Well, if you’re arguing that, then you can’t argue with kelo. Again, a cursory review of the opinions would note that the Court Affirmed the state court. To put it bluntly, the STATE said this was kosher.
Hence, the people bringing it to the supreme court (the “petitioners”, perhaps) were the ones saying the constitution forbade the use of eminent domain in such a fashion.
so if you have a problem with the supreme court determining this, stop complaining about Kelo. The Kelo court upheld the state court’s ruling. They said the state court was right in holding that this was OK. If you think the supreme court shouldn’t decide whether states have this power, or individuals have this right, then you think the decision was, in substance, right.
And, for the record, see the fifth amendment. The court is in the business of determining issues of just compensation for eminent domain.
Again, you are begging the question of whether or not a right exists.
How do you determine whether a right pre-exists, or doesn’t exist at all?
Either a right doesn’t exist, and the power to create it belongs to the states, or the people, or it does exist, and the power to determine that it exists belongs to the states, or the people.
Nope, this contradicts the Tenth Amendment. The power of “evaluating” (if you want to call it that) is not specifically assigned to the federal government anywhere in the Constitution. Therefore, it belongs to the states, or the people.
Again, the text of the Constitution contradicts this. If all rights arose under the Constitution, the Ninth Amendment would be unnecessary.
Too bad. The Tenth Amendment says that the states, or the people decide this, not you.
No one is saying they can’t exist. The Tenth Amendment says that the states, or the people, are the ones who decide if they do or not.
And that somebody would be the states, or the people.
And the word would be “enumerate”, not adjudicate. That’s begging the question again.
Yes, I have. Who determines what those natural rights are, given that the power to do so is not assigned to the Supreme Court?
Well, first of all, the tenth amendment is often seen as a truism. Since we have a federal government of limited powers, we don’t really need an amendment to say any power it doesn’t have is that of the states or the people-that’s implicit in the grants of power.
Furthermore, I point to Article III for the grant of power. If I’m right, then the tenth amendment has no bearing on this, as the power is given to the supreme court in the constitution.
And let’s not talk about new rights. The constitution establishes how the states and the people establish new rights. It’s called article V. It lets them amend the constitution to recognize new rights.
That’s how a new right given to all the people of the United States is recognized-the ninth amendment has nothing do do with it.
We could go into a long digression about whether the fourteenth amendment changes this by changing the basic source of federal power from states to people, but I’m not going to bother.
I’m just going to break this down very simply.
Yes, there is no easy answer as to whether any rights are protected under the ninth amendment-such rights would be those pre-existing at the time of the framing. I’ve proposed several, to which you haven’t replied-but maybe the clearest is a general right of personal autonomy.
But if there are, they are rights that protect against acts by the federal government.
That’s the basic nature of the constitution. It says things the federal government can and cannot do. (again, XIV really begins to extend this to protecting people against state action as well, but that’s another discussion).
State courts cannot effectively bind the whole federal government. They just don’t have jurisdiction. Similarly, as states can reach divergent conclusions, some body has to be able to ensure a right “of the people” is given to ALL the people.
Again, you’ll argue I’m begging the question that such (pre-framing ninth amendment) rights exist. But really, I’m not. I’m arguing that we have a clear way of figuring that out. You are providing the vague contention that somehow “the states and the people do it”.
How, pray tell, do they? How do they enforce those rights?
Points will not be given for citation to article V. Article V is how NEW rights not existing at the framing are recognized. (see, for example, the right of women to vote).
Again, I contend that the judicial power to make adjudications about rights “arising under the constitution” is clearly in the hands of the supreme court.
As the ninth amendment clearly asserts at least the possibility that such rights exist, somebody has to figure out what they are. That somebody has to be able to bind the federal government as a whole (as that’s the whole concept of rights in the constitution), and has to be able to bind state courts (especially after XIV-if we assert these are rights “of the people”, they are rights that should be uniformly recognized in all states).
Hence, when you say
That’s just like asking how we amend the constitution, without looking at article V, or where the law is that makes someone liable to pay tax, without looking at Title 26 of the U.S. Code.
