How do Textualists deal with the 9th Amendment?

Great Debates
81

I’m not really sure why you care to defend this–since, to put my response in the same manner as yours:

Does the tenth amendment have anything to do with enumerating rights?

A: Yes, through some unclear mechanism.

B: No, article V defines how you amend the constitution to enumerate rights.

That’s a simple, textual contention. The fact that a power is, in part, allocated to state legislatures has nothing to do with whether that allocation is pursuant to the tenth amendment or some other constitutional provision. Further, state legislatures and congress are not “the states, or the people.” So, to put it mildly, the tenth has nothing to do with amending the constitution.

Your question is rhetorical, but to go ahead anyway,

And which of those three amends the constitution? A: false disjunction. None of the above amends the constitution individually–it is not, as you imply, “the states, or the people.”

In this case, we don’t need to do anything more than read the plain text of the constitution to prove you wrong–an argument I’m sure you’ll appreciate.

Regardless of whether the amendment is by convention or by submission to the states, congress is necessary. Plain text of article V. That, on its own, is enough to take the tenth out of the picture–since the power is, in part, allocated to an arm of the federal government.

And the power isn’t allocated to “the states, or the people”–it is, in part, allocated to state legislatures. Different than the Tenth.

82

I will point out that you are falling into exactly the error that the Ninth Amendment is meant to forestall - disparaging rights because they are not enumerated.

Regards,
Shodan

83

So then you’re saying the Federal government is bound to protect unenumerated rights? Which is it? Can’t have it both ways.

84

It is NOT the source of any specific substantive right. It is a rule of construction, a direction on how to read and apply the Constitution, and it was specifically designed to deny the expansion of the powers of the government. A simple reading of it shows that it is shapeless, without detail, to the point that it could exclude or include anything. It was NOT intended as a source for a specific right, nor could it be–it provides ZERO direction as to what those unenumerated rights might be.

Here was Madison’s original text, which might be of interest:

The Ninth prevents SCOTUS from dismissing a case where a state recognized and established a particular right on the grounds that such a right does not exist because the US Constitution doesn’t mention it. They may dismiss it on other grounds, but not because the right is not mentioned in the Constitution.

85

But then you’d have to go by the actual words of the Constitutional text!

By the way, what was the topic of this thread, anyway?

86

Poly, you seem to think that this is some sort of gotcha, but a textualist is neither confused nor troubled by the actual words of the Ninth. An originalist even less so, I would think. Or do you actually believe it provides the foundation for an argument for some specific right (not the existence of some shapeless category of unnamed rights) as evidenced by the actual words? Do you disagree with my prior post (and Madison, by the way)?

The Ninth is referenced in a SCOTUS decision like twice in the history of the country, both times idiotically. Except in instances where SCOTUS is particularly creative, even for them, a Ninth amendment argument is a non-starter. Whatever you’re arguing has a right in opposition that is just as justified by the Ninth, given the actual words, if that amendment forms the boundaries for the debate.

87

What specific constitutional protection would you invoke, I’m curious? Nothing but the Ninth?

88

The points you made in your previous post: it’s a rule of construction, it guarantees (with one debatably constitutional exception) that the Feds. will take official notice of rights recognized by state constitutions and statutes and that rights can be recognized by Federal statute (cf. the Civil Rights Acts). These are all valid.

Nor does the Ninth sitting in splendid isolation guarantee any particular rights. This is why it is not specifically referenced in Federal rights jurisprudence.

