[QUOTE=Hamlet]
What you are saying, instead, is that we are constrained to ignore the 9th Amendment. I understand we disagree. The problem is that I’m right and you’re wrong. 
The problem I have is with your constant assertions that I believe there are “additional words” I’m writing into the Constitution or that, by recognizing rights the judiciary is “changing the Constitution” or “usurping the will of the people.” That kind of rhetoric (and it is just rhetoric), is standard fare, but it has no basis in the Constitution itself.
Bu they did. Again, you would have to completely ignore the 9th Amendment, and the clear intent of the founders, to come to the conclusion that there are no rights outside of those enumerated in the Constitution. With that recognition, the issue becomes who decides what rights are protected. You can insist that only the Legislature gets to define rights, but THAT reading of the Constitution isn’t borne out in the language of the Constitution either, and it flies in the face of judicial review. Certainly the Legislature can define rights, but they can’t infringe upon those of the people of the US.
You certainly have a point, there is a great deal of flexibility in defining rights. But that is true for both branches. And the founders didn’t want one branch, the Legislature, to be the sole purveyor of rights.
[/QUOTE]
I don’t read the 9th amendment the way you do. I don’t believe it confers constitutional rights to people. I believe it confers rights. The difference is the standard by which those rights can be regulated. All rights, after all, can be denied. Even the “inalienable” rights to life, liberty, and the pursuit of happiness are not unalienable. The government can still take them away. The question is how much those rights are protected from the government’s grasp.
It may help to remember the tenth amendment, too (“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.”). If the power is in the Constitution, it can be regulated by the Federal government. If not, in can be regulated by the States. If not, still (i.e. both are silent on the topic), its given to the people to regulate.
The Constitution helps serve this purpose, then, since it tells us what powers the Federal Constitution can yield, while the Bill of Rights balances that by constraining the exerice of those powers. If the Federal government exercises power, it better point to a part of the Constitution that will justify it. And if the Amendments say the government has to, or can’t do something, then it requires the closest scrutiny to uphold a law that infringes this requirement.
Inherent in this is lots of discretion. It’s the nature of written opinions that aren’t as uniform as mathematical formulas. But, I believe that the discretion shouldn’t go beyond the words actually written.
And I don’t believe the words written in the 9th Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”) do not mean, “anything not written down here is also protected like the things we did right.” I think, instead, it means “Just because there are rights written here doesn’t mean that other rights don’t exist.”
As explained by its writer, James Madison
[QUOTE=James Madison]
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.
[/QUOTE]
Those rights, though, like all others, are not absolute. The government can still infringe them. But, when they are not written down, the government has greater latitude when it tries to infringe them. When we write down a right (via an Amendment) we are increasing the scrutiny, and narrowing the justification, for infringing on this right.
'Tis okay, though. I still agree that gays can’t be denied the right to marry. I just reach my conclusion differently than you.
[QUOTE=Polycarp]
I might point out that Atomicktom and jtgain, holding as they do to a textualist reading of the U.S. Constitution, really have no right to express those views, as the freedoms guaranteed by that document are for U.S. citizens and/or nationals, whereas, since there is no explicit grant of power to acquire new territory in that Constitution, they must consider themselves to be loyal subjects of His Most Catholic Majesty Juan Carlos, King of Spain and of his other dominions, as residents of his Territory of the Floridas.
[/QUOTE]
:Shrug: Article 2, Section 2 says “[The President]He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur”. If you are talking about the Lousiana Purchase, I believe the Jefferson had the right to make a treaty, acquiring tons of land, provided the Senate concurred (I don’t know if that happened. If not, was there some reason he didn’t get approval from the Senate?).
See, I’m willing to concede the need for some interpretation. Just as I would include the word “He” in that clause to include Hillary Clinton (Go Barack!), I’m willing to interpret the word treaty.
[QUOTE=Jtgain]
You want to word it that as a man I can marry a woman, and that a woman can’t also marry a woman thereby denying her equal protection. Since we have a conflict of definitions here, we need to go back and look at what the drafters of the 14th amendment would have thought about this. To say that Charles Sumner and Ben Butler envisioned gay marriage when authoring the 14th amendment doesn’t even begin to pass the laugh test.
It may very well be that in the year 2008, same sex marriage SHOULD be legal. My contention is that such a change in societal views doesn’t change written words in our constitution..
[/QUOTE]
See, this is the other end of the spectrum. I do believe in interpreting the words that are written in light of their contemporary definition, and I don’t limit it to what they meant at the time. To do so is, IMHO, too cumbersome a process to adapt to a constantly changing society. As I tried to explain in this post (on another thread), I believe it undermines the legitimacy of the court if they only believe, for example, that the arms in the 2nd Amendment are just “muskets and cannons”