But if not, please, go ahead, explain in more detail how “the people and the states” go about recognizing a right that was in existence at the time of the framing, and was not disparaged by the enumeration of other rights (as asserted in the ninth amendment)
Let’s also remember that the supreme court can come out both ways. It can also hold (as it does very properly in Kelo) that an act doesn’t trample on any rights of people or states. If you assert the people or the states should determine whether rights exist, with no role for the Supreme Court, I ask how you get around the need for the supreme court to make findings that the federal government is not precluded from acting in certain ways when individuals with standing assert violate rights reserved to them at the time of the founding. To make such a determination, the Court has to find that the “right” in question doesn’t exist-which requires them deciding the same question they must to hold that a right does exist-a you say it can’t even reach.
So how do we do that?
Just like when we were talking about Kelo, I’m very germane to have a discussion about issues of legal procedure, constitutional law, or courts. But it can’t get anywhere if we’re unspecific, or don’t read the things in question. So let’s be precise-it makes it much easier to have a substantive discussion.
You seem to be placing the 9th and 10th Amendments at odds with each other. Further, you seem deadset on ignoring what the 9th Amendment is telling you. You keep harping on enumerated versus unenumerated rights and then who gets to decide what unenumerated rights are there.
As it happens the courts get to decide. And no, they need something more to go on to deem something a right than they feel like it (so sadly they will not find a right for me to have Megan Fox dance naked in my living room for me…more’s the pity).
There are rights you enjoy that are not in the Constitution. Rights I bet you agree with and would deem a fundamental right. Things such as marriage (we’ll stick with hetero marriage for this), right to associate, right to have children, right to choose a school for your children, right to privacy and so on.
These are deemed implied or natural extensions of what the Constitution does actually say and the 9th Amendment tells us it is ok to find them there.
For the 10th I know of no mechanism where “the people” or “the states” decide if a right is in the Constitution. To pull that off you’d need to add a new Amendment to specify that right…i.e. enumerate it. Which is fine if a particular right seems unclear (such as some people wanting a Marriage Protection Amendment to more rigidly define “marriage”). You still have all the others listed above which the COURTS find in the Constitution. There is precedent for this going way back and although some people kick and scream over various rulings I have seen no one in government suggest the court was not allowed to do it. You seem to be alone on that opinion.
Well, I’d love to hear how Shodan thinks it works. But let’s note (and I don’t think you and I disagree on this) that the amendment process doesn’t depend on whether the right is pre-existing–it creates the right as enumerated whether or not it existed before. So it can’t be the procedure through which ninth amendment rights are recognized-because if it is, we’d have no need for the ninth amendment.
Nope, not in the slightest. The Ninth and Tenth complement each other.
The Ninth says that there can be rights other than those enumerated in the Constitution. The Tenth says how we decide what those rights are.
Sorry, but here you are simply incorrect. The text of the Constitution says otherwise. It does not say the courts get to decide. It says, " the states, or the people".
We seem to have reached an impasse. You are asserting that the Constitution says the opposite of what it says. Unless you can come up with an explanation why the Founding Fathers meant to say “courts” but said “the states, or the people” instead, I am afraid we are not going to be able to come to any understanding.
And yet, even though it is there, and even though it says what it says, the Supreme Court has grabbed that power for itself. In other words, it is not that we don’t need it - it is that we need it, and it hasn’t been obeyed.
We went over this already. See the discussion about “cases arising under this Constitution”, which means enumerated rights.
In other words, just like I said, the Supreme Court does not have the power to establish new rights. Ands the Ninth Amendment does not give them that power.
And the Supreme Court is a part of the federal government, is it not? And the Supreme Court is supposed to interpret, and be bound by, the Constitution, right?
Therefore, the way to bind the whole federal government so as to secure some right for the people would be to amend the Constitution, correct? Since, if you say that the Court is not bound by the Constitution, then the whole federal government is not bound.
I am not quite sure I understand this, but if it becomes clear from my answer that I don’t, please clarify.
In order for someone to prevail under the Supreme Court, they have to show that one or more of their enumerated rights is being violated. If they can do that, fine - the Supreme Court then acts. Or, if rights are in conflict, then the Supreme Court interprets the Constitution (with regard for the intent of the Founding Fathers). But if no specific right can be named, already enumerated, then the Supreme Court takes no action.
If, for instance. some one comes to the Supreme Court and says “my right to have an abortion is being abrogated by the laws of my state”, the Supreme Court says, “please show where in the Constitution it says you have the right to an abortion.” If they claim it is an emanation from somewhere, they respond “emanation isn’t enumeration. Go away.” Similarly, if someone says 'first trimester abortions are legal in my state, but that violates the right of the fetus to exist." The Supremes respond, 'Show me where in the Constitution it says that the Supreme Court gets to overrule states about abortion." If that person can’t, then the Supremes tell the person to go bother their state legislators if they want the laws on abortion changed.
