TWEEEET!
I don’t care who thinks someone has or has not answered a question, but I do not want to have to wade through another few pages of to quoque. Rather than bickering over who answered what question, simply declarw tabula rasa and make your points as though no previous diuscussion had occurred–then refrain from making “but you said” claims pointing to any post prior to the restarted discussion.
[ /Modding ]
Since I’m left still guessing, I’ll try and and establish what I see as Shodan’s main point.
One point I made, boiled down to one sentence: “The judicial power includes the power to find legislation that violates a US person’s rights to be unconstitutional.”
Shodan’s response: "There you go again, asserting something without proving it.
I think we have established that this is not in the Constitution. At least, you seem reluctant to paste where it is."
Given tom’s admonishment, I guess I’ll ask a “brand new, never seen before” question: “Do you believe that the “judicial power” includes the power to strike down legislation that violates a US person’s rights?” Your above statement seems to indicate that you don’t, that you think that the judiciary has no power to strike down legislation that violates a right, whether enumerated or not. If that’s the entirety of your point, as I’ve said before, have at it.
Of course, I’ll point you to Federalist #78, where Hamilton stated: “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.”
If you think the entire idea of judicial review for the protection of rights isn’t the “judicial power”, that’s a whole another discussion that requires more quotes from the founder, including more from Hamilton, as well as secondary sources like this:
*"The founders reasoned, and accurately so, that the people are prone to being manipulated in times of fear by leaders who seek greater authority and power. History demonstrates this fact as clearly as it demonstrates anything. And they viewed the courts, made as immune from public pressure (i.e. “democracy”) as possible, as an important bulwark against the usurpation of power in this manner.
This is expressly anti-democratic, but also expressly pro-liberty, which comes as something of a shock to most Americans, who have been trained to think that democracy and liberty are virtual synonyms of each other. But the Founders understood otherwise. They understood that a democracy can violate the rights of individuals as easily as a dictator or a king, and indeed that it may be more dangerous when such violations are sanctioned by vote rather than by imperial whim for the simple reason that we tend to view all judgements reached democratically as intrinsically more valid than judgements reached by an individual.
But the founders knew that this was folly, that a majority may be every bit as contemptuous of the rights of others as any satrap. Thus, they set up a system that put liberty first, that placed limits on what a government - i.e. a majority - may do and not do. And they gave to the courts the authority to insure that those limits were followed. The fact that they have failed to do so in so many instances is tragic, but I would argue that where the courts have failed to impose those limitations it has failed precisely because they have failed to take seriously the role that the founders wanted for them, the role of protecting liberty from democracy."*
I, apparently to my fault, gave you the benefit of the doubt and figured you wouldn’t argue that the judiciary is not empowered to protect the rights of its citizens. My bad.
Then don’t wade through them. The posts speak for themselves. Shodan has, over and over, refused to answer the questions and then tried to take advantage of it. Then, with a lack of those answers, I’m left to guess what he’s thinking. And, when I make a guess, he dishonestly dissects my posts to pretend I said something I didn’t.
And you want me to just ignore all that? I stopped pointing out his flaws, as you wished. But now you want me to stop taking shots at his dishonest debating tactics too?
Your board, your rules…
I will note that I tried to edit the above post by me, but was timed out repeatedly before I could and the time to edit had passed me by. It would have been: Still not worth it.
Shodan: Focusing just on your points in #103 above and mindful of Tom~'s injunction, let me offer these thoughts…
The Supreme Court has had the authority to “diseffectuate” – make of no effect – laws which violate the constitution – judicial review – since at least 1798 (Calder v. Bull). Justice James Iredell’s point in that case, that reference must be made to a provision of the written constitution that is at odds with the ordinance or statute, is very relevant to our debate.
It is therefore my contention that if the Constitution asserts a right, power, or prohibition, it, and nothing else, governs, and the courts are, by Article III, empowered to act.