However, there are rights recognized at law that are not enumerated anywhere in the Constitution. Does the right to privacy, taken in the broadest sense of the term, exist? Yes, certainly: it’s inferred by provisions of the First, Fourth, Fifth, and Fourteenth Amendments. What its limits are is of course subject to dispute, but that it does protect you, your home, etc., from unreasonable, warrantless searches and seizures by government agents without probable cause, is not. That you have the right to choose with whom you will associate (and by extension, with whom you will not). That you have the right not to be compelled to provide answers to questions when they might be used to incriminate you. That you have the right to autonomy in private relationships. These are constituent elements of a vaguely conceptualized right to privacy that we can nail down. You have the right to contract marriage with another willing party, subject to particularized limitations. You have the right to travel and to relocate. You have the right to use contraception to prevent an unwanted pregnancy, and if you (being a woman) nonetheless become pregnant without your intent and consent, you have the right to terminate that pregnancy. To what passage in the Constitution may we point to show those rights are guaranteed? One might argue that they are elements of the “liberty” which with life and property you may not be deprived of without due process of law, certainly. But one may equally well argue that they are unenumerated rights which the courts were forced to recognize in particular controversies coming before them.

Certainly what one court decision recognized, another may reverse. But this would fly in the face of stare decisis, decades of precedent, and could actually occasion a real Ninth Amendment case, as the reversal of those precedents would in fact be the denial or disparagement of a right hitherto recognized.

89

With regard to search and seizure? The 4th. With regard to self-incrimination? The 5th. Beyond that, for the examples you provided, there is by and large no constitutional protection (Justices less wise than I have opined otherwise, of course ;)). States get to decide what privacy rights are, and by and large, they do quite nicely restricting people from peeking in windows and rifling through personal records. If some state decides that Peeping Tom laws are overbearing and people should be able to exercise this “right,” it’s none of my business. It would never, of course, actually be proposed as law.

If a given jurisdiction (to use an extreme example) decides that marriage is an institution that no longer best serves them, the Feds can’t (or shouldn’t be able to) help someone who disagrees. It’s silly, of course. Because the self-correcting control is that any idiot who installed such a law would be bounced out on his ass, and the law quickly repealed. No such safeguard exists when SCOTUS creates a right.

It is tautologically obvious to me–if a right is so self-evident and absolute, why does a given state think otherwise? Why do the Feds get to trump what a given jurisdiction decides is best for itself when the Constitution is silent on such a matter? When there is nothing in the words of the Constitution to give SCOTUS’s opinion weight, who made them the philosopher-kings who get to decide their sensibilities are the proper ones? My answer (obviously) is that no one did–in fact, the Constitution (an output of the legislature, not the judiciary) specifically restricts this, in that this power resides in the legislature–though SCOTUS often can’t restrain itself.

90

Almost right. Yes, there can be rights recognized at law that are not enumerated. No, those rights cannot be created by the federal government, even by the Supreme Court. That is because of the Tenth Amendment, as discussed.

Regards,
Shodan

91

The states, or the people, decide which rights are to be protected, and by whom. Enumerated rights are under the protection of the federal government, either by ratification or amendment of the Constitution. Other rights are under the control of the states, or the people. The states, or the people, decide if they exist, and how they are to be protected.

As mentioned earlier, you are falling into the fallacy that Madison wanted to forestall - that of disparaging rights because they are not enumerated in the Constitution. There are other ways of handling them beside fiat of the Supreme Court, and those other ways are Constitutional.

Regards,
Shodan

92

Do you feel that state governments should also decide if you can have your First or your Second or your Fifth Amendment rights? If not, why do you think the state governments should be able to decide what Ninth Amendment rights you should have? The Ninth Amendment doesn’t give the states that power. And if the Tenth Amendment overrides the text of the Ninth, doesn’t it also override the text of other Amendments?

93

States don’t get to install law that runs afoul of the U.S. Constitution. So, no, they don’t get to decide if first amendment rights are in play. And, once again, the ninth was not designed to do anything more than limit the expansion of Federal power and deny SCOTUS from dismissing a right because it wasn’t enumerated.

The 10th amendment gives all powers not specifically cited in the Constitution as belonging to the Feds to the States. That would include the power to legislate in any manner they see fit, so long as that legislation does not create any constitutional concerns. Here’s the part that seems to be so confounding–a constitutional concern need find its basis in the duly ratified words of the U.S. Constitution. Otherwise, the 10th amendments restrictions are meaningless. It’s a tidy little syllogism. Our founding fathers were smart dudes.

