I don’t know what point you’re making. The ninth says what it says. No one, me included, is inferring that there are not unenumerated rights.
I strongly disagree. If a state legislature installs a law, SCOTUS’s interest in that law should rightly be limited to some specific law established by a duly elected legislature (which would include the Constitution). If Federal law is silent on a matter, it is up to the legislature to fill that void if they choose to do so. If SCOTUS makes Federal law where none existed prior to that, they are usurping the role of the legislature. This is not generally about fringe nutcase. It’s a lower governing body establishing law that is not contradicted in any way by some higher governing law, with SCOTUS saying, “Our sensibilities, not yours, prevail.” At that point, they are making, not interpreting, law.
I gave you a specific example of the protection it provides (the Utah smoking laws). That is exactly the protection it provides, and it is the ONLY protection it could provide, since it gives ZERO direction as to what unenumerated rights deserve protection. (In addition to the fact that there are tons of data out there that shows that was exactly what the writers intended it to do.)
The government IS the people. The legislature in particular is the voice of the people. The duly elected legislature was put there specifically to serve that function. When they don’t they’re voted out, but the operating assumption is that the laws a state installs it does so in meeting the will of the electorate. You want to protect the people from themselves.
Where we seem to part company is that I assert this is the only constitutional protection the ninth provides. That’s it, nothing more.
I’m saying SCOTUS has nothing to support its determination of what unenumerated rights deserve protection.
I’m saying that judicial checks needs a specific textual foundation, otherwise the judiciary is legislating. It’s fine to say that the judiciary needs to protect unenumerated rights, but their power to do so is limited, and it certainly does not extend to the point where they get to make Federal law where no such law existed before.
It is the ONLY thing supported by the language. It can do nothing else but prevent SCOTUS from dismissing a right that was not enumerated. That’s what it says, and that’s what it should do!
“If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Federalist #78.
I think you seriously underestimated the founders’ views of creating a limited government and the protection of the rights of its people from said government.
I’m not following. If someone asserts that legislation violates his rights, the judiciary is empowered to decide the case, whether that right is enumerated or unenumerated. They cannot simply dismiss the person’s claim of right because the right wasn’t enumerated.
“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.”
Federalist Paper #78.
“Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true.”
Federalist #10.
Again, I think you underestimate the beliefs of the founders and their reliance on the writings of Tocqueville and Mill.
I suppose we could go on and on about the proper role of the judiciary in the protection of the rights of the people from governmental intrusion. There are certainly compelling arguments on both sides.
But I think you’re way off base in concluding that the 9th Amendment supports your theory of a limited judiciary, when the clear wording does nothing to support that (your repeated claims that it does notwithstanding).
It is a legitimate role of the judiciary to limit the legislature to those activities that are properly within their authority. When the legislature oversteps those bounds, it is certainly acting counter to the will of the people
Yes. That’s what the ninth guards against. It is the ONLY constitutional protection it provides.
Not sure why you think this counters some position I’ve taken.
I have the same reaction here.
The ninth assigns no power to the judiciary, it only limits it, and only in the manner I’ve described. Whatever powers the judiciary has, the ninth is not the source of them. My point is not that the ninth is the boundary that prevents judicial activism. My point is that neither is it the foundation for a limitless judiciary. Stated more emphatically, the ninth creates no judicial power, it expands the scope of judicial authority not at all. If the judiciary has authority to recognize unenumerated rights in contradiction of the legislature’s vision, it hasn’t gained it from the ninth. Whatever theory of a limited judiciary I may have, it is not principally a ninth amendment concept.
Oddly enough, the Constitution has included the Ninth Amendment for over 200 years. Is the Constitution a specific enough law to satisfy you?
SCOTUS makes Federal law with every decision it utters. It doesn’t create statute. You fail to distinguish between “law” the generic concept and “laws” the specific written provisions underlying much of law qua concept.
People who say “the courts should not make law” are generally either engaging in demagoguery or have no concept of how our legal system operates. They believe in a legislature with the foresight to nail down everything in advance and never make mistakes, never pass a law that infringes on anyone’s rights – despite almost daily newspaper headlines that show precisely the opposite.
Poly, then I’ll offer you the same opportunity to make a ninth amendment argument, even a hypothetical one, that stands on its own, edified by its 200 years of history. The law is tidy and specific and serves its purpose quite nicely, so I don’t know why you think I believe otherwise. The ninth is simply not the “tool in the toolkit” that some in this thread seem to think it. No one argues cases on a ninth amendment foundation, not either end of the “activist” spectrum.