Now:
Under the principles espoused by Madison, Mason, and others, the “rights of man” – natural rights which you or I would believe to be endowed to them by their Creator – exist. They are not given, created, invented, or whatever – they are eternal verities. The most a government can do is to guarantee them, or if evil try to suppress them.
For obvious reasons not every application of every right will make itself manifest at one time. Whether advocates of women’s suffrage may lead women in a march through town as an element of their right to free speech or to petition for redress of grievances, does not come up until the women’s suffrage movement occurs. Opposition to the President waging war without Congressional declaration of war won’t happen until a President does so
My assertion, and I believe Hamlet’s, is that the Ninth Amendment is in fact the repository of rights – real rights, ones which would have gladly been endorsed by Jefferson, Madison, and their cohorts. That was in fact its purpose.
Defining such rights is an exercise requiring extgreme caution. But surely these are valid rights: the right to marry, subject to legitimate restrictions; the right to keep one’s private affairs private in the abstract, subject to other legitimate instances validating an intrusion (cf. probable cause, and as an example the choice to use contraceptives within marriage); the right to travel and to relocate, presuming one’s finances and public circumstances allow.
Now, bottom line:
And if that is indeed the case, then it is – not a right in and of itself in some abstract sense – but one instance of a recognized fundamental right.
And, contrary to what you seem to be espousing, rights are not handed out by some beneficient legislature like so much pork – they are asserted, claimed as of right (interesting phrase, that) in lawsuit or in defense against a criminal charge, and adjudged to be valid in response to such a claim by a court of competent jurisdiction.
Oh, and one missing point, in response to one issue I had forgotten you raised:
The judicial power extends to cases arising under the Constitution. The Ninth Amendment is a part of the Constitution. The Ninth Amendment guarntees unenumerated rights. Therefore it is emphatically the business of the Supreme Court to ensure that such rights are not denied or disparaged. And this is a power given it by Article III, as an element of the judicial power. Hence the Tenth Amendment has, as our Aussie friends might say, bloody fuck-all to do with the situation.
Off topic: Hamlet, I would greatly like to read your “secondary source” from post #122. Cite, please?
And Shodan would make ther identical claim about your posts. I am not setting a rule; I am making a suggestion in the hope that you two will actually look at the other’s position and debate clearly. (I do not expect either of you to be persuaded by the other, but I suspect that you are each making valid points to be considered while also falling into semantic traps and logical inconsistencies. It would be nice to see you get to the point where there is a clear difference of opinion on a point you both recognize.)
This, of course, is another misrepresentation.
Here is the exchange again -
You were trying to establish that the Ninth Amendment explicitly gave the Supreme Court the power to establish previously unenumerated rights. It does not.
I believe you have admitted as much - at least, this is what I can glean from the fact that you have failed to respond to the refutation except to attempt to change the subject.
OK, let’s take tomndebb’s suggestion that we suspend Shodan’s rule of thumb and repeat everything.
Yes. The judicial review does include the power to strike down legislation that violates a US citizen’s enumerated rights. It does not include the power to enumerate rights.
The federal government, including the Supreme Court, has only those powers explicitly granted it by the Constitution, and no others. All powers not explicitly granted to the federal government are reserved to the states, or the people. The power to enumerate rights is not explicitly granted to the federal government, including the Supreme Court. Therefore, the power to enumerate rights is reserved to the states, or the people.
Your claim that the Constitution does not make a distinction between enumerated and unenumerated rights is wrong. It does make such a distinction. Enumerated rights are protected by judicial review. Unenumerated rights are established by the states, or the people.
Please spare us further nonsense about how this disparages unenumerated rights. As previously mentioned, twice, this is a red herring. The Tenth Amendment exists to ensure that those rights are not disparaged.
Now, if you would care to respond to this, without mischaracterizations, we can move forward in this debate. If not, well…
I will requote Plexi Guy’s cites yet again.
I think we can agree that your statement is incorrect. Therefore, all arguments based on the idea that the Ninth Amendment is a source of unenumerated rights are adequately refuted.
