No, this is silly. There is not some list of unenumerated rights. That’s what makes them unenumerated. There is not a single unenumerated right you could name where I couldn’t name another unenumerated right in opposition to it. “States can’t restrict unenumerated rights” is a meaningless assertion. There’s not some list you could point to, using the Ninth as your power to do so, where you could say, “Hey, you just eliminated an unenumerated right!” The same law could as easily be described as establishing a different unenumerated right. Seriously, Google it for about 10 seconds and you’ll see that the 9th was never intended (nor could it be, given the lack of detail in it) to be a source for a specific unenumerated right. A 9th amendment argument for “right X” is a non-starter.
Go on, give it a try. Make a “9th amendment only” argument for any right you’d care to assign it to. Identify some state law that violates the 9th alone, even a hypothetical law. Show your logic as to how the 9th alone supports your argument, but not the counter.
But now you’ve jumped to a different topic. There is a valid question about what rights are Ninth Amendment rights and there can be legitimate debate over whether any particular right is an unenumerated constitutional right or not. But that’s not the issue you’ve been debating up to this point - you’ve been arguing that there are no unenumurated rights.
And? I’m not sold on the idea that the 9th Amendment only acknowledges that the rights exist in some unenforcable, undefinable way. It’s more than simply “yeah, hey, there are these unenumerated rights, but we’re not really going to, ya know, actually let the federal government actually create, define, or protect them”. Saying they exist, but aren’t protected by the Constitution, is nigh but worthless.
In my view, the judiciary created a wholy unnecessary, tortured logic to do what the 9th Amendment clearly stood for, the protection of rights from unconstitutional infringement. Substantive due process was created, in part, to do what the 9th should have. The recognition of many of the rights under SDP, such as the rights to reproductive decisionmaking, the right to die, the right to privacy, and such, should/could have been handled under the 9th Amendment, but instead they created SDP. Same general goal, just by more tortured logic.
Hamlet, no offense intended, but the tortured logic in play here is that which continues to ignore the tonnage of available data that shows exactly what the the Ninth was intended to accomplish. It does protect unenumerated rights, but only to this extent: it does not permit SCOTUS to dismiss a case concerning a right that was not enumerated, because it was not enumerated. Period. That is a constitutional protection.
SDP is an abortion of a concept, the very textbook example of judicial activism. If this contains an element that provides a critical protection, that element should have been installed via amendment, not because a Judge sensed it lurking suspiciously in the shadows of a penumbra. But even if you love the idea, it has a fourteenth amendment foundation, not a ninth. I’ll say, I suspect not for the last time, that the Ninth is not the source of any specific substantive right. It lacks the detail–it can protect (or dismiss) ANYTHING. It was never intended to be the reference for a specific “right X,” whatever you’re sold on.
I honestly don’t understand why this is controversial. The most anti-textualist, “living document” scholars and Justices are not troubled by this definition, and they don’t need the Ninth at all to pull the most fanciful conclusions from their learned asses. SDP being one of them.
Plain view doctrine isn’t relevant when the state is the entity that compels you to place something in plain view. If the state demands you make evident something that would (without that compulsion) be private, they need a warrant. It’s right there in the fourth:
This would be a prima facie circumvention of that constitutional protection. One needn’t be an activist judge to rule that the authorities can’t compel you to show your private stuff without a warrant, and a law that did so would be struck down. Or so it seems to me. Again, feel free to take a crack at convincing SCOTUS. No telling what they’ll find convincing, the actual text of the Constitution notwithstanding.
Really? You think a textualist would find your interpretation of the ninth compelling, one that helps support the unenumerated rights you cited? Um, I don’t think so.
ETA: I thought I was responding to Hamlet. But the point stands.
Why however could I be offended by a simple dismissal. The “tonnage” of available data that you seem to see boils down to “the Supreme Court hasn’t said so”. Which is why I raised the SDP issue.
I don’t understand what you’re saying. I think I agree with you that the 9th Amendment means rights that aren’t enumerated can’t be “denied or disparaged” simply because they aren’t enumerated. But you seem to be intimating something else, like the judiciary shouldn’t actually be able to find statutes violate unenumerated rights. If I misunderstand, please correct me.
You misunderstand. I’m not saying SDP is based on the Ninth Amendment. I’m saying that part of what SDP accomplishes (constitutional protection for unenumerated rights) was what the Ninth was meant to cover also. But rather than rely on the Ninth, the judiciary used SDP, in part, to fill the void for what they were meant to be doing.
