaps one example of overreaching?
The problem with the analysis of the abortion caselaw isn’t finding the right of a woman to control her own body… there is, to my mind, no question about that (feel free to explain why you disagree). The problem is that finding that right outweighs the state interest in protecting potential human life. Again, do you think that the founders thought a person doesn’t have a right to make their own choices about their medical treatment (it’s not enumerated)? To me, it’s a no brainer. And it’s also a no brainer to the founders, knowing that it would be impossible to enumerate all the rights that people have, who wrote the 9th Amendment to deal with that.
But, once again, couching the debate over the recognition of the truth of the 9th Amendment only in terms of abortion and ignoring the myriad of other rights that have been recognized, does a disservice to the debate.
Which, once again, ignores the clear wording of the 9th Amendment. The founders knew that some people would think that, by enumerating certain rights, others would not be protected. Which is exactly what you are proposing. So they wrote the 9th Amendment to make sure that rights that weren’t enumerated wouldn’t be “denied or disparaged” simply because they weren’t listed.
But we agree on one point, the States, Congress, the President, and most importantly the people, all have a role to play in defining and protecting rights. And States, Congress, the President, and the people SHOULD all enact such rights. But cutting the judiciary out of the group that gets to decide what rights are protected flies in the face of the separation of powers and checks and balances that were so important to our Constitution. I see nothing in the Constitution that supports the idea that on one of the most important roles of government (defining and protecting the rights of people), that one branch (the judiciary) has no role unless that right is specifically listed in the text.
Regards,
Shodan
I can quote the constitution too. As Shodan has repeatedly pointed out, the tenth amendment only applies to powers NOT granted anywhere else in the constitution.
So let’s look at Article III, shall we?
If someone claims their constitutional rights are violated, that is a case arising under the constitution. Even a textualist ought to admit that.
One thing Shodan doesn’t seem to realize is that courts can, and do often rule for the party opposing the claim that the constitution protects a certain right–there are two sides, and both can win. It is as important for the supreme court to be able to rule that a right is not protected under the constitution (especially if a lower, or state court has held the constitution grants that right) as it is to allow it to protect them.
The problem is that coming to SCOTUS, it’s the same case–in each, someone sues, claiming their rights are violated under (among other things), the ninth amendment. If SCOTUS has the power to interpret the ninth amendment to say it does not protect some right, it also has the power to hold the right exists.
Or, SHODAN, do you feel that the supreme court cannot hear a case by (say) the state of Utah, interpreting the ninth amendment to the United States Constitution to hold that I have the right to jelly donuts? It would appear to me to be its job to hear, and reverse that case.
Am I good or what?
Certainly I do.
Their Constitutional rights. Because the clause refers to cases rising under this Constitution. It does not say cases arising from rights not enumerated in this Constitution. IOW, the Constitution does not assign the power of defining new rights to the Supreme Court. If it did, it would say ‘all cases about rights, whether enumerated or not’. Or it would have added to the Ninth something about “the Supreme Court shall have the power to enforce this thru appropriate rulings”, as it often does about Congress in other amendments.
It is more important that they rule that a right which is not enumerated is not the business of the federal government, because that is what the Constitution says. And the Supreme Court is sworn to uphold the Constitution. Whenever the Supremes grab a power for themselves which is not explicitly assigned to them, such as the power to enumerate rights, they are violating that oath.
Sure it’s their job. It is the job of the Supreme Court to hear and reverse it (or rather, to overturn it without a hearing). It is not their job to hear and establish it.
Certainly they have the power to hear the case. But they also have the obligation to abide by their sworn duty to the Constitution, and overrule any and all cases attempting to enumerate a right outside the authority of the states, or the people.
Any case wherein someone asserts a right to jelly donuts under the Constitution needs to begin by citing the specific part of the Constitution that brings protection of a right to jelly donuts under the purview of the federal government. If you can’t do that, your case is rejected out of hand.
You have to say that your right to jelly donuts is protected under the First Amendment, because there is a clause in the Federalist Papers saying that pastries are necessary to free speech. Or that you don’t have jelly donuts because the military is quartered in your bakery and has eaten them all without paying you. Or something like that.
And none of this nonsense about emanations and penumbrae and moose turds like that. Some indication. from the writings of the Founding Fathers or some kind of hard chain of evidence that this specific new right is necessarily included in the ones already enumerated. And not the general welfare clause either. The way the Constitution works to bring about the general welfare is by establishing the duties and limits of the federal government. The way to use the Constitution to improve the general welfare in new ways is to amend it. Not to misinterpret it, or to contradict its plain text.