I was reluctant to even respond, since I am apparently either ignorant or a demagogue. I am very familiar with what both senses of “making law” means; I have a different opinion apparently of what it must have as a foundation in making constitutional determinations, which is a very specific application of judicial powers. But in no instance is it appropriate for a judge to “make law” out of whole cloth, and for constitutional issues, I have the daft notion that rulings should have as a basis the words of the Constitution. That leads to no specific political outcome, by the way, so charges of demagoguery are interesting. Do you assume the text of the Constitution has a particular political party bias?
You also apparently are of the opinion that I don’t believe the courts have a role in determining if the legislature has stepped on someone’s rights, despite the fact that my contributions in this very thread contradict that. I’ll assume you just missed those posts and won’t infer any other motive or attribute of you.
You seem to be asserting that the judiciary has absolutely no role in the protection of unenumerated rights because that was left to “the will of the people”. I was simply pointing out that the judiciary protects not just enumerated rights, but unenumerated ones also, in part because of their role to protect the minority from the will of the majority.
The problem is, there is absolutely no language in the text of the Ninth that limits the judiciary. None. You’ve continued to assert there is, but I’m not seeing it anywhere. But at least I think I now understand your point better, and we can agree to disagree.
It’s Article II, Section 1 that confers the judicial power to the courts, not the Ninth Amendment. You seem to be asserting that the Ninth Amendment somehow actually works to limit that judicial power to only protect enumerated rights. I find no language whatsoever in the Ninth to reach that conclusion, in fact it states nigh but the opposite, that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Taking away the judicial power for unenumerated rights flies counter to the clear language of the Ninth, the checks and balances system, the fear of the tyranny of the majority, and the natural rights theories that were the basis for much of Constitutional thinking.
No. The Ninth’s only limitation on the judiciary is that they may not dismiss a case, or any aspect of a case, solely because it pertains to an unenumerated right. That is the only limitation it places on them. It likewise does not tell them how to recognize unenumerated rights, what their role is in assessing such rights, which unenumerated rights take precedent–in short, it tells them NOTHING with regard to unenumerated rights except that they cannot dismiss them out of hand solely based on the fact that they are not enumerated.
I do believe that the judiciary’s roles should not include any action that usurps the legislature’s authority or runs afoul of the Tenth. But that belief is not founded in the Ninth, which does really one thing, the same thing I’ve described continuously. My response was to several posters who believe the Ninth confers some specific power upon the judiciary with regard to unenumerated rights. It does not. If the judiciary has some power with regard to unenumerated rights, that power does not flow from the Ninth.
This non-dismissal concept; does it mean the person gets to argue his unenumerated rights were violated? Take, for example, someone files suit to challenge a law that makes it illegal to sell contraception on the basis that it violates his/her unenumerated right to control his/her reproductive capacity. The judge to you, cannot dismiss the case because the right isn’t enumerated, but also can’t agree with the plaintif? Have I got it?
I don’t know about Stratocaster, but I would argue that the court should agree with the plaintiff only if the plaintiff can produce some basis in law for supposing that there is a right to control his or her reproductive capacity.
The court can’t say “It’s not enumerated in the Bill of Rights, therefore you can’t possibly have such a right,” but the plaintiff likewise can’t say “It’s not enumerated in the Bill of Rights, therefore it must be an unenumerated right, and you have to protect it!” It is entirely possible that it isn’t a right under federal law at all. If it is a legal right, it may not be enumerated in the Bill of Rights or the Constitution, but it ought to have been enumerated or at least implied somewhere in legal theory, not just pulled out of the court’s ass because the plaintiff and the court think it should be a right.
I think Stratocaster and I might disagree on where the court can look to decide that there is a right that was unenumerated by the Bill of Rights, but we both agree that it can’t come from the Ninth Amendment itself.
ETA: Some of the Founders may have believed that such a right could be found by the court to derive from reason itself, or from natural law, or even from the Bible, but I don’t think even they would argue that such a right derives from the Ninth Amendment. I would also argue that subsequent developments in law, philosophy and theology make reason itself, natural law and the Bible all untenable as sources for legal rights.
What constitutional argument are you making? A 14th amendment one? What part of the constitution is in play, even if this specific right is not enumerated? As Alan Smithee points out, it is certainly not enough to assert a right. The Ninth does not permit the court to deny the right because it’s not enumerated. But it can deny it for other reasons. Being unenumerated does not make it invulnerable somehow, by virtue of the Ninth.
