That’s succinctly put, Stratocaster - especially the “no opinion” part.
I think people just don’t get the notion of “limited government”. The whole point of the Constitution is to say to the federal government, “This far you may come - and no further.” That’s why we have both a Ninth and a Tenth Amendment - to answer fundamental questions about the role of the federal government as regards human rights.
Think of it as a catechism -
“What are the rights under the protection of the Federal government?”
“They are listed in the first eight Amendments.”
“Is that all the rights a citizen may hold?”
“By no means - there may be any number of others. The mere fact that it is not explicitly listed does not mean it doesn’t exist.”
And this, I think, is at the heart of the problem. It doesn’t just say that, it says much more. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It doesn’t just acknowledge that these rights exist, it also contains a proscriptive command, that the fact that these rights are not enumerated in the Constitution shall NOT be construed to deny and disparage those rights. The idea that it just states something true, as a statement of natural rights for example, I think, is contrary to the clear language.
One other issue, I think (and I will not attribute this phrasing to anyone lest I misrepresent his/her views) is that some people see things like SSM, the Miranda rights, etc. as new rights, pulled by the distinguished Justices of the Supreme Court out of their jurisprudential recta. Against that view, the stance is that constitutional rights have always existed; it is merely that until someone thought to act in a manner to violate them, there was no need for a court (or anyone else) to take notice of them.
For example, Shodan, Hamlet, and I, like all Americans, have every right to post our views on the Internet without governmental trammelling. This is because it is a specific instance of the general right to freedom of speech. Now, note that Alexander Hamilton, Daniel Webster, Henry Clay, Samuel Tilden, and honest John A. Logan all had the same right – but for obvious reasons the question never came up.
Hamlet has every right to “telepathic” access of the Federal and state law libraries using the interactive brain-waves-to-long-wavelength-radio skullcap-like device that will be invented in 2062; it’s purely a shame he can’t use it now, but his right to do so cannot be infringed by law, merely by the minor issue that it hasn’t been invented yet.
They are not ne roghjts, invented on the spot, they are new instances of existing rights never yet having had occasion to require definition until now. As is my perennial example of an implicit power, the U.S. managed to go 136 years without an air arm in the military – not because it was suddenly a new power pulled from some magical reservoir of powers, but because it was a new instantiation of the power to provide for the common defense explicit in general terms and implicit in specifics.
Hamlet, this is indeed the heart of the problem. Do you concede that there has been evidence provided for you that the ninth was never intended as anything more than a rule of construction, as a way of interpreting the document, NOT as a specific source of any right? Do you concede that the ninth has almost never been cited as a foundation of a SCOTUS opinion, except as noted in prior posts? If you’re frustrated, this is the source of mine. I am not simply offering a blind opinion.
Secondly, I HAVE provided what I perceive as the only direct effect the ninth should have in an opinion–i.e., it should prevent SCOTUS from ruling on the basis that an unenumarated right does not exist by virtue of the Constitution’s silence on the matter. That is all it does, from a practical perspective. More than that, it’s all it CAN do. It is shapeless beyond the ability to provide any specific direction. It means whatever anyone wants it to mean.
That power does not include the ability to establish rights in contradiction to what the states have defined, except to the extent that an enumerated right compels them. The tenth specifically makes this so, as Shodan pointed out.
I can’t concede that. I will concede that, with few exceptions, courts of law have not FOUND that to be true.
But, I have shown, with multiple quotes and mulitple cites, that many of the founders didn’t think there needed to even BE a “specific source of rights”, and, if that was so required, they thought those rights WERE protected by governmental intrusion. As I said many times before, and provided many quotes, many of the founders, and many of the people of the time, were leery of even having a Bill or Rights because people, like you, Shodan, and Scalia, would think that unless it was specifically enumerated, it wasn’t a right protected from governmental intrusion.
Let me ask, does the fact that no SCOTUS case has recognized the 2nd Amendment as a source of individual rights against the States mean that it isn’t an individual rights?
I agree, in a great majority of the cases, that is all it HAS BEEN INTERPRETED AS DOING. Which means nothing to the original intent, the motive, and the clear language of the 9th Amendment. THAT’S what I’m arguing.
I’ve had to repeat myself over and over and over. Do you still not understand my point? I understand that you and yours are afraid of unenumerated rights and it’s seeming “shapelessness”. Me, I’m not as scared. In all honesty, I see the caselaw as doing what the 9th was intended to do, protect rights not enumerated. Privacy, conception, raising children, medical decisions, and on and on. Courts have, over and over, protected rigths that are not specifically enumerated. And they damn well should be, because that’s what the 9th Amendment, and the founders, wanted. But the caselaw does it through “due process” or some other phrase rather than the 9th. Such is life.
The ninth amendment does not specifically give the judiciary power to “create” new rights, no…because the rights in question (privacy, marriage, move from state to state, etc) exist independently of a court ruling, similar to our rights to freedom of religion, speech, press, peaceable assembly, from unreasonable search and seizure, etc existed prior to passage of the Bill of Rights.