It seems rather simple to me. Nonetheless, it keeps getting ignored, and I get accused that I am not responsive.
Regards,
Shodan
The difference would be Shodan’s claim would be false.
It was the /Modding at the end of the post that made me think you were setting a rule and not a suggestion. I agree wholeheartedly, this “debate” would go a lot easier without semantic traps and misrepresentations. Luckily I’m doing neither. But it would also go a lot easier were I not such a hothead, easily frustrated, and too quick to attack. For that, I apologize to you and the readers.
The irony of you calling my post a misrepresentation, when you don’t even begin to understand my points brings a smile to my face. I have not said this.
Well, I would admit that the 9th, taken alone, does not “explicitly give the Supreme Court the power to establish previously unenumerated rights”. Good thing that wasn’t the entirety of my point. As I have repeatedly stated, the “judicial power” granted the judiciary in the Constitution (note: Not the 9th), includes the power to hold statutes unconstitutional if they violate a US person’s rights. That power is not limited to simply enumerated rights, but all rights, in part because of the definition of judicial power, but also, in part, because of the 9th Amendment. And, while I’ve explained this over and over, your refusal to answer my questions about where in this argument you and I differ, makes debate quite difficult.
Finally. Thank you. Since you had refused to answer my questions, I took this exchange to mean differently. I had posted: “The judicial power includes the power to find legislation that violates a US person’s rights to be unconstitutional.” You had quoted that, and replied: “There you go again, asserting something without proving it. I think we have established that this is not in the Constitution.” I took you clear language to mean that you thought “The judicial power includes the power to find legislation that violates a US person’s rights to be unconstitutional” was not in the Constitution. Now, you do. See how much easier this would have been?
And here is where your argument on this point, in my opinion, falls apart. You accept that the judiciary is empowered to strike legislation that violates US persons rights, but limit that power only to enumerated rights. That distinction, as I’ve said over and over, is NOT in the Constitution, and, once again, is counter to the clear wording of the Constitution. If you think it is, please, by all means, point it out to me. But there is no reason to think your distinction is valid, and the 9th shows it is not.
I’ve read this, and answered it numerous times. But, in an effort to help the debate along, I will repeat myself. The power IS granted in the Constitution. It is the “judicial power”.
But even beyond that, you seem to be contradicting, not just the Constitution, but also yourself. You say: “The judicial review does include the power to strike down legislation that violates a US citizen’s enumerated rights.”, yet those words aren’t in the Constitution either. I agree, that power is there in the “judicial power”, but your insistence on finding part of the power in there but excluding the other part, is nothing short of self-contradictory.
The only “distinction” between the rights is in the 9th Amendment, where it says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Other than that, where the amendment says non-enumeration should not be used to deny rights, there is no distinction in judicial review.
You can call it a red herring another 2,000 times, that STILL won’t make it a red herring. If you think that denying unenumerated rights can be protected by the judiciary is not “denying or disparaging” them, I suggest you get a dictionary.
Wait? What? You insist that the 10th Amendment is the reason there is no judicial power to protect unenumerated rights, AND yet, in the same post, insist it is the 10th Amendment ensures the rights aren’t disparaged? Is the 10th Amendment the catchall for you? Do you trot it out to show anything you assert, even when it is two completely opposite point? It’s a superhero of Amendments.
The 10th Amendment does nothing to protect unenumerated rights, it does, according to you, the exact opposite.
snort
Sure, you’ve stated it repeatedly. You just have never proved it.
I’ll give you another chance. Please demonstrate where in the Constitution the definition of “judicial power” includes the power to enumerate rights.
You also repeated (I think) the claim that the Ninth Amendment is the source of unenumerated rights that must be protected by the Supreme Court. I will therefore repeat -
You mentioned earlier that you thought this definition was intended by the Founding Fathers. I am still waiting for some quotes from them where they clearly state that they intended the Supreme Court to have the power to enumerate rights. Please feel free, and be specific.