Regards,
Shodan
Or what.
The Constitution is the supreme law of the land. It is, therefore, absolutely definitive. If you choose to ignore it, this is yet another tacit admission that you have no arguments left.
Regards,
Shodan
I’ve never ignored the 10th. Neither has whorfin, Polycarp, or any of the dozens of other posts or posters, in this or the other threads, that you simply ignore. Like I said in my first post, we’ve danced this dance before, so I’ll simply repeat myself from the last time: "You’ve done what you always do, repeat the same crap over and over and over and pretend it means something. Just like your last post. You ignore points that prove you wrong, you don’t counter any arguments, you don’t answer questions. In short, you don’t engage in honest debate. This thread, just like our last one, and the one before that, and any thread you trot out your idiotic 10th Amendment argument. It’s what you do. It’s what you are. It is SHODAN. "
In other words, you got nothing.
Another Shodan misrepresentation. You’re getting entirely too predicable.
Well, that’s just what the person suing is claiming. They come into court, and claim that they have a right under the Ninth Amendment to the United States Constitution, and that someone violated it, and that they are due a remedy.
They may be wrong, but they can be making a claim very clearly claiming a violation of their rights under the ninth amendment.
Saying something like “All cases, in law and equity, arising under this constitution,” for example.
To put it another way, as a textualist, where do you find article III distinguishing between cases about rights and not about rights? About enumerated versus unenumerated rights? It’s not there. The TEXT says you need a case (which my hypothetical is), arising under the constitution (because that’s what the Plaintiff’s claim says). Article 9 may be talking about unenumerated rights, but (1) it is a part of the constitution, and (2) a claim that it has been violated is therefore a claim arising under the constitution.
Well, hell. I love your argument. If you need a clause like that to allow the Supreme Court to rule on cases on a constitutional amendment, then you admit that the Supreme Court was wrong to rule on the Second Amendment. Because there is NO SUCH CLAUSE in the second amendment.
In fact, there aren’t many amendments with such clauses. Or, really, any.
Now I’m not arguing they’re necessary. The language is in Art. III. But if you’re arguing such clauses are necessary for the ninth amendment, HOW DO YOU DISTINGUISH ALL THE OTHER AMENDMENTS?
Wait, what? Didn’t you just argue the supreme court has NO RIGHT to define, or interpret the ninth amendment? If they don’t have that power, THEY CAN’T HEAR THIS CASE EITHER.
Maybe I didn’t hear you right.
Oh.
What you don’t seem to get is that the case you say the SCOTUS can’t possibly have the power to hear, and the one that you say they certainly do have the power to hear ARE THE SAME CASE. IN EACH, SCOTUS IS DOING THE SAME THING.
It is interpreting the ninth amendment, and deciding whether the petitioner is due a remedy for his claim that his rights under the ninth were violated.
.
A/K/A “they have a right to hear the case if they get to the answer I want”
Well, if the supreme court has the power to hear the jelly donut case (and you admit they do), and the power to interpret what the ninth amendment means (and you admit they do–because that is what they’re doing in the jelly donut case), it turns out all that’s left is you disagree with their analysis.
Fortunately, the constitution gives you the authority to define how the constitution should be interpreted, right? Where is that in the text?
The fact of the matter is that the supreme court is correct BY DEFINITION when it interprets the constitution in a case it has jurisdiction over.
Which means that the court has the power to hear the case, and decide that the ninth amendment does not give an individual the right to jelly donuts. That’s exactly what you are saying they can’t do.
In the federalist papers? Let’s be clear–they’re not the constitution.
So, as a textualist, who has just been arguing a judge cannot TOUCH a right that is not EXPLICITLY ENUMERATED in the constitution, please explain to me what authority the federalist papers have?
That’s right, none. But if we can look outside the constitution to figure out what the first amendment means, why not the ninth?
I argue we can. There is no difference.
Or, maybe I’m wrong. If so, it should be easy for you to point out to me where the text of the constitution says we can look to the federalist papers to interpret I, but not IX. mething like that.
But those writings aren’t the text of the constitution. Surely you aren’t going to now conclude by arguing that we should be textualists, after saying we ought to look outside the text to INTERPRET what the CONSTITUTION MEANS? Would you?
I would argue I"m not the one doing that here.