Not trying to be coy–what is the counter argument? What right does the restriction protect that deserves constitutional protection, if we can assume the legislators didn’t come up with this law out of malice alone? But (again in the interest of not appearing coy), my conclusion will likely come down to, “Let the local legislators decide how to balance conflicting rights for their constituency, so long as in doing so they do not violate a constitutional provision.” There needs to be some constitutional basis for the right in question, or SCOTUS should rightly say they have no interest in it. It’s not up to them.
Contraceptives were banned in the Connecicut for almost 100 years before SCOTUS discovered the right to privacy hiding somewhere in the back of a drawer. If this is a fundamental right, almost 100 years of elections and law (at least to the extent that this restriction was not repealed) didn’t get the memo. What exactly makes something a “fundamental right,” one that deserves legal protection? It’s whatever we decide, frankly. Even enumerated constitutional protections are the product of a duly elected legislature. There are always two sides arguing in front of SCOTUS who by definition are opposed.
Let’s consider the reverse. A state decides that there should be unfettered access to birth control, an access they safeguard with the weight of law. A fundamentalist group looks to have that law struck down, since it looks to protect a right that was not enumerated, and therefore that right is not constitutional. SCOTUS should send them on their way.
By the way, this leaves an enormous amount of complex questions for them to consider. What deserves first amendment protection? How should public forum cases be decided within a public university? Can the police “search” your house with technology that identifies heat patterns? Does a given sentence constitute cruel and unusual punishment? These cases require interpretation, and decisions may be rendered that decent people disagree with, but they all deal with constitutional issues that have a textual basis in the Constitution ratified by the legislature. We’ll still keep SCOTUS busy, don’t worry.
I agree. And Courts have used “implicit in the concept of ordered liberty”, "principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental”, “essential to the orderly pursuit of happiness by free men”, or “deeply rooted in this Nation’s history and tradition” to guide those kinds of determinations they need to make.
I’m not making an argument, I’m trying to figure out your position. You have repeatedly said that the Courts cannot dismiss a case simply because it involves an unenumerated rights, but then you also seem to be saying that the Courts are not allowed to recognize non-enumerated rights, that that should be left to the legislature. I’m trying to figure out how that works, because, to me, it sounds a lot like “they can’t dismiss the case, but they can’t actually protect the right either”.
So you would say that the anti-contraception law does not violate the Constitution? And that is because, why? Because it seems to me that it is because the right wasn’t enumerated in the Constitution. I suppose you could argue that it wasn’t fundamental enough to deserve protection, but then what would be fundamental enough for you? Procreation (no kids after one? Forced Sterilization of criminals?)? Refuse Medical Treatment (forced lifesaving). Are there any rights you would have the courts protect that aren’t enumerated?
By and large, I believe the only protection they can provide an unenumerated right is to not assess it unconstitutional on that basis alone, should someone challenge a law (assuming no other constitutional issue is in play).
According to you, the Ninth Amendment says Courts must not dismiss a case based on an unenumerated rights. And that the Ninth Amendment says the Court must not grant a case based on an unenumerated right. Doesn’t that strike you as … insanely self contradictory? The Court can’t dismiss the case, but can’t actually grant it either.
I never said it was crazy, I said it was wrong. And against the clear wording of the Ninth Amendment.
Just so I understand you, you believe that rights not enumerated in the Constitution cannot be protected by the judiciary. And the reason is because they aren’t enumerated. How does that not fly in the face of “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
I honestly don’t know which of those would apply to reproductive rights, and I’m not going to go back and look up which of them was used in which court cases.
I don’t have a legal education and I don’t pretend to, but I’ve been following constitutional law threads on the SDMB for 11 years. I think it is detrimental when uneducated individuals make legal arguments based on what they think are common-sense understandings of the law, so I usually avoid posting my legal opinions. Nevertheless, there’s no real case law based on the Ninth, and what there has been and what the Founders wrote about it have already been posted and linked to, so I don’t think my ignorance is too great to preclude reasonable discussion here.
Frankly I think that the items you mentioned, while I know they come from actual rulings, are insufficient on their own to guide a decision that establishes legal protection for a previously unrecognized right. If reproductive freedom (or the right to privacy) is not just a very good idea (which it is) but “implicit in the concept of ordered liberty,” one of the"principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental," “essential to the orderly pursuit of happiness by free men” or “deeply rooted in this Nation’s history and tradition,” then there ought to be some evidence of it in the legal tradition prior to 1965! If there is no history in a thousand years of common law of any court acting on that principle, nor any legislature enshrining it in statute, and neither is there any part of the Constitution or other fundamental law or legal principle that seems to depend upon this right for its being, then I think it is incumbent on the court to find that, while this particular right or freedom would be a wonderful legal principle to have, it is not the job of the court to create it from thin air. Nor do I believe that the Ninth Amendment gives them sanction to do so in the absence of some substantial legal framework establishing that such a right previously existed under law, however implicitly.