No, it doesn’t. It may make no determination as to whether or not rights exist - that is up to the states, or the people. If it doesn’t involve an enumerated right, the Supreme Court does nothing. It makes no findings, it issues no injunction.
It does nothing. It doesn’t, or shouldn’t, have the power.
It’s the same for the Ninth and Tenth Amendments. It does not matter in the slightest whether the right exists but is not enumerated, or doesn’t exist at all until the states, or the people create it. The Supreme Court may do nothing about it in either case.
Notice that he is saying exactly what I am saying, and exactly the opposite of what you are saying. The Ninth Amendment is designed to remove unenumerated rights from being established by the government.
That’s why the Supreme Court is limited to cases arising under the Constitution. That’s why the Tenth Amendment says explicitly that the federal government has no powers other than those expressly granted it by the government.
That’s why we have the Ninth and Tenth Amendments - to keep unenumerated rights out of the hands of the federal government. Which includes the Supreme Court.
The sheer amount of misrepresentations in your post could choke multiple horses, Shodan.
In reality, it says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”, which is a helluva lot more than just “there exist rights”. It says those rights cannot be “denied or disparaged” simply because they aren’t enumerated. Which, as I’ve pointed out repeatedly to you to no avail, is EXACTLY what you are doing when you insist that the judicial power only extends to enumerated rights.
In reality, it says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The judicial power, which includes judicial review of statutes that violate rights, IS delegated to the US. In addition, it is an inherent power, just as the dozens of inherent powers that all the branches have. I’ve tried to emphasize your misreading of the 10th Amendment by asking you questions, all of which you ignored. I anticipate the same in this thread, but, just for the helluva it, here you go again:
“do you think Congress if forbidden from “establishing rights”? I’ve never seen you advocate that position before. Anti-discrimination laws, eminent domain restrictions, bankruptcy, laws allowing lawsuits for actions or against certain bodies, freedom of information, or any of the other dozens of “rights” Congress has established. Do all those violate the 10th Amendment? And, oddly enough, I didn’t hear you proclaim the DOMA act a violation of the 10th Amendment either.”
Are you saying that State Supreme Courts don’t have the power to establish civil rights? Why not. There is no 10th Amendment problem, and that is your argument against SCOTUS doing it. I’m just trying to point out the problem you have trying to cram a federalism amendment into a separation of powers issue."
But it’s [right to heterosexual marriage] is not enumerated. And unenumerated rights are, according to you, are not protected. … [H]ow you can have it the both ways.?
THE JUDICIAL POWER.
Another patently false assertion. The Ninth Amendment, the 14th Amendment, privileges and immunities, due process, and any federal legislation that might violate a right is a case "arising under the Constitution.
Which would contradict the 9th Amendment. As has been pointed out to you dozens of times already.
Which would contradict the 9th Amendment. As has been pointed out to you dozens of times already.
I know I just wasted those few minutes typing this stuff out, but maybe someone with the desire and ability to actually debate the issue rather than repeating the same disproven things over and over will pop into the thread and relieve Shodan.
How, exactly, does the tenth do that? Please be clear. When you say “the states, or the people,” who do they petition to be protected under a right of ALL the people that is unenumerated in the constitution?
It’s not clear what you mean by this. If you mean the Court has taken it upon itself to interpret the constitution to determine what the powers of the federal government are, I’d agree. It seems you do to.
So, what is wrong with the supreme court interpreting the constitution, including the ninth and tenth amendments, to figure out what it protects, and then applying that? I’d say nothing.
This cannot stand. This is simply not an accurate quote of the court’s holding.
I don’t mean to call you a liar, but I seriously wonder how you can make this assertion without missing a few little words of the part of the opinion you quote.
What those three words mean is that that very nice quote you have means NOTHING in terms of binding precedent about constitutional interpretation. It means Scalia disagree’s with the court’s HOLDING that there is a fundamental right of parents to direct the upbringing of their children that is protected by the due process clause of the Fourteenth Amendment.