I agree that that is how the courts, with few exceptions, have been interpreting the Ninth Amendment. But I think the assertion that there must be a “source” of substantive rights in the text of the Ninth is precisely the thinking that the Ninth was meant to address. The Ninth doesn’t have to be the source of the rights that should be constitutionally protected because the founder realized that not every right that needed to be protected could be included in the Bill of Rights.
Hamlet, hopefully this clarifies. If someone looked to SCOTUS to strike down a law as unconstitutional solely because it protected an unenumerated right and therefore was unconstitutional, SCOTUS ought to dismiss that argument on a ninth amendment basis. The ninth is specifically there to prevent such an argument. And that’s it.
My problem with the judicary recognizing, via SDP or their Spider-sense, an unenumerated right is that by definition they are overruling what a duly elected legislature sees as the right that ought to be protected, and they are doing so based on their sensibilities alone. They are usurping the role of the legislatures who have the power and duty to protect the constituency that they serve, including rights that perhaps they alone recognize–so long as they violate no constitutional protection. Utah does not have to have the same anti-smoking laws as New York, not if they believe that the owner of a bar has the right to decide for himself. If SCOTUS were to rule that there is no right for a Utah owner to decide his bar’s smoking policy because such a right does not exist in the Constitution, they would be ignoring the ninth.
I do not believe the judiciary has the power to overrule a duly elected legislature without the weight of some specific constitutional prohibition. When they do, they become legislators. It’s not SCOTUS’s call as to what unenumerated right “wins.” Why do they carry more weight than the legislature they’re overruling, when there is nothing they can point to other than yet again detecting a right that was loitering about the place waiting for someone to take notice? If the right is so self-evident, why did the legislature come to a different conclusion?
I think the point that may not be clear is not that I think there are no unenumerated rights that deserve legal protection. I’m saying that SCOTUS ain’t the one to do so, because the only way they can is to assume a power (deciding what is Federal law when that law is not already specifically on the books, installed by a duly elected legislature) that the Constitution explicitly denies them.
Shodan, I agree with you and Stratocaster that the Ninth is not the source of any rights. It also doesn’t say that those unenumerated rights cannot be denied or disparaged. It only says that the enumeration of certain rights is not a basis on which to deny or disparage others.
I think it is perfectly clear that for the courts to recognize any unenumerated right, it must find some clear legal source for that right. Whether the USSC has met that bar sufficiently in all cases is certainly open to debate. As a pro-choice liberal, I’d be the first to admit that the reasoning in Roe v. Wade seems a little squishy, but I don’t think the Ninth Amendment is to blame.
I don’t think that all unenumerated rights are necessarily the exclusive purview of the states, however. Let’s take a an actual unenumerated right: citizenship. The Constitution mentions citizenship, but doesn’t define it, either at a national or state level. The Congress is given the power to establish rules for naturalization, but is not otherwise given the power to define citizenship or who is a “natural-born citizen.” Presumably, prior to the 14th Amendment, this was left up to the states, as I assume we agree. Correct?
But suppose a state had decided to do away with citizenship. It would recognize state residency, but not citizenship, and would recognize US citizenship only of those persons who were citizens of another state or who had become naturalized US citizens under federal law. No person in that state would be eligible to run for federal office, and the state would be unrepresented in the federal government. (If this seems implausible, suppose the state recognized the citizenship only of members of a certain small family.)
I think any reasonable person would agree that, although the original text of the Constitution doesn’t explicitly state that citizenship is a right (for rather obvious reasons, to wit, slavery), there is a right both to citizenship and to federal representation, applicable to at least some large portion of the populace, and that this right is strongly implied by the actual text of the US Constitution, by the intent of the Founders, and by English common law.
Surely even prior to the 14th Amendment if a state had abolished citizenship for its residents, this would be a case rightly heard by the federal courts, wouldn’t it? And surely you agree that the courts would be right in finding that such a right exists, based on at least one or more of the aforementioned possible sources. Wouldn’t you?
No, I wouldn’t agree. Prior to the 14th, states DID individually determine the definition of citizenship. Nothing in the Constitution prohibited it. That’s one of the reasons the 14th was ratified, which was the appropriate resolution for that circumstance.