It probably won’t help, but nevertheless -
I believe you have stated that the Supreme Court does have the power to interpret the Constitution. I agree with that position, although I am sure there would be areas where what you would characterize as “interpretation” I would label as “enumerating rights” or something similar.
I will post something for the third time.
So, the Supreme Court, who you claim is the final authority on what the Constitution says, very clearly contradicts you on their role.
So, either the Supreme Court does not have the authority to interpret the Constitution, or you are wrong about the Ninth Amendment and judicial review. Which is it?
I have given you a direct answer. Please provide one in return.
OK, then again, please show the “clear wording of the Constitution” that assigns the power to enumerate rights to the Supreme Court.
Your statement that there is no distinction between enumerated and unenumerated rights is in the Constitution. That is why we have both the Ninth and the Tenth Amendments.
As you mentioned in the second line of your post, the Ninth Amendment does not assign the power to enumerate rights to the Supreme Court, nor is it clearly included in the definition of judicial review, and the fact that we have a Tenth Amendment shows that unenumerated rights are not being disparaged.
:shrugs:
I already covered this in my response to Polycarp.
Unenumerated rights are not under the purview of the Supreme Court, as mentioned several times. They are under the purview of the states, or the people.
Earlier you said the distinction between unenumerated and enumerated rights did not appear in the Constitution; now you see that it does.
I don’t need a dictionary; I have the Constitution.
Nonetheless, feel free to provide a link to a commonly used dictionary which states explicitly that anything not protected by the judiciary is being denied or disparaged.
Yes, that is quite correct. The states, or the people have the power to enumerate rights, since that right is not explicitly assigned to the federal government. In that way, the rights are not disparaged.
You are suffering from the common liberal misconception that all power is vested in the federal government, which is contradicted by the Tenth Amendment. The federal government, including the Supreme Court, may not act and has no power whatsoever - unless the Constitution clearly assigns them the power.
So, to recap -[ul][li]The Constitution makes a distinction between enumerated and unenumerated rights, in the Ninth Amendment.[]The definition of judicial review includes only cases arising under the Constitution, not cases arising from rights unenumerated in the Constitution.[]The Ninth Amendment establishes that some rights exist that are not enumerated in the Constitution.[*]The Tenth Amendment establishes who has the duty and power to enumerate rights, and it ain’t the Supreme Court.[/ul][/li]Regards,
Shodan
Just to clarify a point. The Supreme Court does not need to specify what the unenumerated rights are in order to ‘protect’ them. It can ‘protect’ them simply by not expanding the powers given to the federal government.
The Supreme Court can’t expand rights with out taking power from the government, and it can’t take power from the government without expanding rights.
The constitution is pretty clear that the process of changing what is allowed or disallowed the federal government is done by amending the constitution. That’s a lot of hard work, of course. Some people would rather try to convice 5 guys in funny robes instead.
You’ve, and pretty much everyone, have agreed that the judicial power includes the power to protect the rights of people from unwarranted governmental intrusion. It is YOU who wish to limit that power to only enumerated rights, and YOU who are doing it without a single shred of evidence. From Hamilton’s Federalist #78, to English Common law, to Madison’s comments (“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 the 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 overnment, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged 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.”), to the statements of Roger Sherman, who helped draft the Bill of Rights ("the people have certain natural rights which are retained by them when they enter into Society, Such am the rights of Conscience in matters of religion; of acquiring property, and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by the Government of the united States." All the evidence, much of which I’ve already provided, shows the drafters of the Constitution, as well as jurists in England, and the colonies, believed that these natural rights cannot be infringed by the government. And, to protect against such infringement, they granted “the judicial power” to the judiciary. Which includes the power to strike legislation that violates the rights of people in the US. " And not a one of those statements, and the clear language of 9th Amendment, indicates that power did not include unenumerated rights. THAT’S you inserting words into the “judicial power” in the Constitution.