In other words, since six justices agreed with the contention you and justice Scalia reject, making that the holding of the court, and Justice Scalia’s statement a dissent he couldn’t even get Thomas or the Chief Justice to sign on to, and since the lower courts are bound to follow the holdings of the supreme court, rather than your or Scalia’s opinion, this means nothing.
That would be one way, if the right in question isn’t protected by the constitution already.
I’d myself rather you didn’t assert that I said things that I have not. The supreme court, as all federal and state government officials, are bound by the constitution.
The supreme court has the role of figuring out what the constitution binds us to do. In doing so, it is bound by its interpretation of the constitution.
The legislative and executive branches are bound twice. It is bound by its own, independent obligation to interpret and follow the constitution. It is also bound by the holding of the supreme court when it is a party to supreme court litigation.
True, in the case of a petitioner alleging that a lower court wrongly denied them a right.
Wrong in general. The supreme court has two sides argue before it. One of them has to win. Generally, (in a civil rights case, let us say), one of them is arguing a right has been violated, and the other argues a right has not been violated.
Bet you can’t find a case where the supreme court “creates” a right without citing enumerated rights under the constitution.
Funnily enough, that’s not what the court said. And I might further point out that in Roe, the right was found in the Due Process clause of the Fourteenth Amendment. (although Blackmun demurred as to whether it would also stem from the Ninth. Douglas disagreed with the Ninth Amendment argument in his concurrence in Doe v. Bolton, but that hasn’t carried much weight (and is a concurrence in any event which, IIRC, didn’t get five votes).
(actually, the S.Ct. rarely issues injunctions on its own. Usually, it decides the constitutional issue, and sends it back to the lower court to actually put out a judgment)
Anyway. I feel I have a right to Megan Fox, and sue and win to get her. The U.S. department of redundancy department contends I don’t have such a right. But I win in the U.S. Court of Appeals for the Nineteenth Circuit.
They, perhaps reasonably, the U.S. appeals, arguing the federal constitution does not give me a right to actresses.
Are you saying the Supreme Court cannot hear that case? It would have to take action, yes? It would have to “protect” the constitution by saying that this “right”, if it exists, would be one for the states to protect if they want, yes?
But it can’t do that by not taking the case. If it doesn’t take the case, the decision appealed from (that I do have that right) remains in force. The “right” exists because the lower court said I had it, and the Supreme Court didn’t hear the case.
So, if the supreme court can do that, what distinguishes that case, in which they reverse a court’s holding that the federal constitution gurantees me a right, from the one in which I lose in court and sue?
The difference here is that the text of Article V. supports my argument.
So you’re saying a right is “secure” if I can’t enforce it, and “insecure” if I can?
When Madison fears a right being “assigned to the federal government”, he fears the Court saying that the federal government can control it.
The bill of rights sets out things that the federal government can’t control. For example, my right not to have troops quartered in my home. Madison fears that the enumeration of that right would lead a court to say “nope, doesn’t say the gov’t can’t quarter politicians in your house”. Hence, we shouldn’t assume that the rights we can protect against the federal government are limited to those enumerated.
But… if the federal government is asserting it has a power, and it’s asserting it in that nice, polite way with FBI agents, tanks, etc, etc, I’d be the one suing to stop them. And the Supreme Court would be deciding whether the government has that power, or whether I have a right not to have politicians in my house.
They’re paying for it, whorfin. You might as well eat it.
Thanks for the smile. I am getting more than a little frustrated here, and have multiple times deleted responses that were not Great Debates appropriate.
The feeling is mutual in every respect. But I think you and I should give up our exclusive focus on the right to a donut-I’m going after the right to megan fox.
No, I was agreeing with you that I am frustrated with Shodan, that I want a donut, that I’ve deleted several paragraphs too fierce for this forum, and that I appreciate people like you, posting in the thread with a good, solid sense of humor.
Good. My brain is fried. That someone talks about a tight interpretation of the constitution, and then totally ignores the difference between rights and powers utterly boggles my mind.
Reminds me of a great law school class (I think Con Law II) when someone in the first class asked a question about States’ Rights. And got bawled out for 20 minutes by the professor explaining that individuals have rights, and states have powers.
Con law professors can be picky about having people read closely. I saw one go after a 1L for fifteen minutes for not getting something in the first paragraph of an opinon, especially when he still didn’t get it after the professor went through the “open the book… Turn to page xxx… Look at the first paragraph… Now, Mr xxx, do you have an opinion…”