Now, that it may be extraordinarily hard to identify what those rights are, and that the Ninth does not convert SCOTUS into an unelected legislature empowered to ‘create’ them, I can agree. But to make a supposedly textualist argument that the Ninth Amendment does not say what the words found within it explicitly say, verges on the absurd. SCOTUS IS the body empowered to strike down statutes, regulations, state constitutional provisions, etc., which fall afoul of the U.S. Constitution. And they are this by the logical inference of some very clear language – “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…” and “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” In short, if someone claims an Article 9 right, the Federal courts are the proper venue. Rights are not the gift of the beneficent Legislature, they are inherent in the individual. I have a personal opinion on how one distinguishes ‘real’ unenumerated rights from the bizarreries of some fringe nutcase – but this is probably not the right time and place to spell it out. What I maintain here is that a textualist must say there are unenumerated rights, and the Federal courts are the appropriate venue to resolve cases or controversies respecting claims to them.
So a state could have simply done away with it entirely?
Ok, what about a right established by federal statute? The US Congress has decided that workers engaged in interstate commerce have a statutory right to be paid at least the federal minimum wage. Even if you think that “workers engaged in interstate commerce” has been defined too broadly, surely that is an unenumerated right covered by the 9th Amendment (meaning that federal minimum wage laws are not invalid simply because the right to a minimum wage is not mentioned in the Constitution or Bill of Rights) and recognized at the federal level. It’s not something that anyone is likely to claim is a natural right, but it is still a right. Right?
It seems to me that the Ninth (and the rest of the Constitution) is silent on how the courts are to determine what unenumerated rights exist. But surely it is not inconsistent with the text or with textualism itself to believe that a natural right must be established under some form of legal reasoning in order to be recognized by the State. The First Amendment would seem to preclude “because God said so” as grounds for a legal ruling, after all.
I’m certainly willing to accept that most of the Founders thought that there were some rights (maybe even all rights) that were so obvious that any reasonable person would find them “self-evident” (to coin a phrase), but I don’t think that presumption is necessary to the text of the Ninth. (I suppose this is where a Textualist would disagree with an Originalist.)
They’ve made it one, in this example. If I set aside for the moment any concerns regarding how broadly they’re interpreting the text, they are acting in accordance with the commerce clause, which at least starts with the actual words. That clause doesn’t demand or prohibit them from using that power to effectively establish a right, but if they do so, it’s a secondary effect. As a practical matter, any law establishes some form of a right. (I agree with George Will, that the commerce clause is now elastic to the point of infinity.)
Nope, not really clarifying it. Are you saying that the 9th Amendment only protects Congressional laws that create, define, or protect rights from attacks that they are unconstitutional, but doesn’t protect the “others (rights) retained by the people” as it actually says? Seems like your reading ignores the clear language of the Amendment in favor for one that protects Congress’ powers, but not the people’s rights.
Again, you seem to think that the Constitution is there to make sure that the government has “power and duty to protect the constituency that they serve”, but not to protect the citizens from their government. I’m pretty sure that’s not the case, but, again, if I misunderstand you, let me know.
Now I’m even more confused, because it sounds like we agree again. If SCOTUS was to rule a right is not protected (the right to control smoking in your bar in your example) by the Constitution simply because it wasn’t enumerated, they would be wrong. I tend to agree.
But, again, that flies in the face of the Ninth Amendment. When you require that a right must be enumerated in the Constitution before it can be protected from infringement, you have to ignore the clear langauge of the Ninth Amendment, which says the non-enumeration of rights can’t be the only reason to deny or disparage them.
Sure it is. They decide when legislation violates someone’s Right to free speech, free exercise of religion, and the myriad of other rights enumerated in the Bill of Rights. The Ninth is there to make sure the fact those rights are enumerated, and “others retained by the people” aren’t isn’t the deciding factor in the Constitutionality of the act. The judiciary was designed, in part, to be a check on legislature’s actions against its people. It protects the rights of the minority from the tyranny of the majority. And, thanks to the Ninth Amendment, that includes not just the rights enumerated.
Do you really think that legislatures shouldn’t have a judicial check on their actions that violate the rights of its citizens? From Jim Crow, to anti-miscegenation. From sodomy laws to forced sterilization. From mandatory life saving medical actions to use of contraception. Legislatures have a long history of not seeing the “self evident” rights of its people (or, to be more precise, the rights of the minority of its people). Which is one of the reasons we have a judiciary to protect those people.
But had the founders wanted unenumerated rights to only be decided by the legislature, they would have said so. You seem to be reading the Ninth not as it is written, but as a limitation on the judiciary. I don’t think that’s supported by the language.