Think of it this way. Imagine the Constitution was ratified, but without the Bill of Rights. Under your … mistaken… view, the judiciary would not be empowered to strike any legislation that violated the rights of the people, simply because those rights weren’t written down. The numerous quotes I’ve provided, the common law of England and the colonies, and common sense should show you how wrong you are.
You can beat the “it’s not EXPLICITLY in the text of the Constitution!!” drum all you like. I find it amusing that you’ll accept judicial review without that being EXPLICITLY in the text either (but, as we agree it is “the judicial power”). Your duplicity is showing.
I think it is, but that is not the thrust of my point. Whether you treat it as a font of rights or just as a rule of construction, the language in the statute is clear, rights of people cannot be denied or disparaged simply because they aren’t enumerated. Why you, and so many others, have problems with the clear language of the Amendment is beyond me.
And, as an aside and not to start a hijack, I think this idea that there needs to be a “font” of rights in the language of the Constitution is wrong also. As I’ve abundently shown, the founders were believers in natural rights, and the enumeration of some of those rights was never meant to mean the others were protected.
Hey, what do you know. Scalia and I disagree. Shocker, eh? And, I couldn’t help but notice, you failed to mention that Scalia’s comments were in… gasp… a dissent. You might want to mention that up front next time, lest people think you’re trying to pretend it was a holding of the Supreme Court.
As I’ve explained, over and over, you cannot possible “deny or disparage” a right anymore than by denying it protection by the judiciary. I don’t care if you Scalia says differently in dicta in a dissent, he’s wrong too.
And another misstatement of my views. Is that what you call debate? I said that there is no distinction in “the judicial power” for the protection of enumerated, but not for unenumerated rights.
Is a :shrug: your idea of an argument? You simply state the same thing, add a shrug, and that’s it? Maybe :shrug: is a cite to you?
You’ve stated, over and over, that the judicial power granted in the Constitution is limited only to enumerated rights. I responded that 1) there is nothing in the Constitution that even comes close to saying that; 2) making that distinction is against the clear language of the 9th Amendment; 3) that’s not the history of English Common law; 4) that idea is counter to the founder’s ideas of natural rights; 5) that idea is against the clearly expressed concerns of some founders.
And then you repeat the same thing and shrug. I guess if that’s how you debate…
And, as I said, the 10th Amendment is not a magical amendment that does whatever Shodan wants it to. It deals with the powers of the federal government and not with the rights of the people. And, as I’ve said countless times, 10th amendment only deals with “powers not delegated”, and the power of judicial review (without your unfounded distinction) was clearly given to the judiciary.
Main Entry:
de·ny Listen to the pronunciation of deny
Pronunciation:
\di-ˈnī, dē-\
Function:
transitive verb
Inflected Form(s):
de·nied; de·ny·ing
Etymology:
Middle English, from Anglo-French deneier, denier, from Latin denegare, from de- + negare to deny — more at negate
Date:
14th century
1: to declare untrue <deny an allegation>2: to refuse to admit or acknowledge : disavow <deny responsibility>3 a: to give a negative answer to <denying the petitioners> b: to refuse to grant <deny a request> c: to restrain (oneself) from gratification of desires4archaic : decline5: to refuse to accept the existence, truth, or validity of
disparage
Main Entry:
dis·par·age Listen to the pronunciation of disparage
Pronunciation:
\di-ˈsper-ij, -ˈspa-rij\
Function:
transitive verb
Inflected Form(s):
dis·par·aged; dis·par·ag·ing
Etymology:
Middle English, to degrade by marriage below one’s class, disparage, from Anglo-French desparager to marry below one’s class, from des- dis- + parage equality, lineage, from per peer
Date:
14th century
1 : to lower in rank or reputation : degrade 2 : to depreciate by indirect means (as invidious comparison) : speak slightingly about
If the concept that not protecting a right, while protecting others, is not denying or disparaging is beyond you, I fear we are at a crossroads. Earlier, tom was concerned that you and I would not be able to make our points. I think right here is one where we have to agree to disagree. I think not protecting rights is denying and disparaging them. You, apparently, think otherwise. I’m quite confident I’m right on this one.