Please note that I am not making any claims about the legal correctness of Griswold, Roe or any other specific case. I am arguing about what general principles should apply to any case that might intersect with unenumerated rights mentioned in the Ninth.
What I said was accurate, but I probably would have been more precise if I had worded it, “SCOTUS may not entertain a dismissal of a right if that dismissal is based solely on the fact that the right is not enumerated.” That’s an important protection, and not at all self-contradictory.
In the manner I described above. And I’d say SCOTUS in particular needs to find its rationale in the Constitution’s text. Other judicial entities have different processes potentially, but none should be creating rights out of whole cloth. I don’t think that’s a stretch, nor does that sentiment originate with me.
Running out the door, will be away on business a couple of days. You’ll have to resolve any constitutional issues without me!
It’s not a “important protection”, it’s completely worthless. In your world, the Court can’t protect unenumerated rights, so the plaintiff will always, always lose the case if it is based on an unenumerated right. With that, getting past summary dismissal is completely worthless. Somehow I’m guessing the writers of the Ninth Amendment didn’t intend to make a worthless Amendment.
What you describe above is worthless and without support from the text. I’m guessing here, but I think you read the language and know it has to mean what it says, but you’re uncomfortable with the judiciary having the power to protect unenumerated rights, so you create a completely toothless reading that offers no actual protection.
Well Stratocaster looks like he’s bowed out for the time being, but I don’t mind taking up the mantle. He pretty clearly said that the Court can and should protect unenumerated rights, provided that those rights can be shown to exist. He was also pretty clear that they should be derived from the actual text of the Constitution, which is a pretty reasonable position, although I would extend it to allow some possibility for rights to be derived from principles of common law and possibly from other legal sources as well.
BTW, I am pretty comfortable with the idea of allowing the courts to protect whatever rights they feel like, inasmuch as I’m a liberal, and most of the court’s rulings that establish previously unheard of rights lead to outcomes I approve of. I just don’t think that’s what the law was intended to do, and I don’t think it is a particularly wise system.
What do you think? Should the courts protect any right I can think of on the basis of the Ninth? The right to beat my wife and children? The right not to pay income tax? The right to hunt, fish, mine, and pollute my own land to any extent I desire? Those are rights people used to think they had, so presumably they were (and still ought to be) protected by the courts according to the Ninth Amendment, right?
That’s not what I got from his posts, which is why I continued to press him. I thought he was pretty clear that the judiciary has no place in protecting unenumerated rights, just enumerated ones.
I thought from his disdain for Substantive Due Process that he was against the judiciary ever reading unenumerated rights into the “actual text of the Constitution”.
Of course not. There should be a showing that the right is “implicit in the concept of ordered liberty” before it gains high levels of constitutional protection. I also think there should be a kind of sliding scale of rights, where the rights that are the most fundamental (rights of conscience, right to medical decisionmaking, rights to intimacy) are most protected and lesser rights (right to wear a hat, right to smoke) are less protected. The key would be whether or not the governmental interest in the infringement outweighs the “fundamentalishness” of the right.
I think from the 9th Amendment, the discussion surrounding its adoption, and the writings of the founders, that it is pretty clear that the Bill of Rights was not to be the only rights that were afforded protection from governmental intrusion. I also think, given the Constitution, that each branch of government has the power and duty to define and protect those rights.
C’mon. Nobody has the right to harm another.
16th Amendment.
All rights have limits. If the government wishes to legislate pollution, hunting, mining, the governmental actions must outweigh the right to property. Kinda like how they’ve been doing it for centuries.
I went through your examples to make a simple point. Simply because a right can be protected, doesn’t mean it always wins. We have governmental regulation that is Constitutional that infringes on our enumerated rights, the same would be/is true for unenumerated rights. This handwringing and fearmongering idea that recognizing and protecting unenumerated rights will cause the downfall of governmental regulation is simply that, fearmongering. Simply because the judiciary has the power to define/protect unenumerated rights doesn’t mean that men can beat their wives and children, pollute the enviroment at will, or not pay income tax, anymore than because the judiciary has the power to protect enumerated rights means you can libel someone, sacrifice children in religious services, or take over the property of another with your mob.
I think it is detrimental when uneducated individuals make legal arguments based on what they think are common-sense understandings of the law, so I usually avoid posting my legal opinions. Nevertheless, there’s no real case law based on the Ninth, and what there has been and what the Founders wrote about it have already been posted and linked to, so I don’t think my ignorance is too great to preclude reasonable discussion here.