IIRC, the founders involved in drafting the Bill of Rights didn’t believe that they were granting rights to anyone (so far as I’ve read, anyways). They believed that those were natural rights that existed whether they were recognized by the government or not. The founders would have agreed that the Saudis/Iraqis/Afghanis all have a natural right of freedom of religion even if they can’t exercise it today due to corrupt government(s). The right exists, whether a government recognizes it or not.
Many of us feel that the same thing applies to marriage (not “same sex” marriage–marriage inclusive of same sex AND opposite sex participants), privacy, etc. The 9th isn’t giving the Court power to create those rights, but it DOES give them the power to RECOGNIZE that those rights already exist even if the states don’t.
Fine. Then you’re arguing what ought to be, I guess. My point was, and is, that if you use a ninth amendment foundation for your case when you argue for SSM in front of SCOTUS–well, good luck.
But we’re saying quite the opposite, actually. The Feds have no business intruding upon any right established by the states, unless the wording of the Constitution (say, an enumerated right) compels them to do so. My prohibition against intrusion is MUCH stronger than the one you suggest. I want them sitting on their hands almost all the time.
Can you clarify?
I concede no such power to whoever happens to be sitting at the moment, if by that you mean, an unelected individual gets to decide what rights stick–even gets to overturn established law (the will of the people) with no constitutional text to actually support their actions.
They actually have that power by virtue of their position, which has been abused countless times; the ninth is not needed. The ninth does not give them the power to recognize rights, and in fact, it has largely been an inkblot, an irrelevancy, in the history of SCOTUS decisions.
Not what “ought to be” but what “is”, but has been ignored.
And, again, your constant referencing of the 10th Amendment is inapposite. The 10th ONLY applies if a power is not granted to the federal government. The power to protect rights of US persons by finding legislation that violates those rights, is the judicial power granted to SCOTUS. I just find it incredibly silly to insist that the fact that a State COULD if it wanted to, protect a right, means those rights are not being denied or disparaged if the State DOESN’T.
Sure. Like the first paragrah in your post, you insist a great many things I’ve written are wrong simply because the number of cases finding them are limited. I’m simply pointing out that a great many of people, say for example Shodan, think that the Second Amendment protects an individual right to bear arms, despite the fact that no Supreme Court case has ever held as such (at least until DC v. Heller comes down later this year). Even though I’ve provided many quotes, many writings, of the founders and the clear language of the Amendment, those are discounted by you because of the limited number of SCOTUS cases. I’m just curious if you use that argument consistently, or if you pick and choose the Amendments you apply it to.
I fully understand your position and I find it, not only dangerous, but also counter to the intentions of the founders. The founders realized, as do a great many people, that the “will of the people” will be used to deny rights to others. To protect against those kinds of actions, they created a system of government with checks and balances, where “the will of the people” is the final decision maker, but is also protected against. So they gave the judicial power, including the power to protect rights (whether enumerated or not, as the 9th Amendment says), by striking legislation, to the judiciary. They didn’t, as so many seemingly want, to allow the mob to rule. So they put up a check on that power. But, they even went beyond that, to deal with people like me who want a check on the “Will of the majority” when that will violates the rights of the minority. And left the ultimate power to the people, who can amend the Constitution. I’m sorry if you find amending the Constitution such a burden, but if you’re going to deny certain people rights, you better have a damn good reason.
So you are claiming that the judiciary power includes enumerating rights, but not interpreting the Constitution.
To put it another way, the Supreme Court has stated explicitly that the Ninth is not a source of substantive rights. This is their interpretation of the Ninth Amendment. But you claim they are wrong in so interpreting, based on - well, nothing. You don’t seem to be able to come up with any principle beyond “they disagree with me, so they must be wrong”.
I guess we can take it as given that you have no answer to the points I made in my previous post. You have no reasonable basis for your assertions about disparagement and denial being exclusively a function of the judiciary, and you can find no cite that the Founding Fathers intended the Supreme Court to have the power of enumeration. Essentially, you have been talking out your ass for the last three pages or so. No surprise there.
Let’s imagine that a future Court, benefitting from eight more years of a Republican presidency, finds a Due Process right to life for a fetus, and outlaws all abortion based on that finding.
How will you feel about the five unelected justices who have imposed that rule, and the system that encouraged such sweeping social change via those five?
We might imagine the huge electoral backlash that would result; the Dems would probably pick up the White House after such a ruling. But they couldn’t amend the Constitution to overturn the ruling…
There is a constitutional right to life. The issue is whether or not a fetus is a person for Constitutional analysis.
But, I won’t fight the hypothetical.
The same way I feel about Roe v. Wade. The Supreme Court got it wrong, and the ruling should be overruled. However, if the people want to change it, they can amend the Constitution.
Nor has the pro-life movement been able to amend the Constitution overrule Roe.
An easier, and as we’ve seen recently more effective, way is to work for the election of Presidents who will pack the court with justices who can be expected to rule the way you want them to on your hot-button issues. Avoids all that messy and frustrating on-topic politics and failed-persuasion stuff.