“the judicial power” How many times do I have to point that out to you.
[quote=Shodan]
So, to recap -[list][li]The Constitution makes a distinction between enumerated and unenumerated rights, in the Ninth Amendment.[/li][/quote]
No, the Ninth Amendment emphasizes that there should NOT be a distinction made between enumerated and unenumerated rights, at least if that distinction works to “deny or disparage” those rights. Strike one.
[quote=Shodan]
[li]The definition of judicial review includes only cases arising under the Constitution, not cases arising from rights unenumerated in the Constitution.[/quote][/li]The Constitution includes the 9th Amendment. And to not have judicial review include non-enumerated rights clearly “Denies or disparages” those rights. Strike Two.
[quote=Shodan]
The Ninth Amendment establishes that some rights exist that are not enumerated in the Constitution.[/quote]
Ding, ding, ding! We’ll call it a ball.
“the judicial power” is granted to the judiciary. That includes the protection of rights. As I’ve said, over and over and over. Strike three.
You’re out.
As I pointed out before, that was surely one part of Madison’s statement about the protection of rights. He sincerely (and to my mind incorrectly) believed that the limitations on government in the Constitution would function to stop the government from violating rights.
But he didn’t just stop there. He also needed to convince the other founders who were concerned that rights not enumerated would be subject to governmental intrusion. So he helped write, draft, and pass, the 9th Amendment.
Wow. First line, and you are already misstating my position. The judicial power includes solely and only enumerated rights. Unenumerated rights are established, and thereby brought under the protection of the federal government, by the states, or the people.
Second line, second false statement. I cut and pasted the evidence from my reply to Polycarp
This is all very nice, but could you please provide a cite that actually establishes what you claimed? I don’t see anything about how the Supreme Court was intended to enumerate rights.
Thanks in advance.
No, it comes from the Tenth Amendment. Remember how I mentioned this a few times?
Well, sure, if there were no Bill of Rights (including all ten amendments), then there would be no enumerated rights. And if my aunt had balls, she’d be my uncle. But, in fact, the Bill of Rights was added to the Constitution, including the Tenth Amendment.
So, since none of the quotes you provided are relevant, and the Constitution is the foundational document of the US federal government, I am not wrong at all.
Even after I posted it twice, you still won’t read it.
Here again, you are quite straightforwardly wrong. The Tenth Amendment does, in fact, make it clear that all powers - including the power of enumerating rights - belong to the states or the people, unless the Constitution says otherwise. The Constitution does not say otherwise. I won’t bother reposting the text of the Tenth, as it did no good last time.
Again, could you please confine yourself to cites that actually demonstrate your point?
You made the following (absurd) claim -
Then you posted the garbage quoted above, containing not even a single reference to the judiciary, enumerated rights, or anything else even remotely on point.
I repeat my request - please provide a cite from a commonly used dictionary that defines “denied” or “disparaged” as “not protected by the judiciary”.
Oh, I’ve made mine. You just keep ignoring it.
You’re not.
You have pointed it out quite often. Could you please produce evidence to demonstrate it?
It doesn’t, as long as we have the Tenth Amendment.
False, of course, as long as we have the Tenth Amendment.
Repetition does not constitute proof. You’ve provided no proof.
Back to the insults. Not surprising, you have nothing else.