94

Sigh. See post 47. Trying to argue logic with someone who is using the “textualist” buzzword is akin to arguing logic with someone who is a Biblical literalist.

To sum up several of the above rhetorical questions, no, incorporation isn’t part of the text of the Constitution. The state of Connecticut can completely eviscerate your right to free speech. The state of Wyoming can quarter troops in your house. The state of California can prohibit private citizens from owning a firearm. The state of Ohio can authorize torture for misdemeanors.

The role of the judiciary in determining constitutionality does not exist in the text. The text of the Constitution guides legislatures in passing laws–if they say that every student must receive the Eucharist in order to receive Federal funds, there is no Constitutional provision to invalidate the law.

95

Sigh away, sparky. Asserting there’s no basis for or logic in textualism isn’t the same as actually making such a point. I agree that SCOTUS determining constitutionality is not in the text. I think it’s a vital role, but should have been installed via amendment. But, like myriad other constitutional violations, that ship has long since sailed.

Is your larger point, then, that anything goes?

96

No, my larger point is that using the term “textualist” is **as inane **as saying that everything goes.

97

Only if you’re being pedantic (I know, ironic, a textualist chiding someone for being pedantic). I try to be realistically textualist–let’s get as close to the simple meaning in the text as the circus we currently have permits. It’s tilting at windmills to pine for a return to constitutional purity, though that would be my preference. But at least within the bastardized structures, roles and processes we find ourselves operating in, it’s not too much to ask that we base decisions on the actual words in the document, as opposed to vibrations we detect in the ether or our Spider-sense or whatever it is that leads SCOTUS to make shit up out of whole cloth.

98

No, this goes completely counter to the text of the Constitution. The Ninth Amendment is quite clear - there are unenumerated constitutional rights and they are reserved to the people. There is nothing in the text that says or implies that states (or the federal government) get to give or take away Ninth Amendment rights.

If the Tenth Amendment gives a state the power to take away a Ninth Amendment right then it also gives a state the power to take away a First Amendment right or a Second Amendment right or any other constitutional right. And that means there’s no point in saying the people have any constitutional rights - it’s all an issue of what powers the state governments have and what powers the federal government has.

Your interpretation is counter to the text of the Constitution and self-contradictory.

99

The right of privacy. The right to make one’s own reproductive decisions. Unenumerated rights which you textualists don’t seem to think exist, but which I believe the 9th Amendment protects.

I answered your question, now answer mine:

Would a law requiring sterilization after two births be constitutional?

What about a law requiring us all to live in see-through houses? (So as to make law enforcement easier, of course.)

Or a law prohibiting citizens from moving from one state to another?

Answer please. (And not with another question.) Are those laws constitutional in your world?

100

If you argue based only on the ninth, good luck. I’d have to think about it. Short answer to your question is that it’s completely academic, since none of these will ever be passed as law. But I’ll play. Interstate travel is probably covered under Article 4: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” So a particular state restricting travel is probably verboten. If that doesn’t hold water, it’s probably constitutional. But it at least starts with something actually written in the text.

See-through houses to make law enforcement easier? Nope, law enforcement searches require due process–a warrant. This would be an attempt to circumvent that stated constitutional protection in the fourth amendment.

Sterilization? I can’t think of anything offhand that makes this unconstitutional, but I haven’t given it a lot of thought. A quick google shows that there have been SCOTUS decisions permitting forced sterilization, as well as restrictions against doing so in criminal sentences if it violates equal protection (say, by exempting white collar criminals). There were still 27 states with existing sterilization laws as of 1956, so that suggests to me that forced sterilization was not considered unconstitutional, though I would agree it certainly as a rule falls under the category of “shitty law.” But laws I find distasteful do not equate with laws I consider unconstitutional. And, to repeat, I am not even slightly worried that the fact that the Constitution permits this (or appears to) will lead to a law such as the one you’re offering as a hypothetical.