Regards,
Shodan
Here’s how I see the “debate”, Shodan.
a) Shodan - You think “the judicial power” referred to in the Constitution, includes only the power to protect enumerated rights. To support your position, you have offered the language from the Constitution that says: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution”. You believe that “arising under this Constitution” refers only to enumerated rights. In response, I point out the rather obvious point that the 9th Amendment is, in fact, in the Constitution. You also assert that the 10th Amendment means any power not explicitly granted to the federal government is left to the States. In response to that, I point out that the 10th only refers to powers not granted and “the judicial power” is granted.
b) Hamlet - I think “the judicial power” referred to in the Constitution includes the power to protect rights, both enumerated and unenumerated. To support my position, I offered: 1) the clear language of the 9th Amendment; 2) the statements of the founders indicating that they were concerned that the enumeration of certain rights would cause people to think that only unenumerated rights were protected and Madison’s quote that the 9th Amendment takes care of that problem, 3) Sherman’s quote, wherein he lists rights, some of them unenumerated, that “Of these rights therefore they Shall not be deprived by the Government of the united States.”; 4) The theory of natural rights, wherein rights are not granted by the government, but rather exist and are protected; 5) English common law, in which the judicial power included protecting rights even though there was no Constitution and 6) a thought experiment about the Bill of Rights. In response, you say that nowhere in the Constitution does it define the Judicial power as including enumeration of rights, and, thus, it is an unenumerated power subject to the 10th Amendment. I, once again, point out it was enumerated, through the term “the judicial power”, so the 10th Amendment does not apply. I also point out that, although the power to protect enumerated rights is not explicitly in the Constitution either, you accept it as part of “judicial power”.
a) Shodan - You say that the wording “deny or disparage” in the 9th Amendment doesn’t grant any power to the judiciary to enumerate rights. In support, you offer Scalia’s quote (in a dissent, but you failed to mention that part) “the Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.” You insist that rights not enumerated are not “denied or disparaged” because the 10th Amendment… well, to be honest I kinda lose your argument here. I think you mean that the 10th Amendment allows the States (and/or the people) to define, or enumerate, these unenumerated rights, so they are not “denied or disparaged”.
b) Hamlet - I believe permitting judicial review of enumerated rights, while not permitting judicial review of unenumerated rights certainly “denies or disparages” those rights. In support, I offer… well the definition of deny or disparage. I also point out that the fact that the 10th Amendment allows the states to enumerate rights, it in no way, shape or form mandates the protection of those rights, so those rights are “denied or disparaged.”
Did I miss anything?
Not to mention that case law and the plain wording of the 14th amendment have changed how we look at and apply the Bill of Rights and other amendments to the states, so we can’t use JUST the originalist meanings of the first 10 amendments–we have to look at them in light of the 14th since it is also now part of the US Constitution.
Well, yes, a couple of things.
[ul][li]You made the claim that Founding Fathers intended that the Supreme Court should have the power to enumerate rights. So far, no evidence has been forthcoming that this is the case. None of your quotes make any reference to the Supreme Court or their alleged power to enumerate rights.[*]You made the claim that any dictionary would show that the definition of “denial” or “disparagement” necessarily included “not being protected by the judiciary”. Again, no evidence has been provided. So when you claim this -[/li][quote]
In support, I offer… well the definition of deny or disparage.
[/quote]
you are simply repeating a claim without evidence.[/ul]So basically, you have repeated your arguments over and over without producing any evidence to back it up.
I suppose I could point out your errors in your interpretation of the Ninth (again), but I suspect you would batten on that to repeat yourself and ignore the lack of evidence for the points above, so I won’t.
So that’s what you’re missing - evidence that the judicial power include the power to enumerate rights, and evidence that unenumerated rights are denied or disparaged unless protected by the judiciary.
Regards,
Shodan
I think Shodan’s logic is sound. The 9th is not a source of rights, it simply makes clear that the enumerated rights are not intended as an exhaustive list. So, for example, if a state law protecting the right of a citizen to grow petunias in his backyard flower box was brought before SCOTUS to determine its constitutionality, it would be wrong for the court to declare it unconstitutional on the basis that a right to grow petunias is not enumerated. That’s all the 9th does.
When SCOTUS says something like, “I recognize the right to grow petunias as a fundamental right,” as they do from time to time despite the 10th amendment’s restrictions, they are overstepping their bounds. State legislators may or may not collectively recognize this as a right. The Feds, though, ought to have no opinion on it, since the Constitution does not give them any basis to interfere in the critical arena of petunia growing.