Ninth Amendment Rights

[David42]

@Acsenray

By the way, the Declaration of Independence also asserted a right to kill Native Americans. Is that a Ninth Amendment right too?

The DoI asserted no such right. it complained that the government of england had incited the native americans to war against us. We do have a right to kill soldiers sent against us in war, though.

@Acsenray

But it’s not the founding instrument of our government. The Declaration of Independence has no legal force under our law.

No, it isn’t and I am not claiming that it does have the force of law. I am claiming if you want to know what other rights the framers had in mind and want to look at the context of the times for general ideas of what they might have accepted as rights, the DoI is a good place to look. It’s the ninth amendment that has force of law.

[David42]

@Acsenray

There are at least three levels of scrutiny applied when someone asserts rights under U.S. law. “Strict scrutiny” applies to the “most important” rights.

You might have heard of Roe v. Wade? – “Where certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest’ …”

There you go, some rights are more important than others. “Fundamental rights” are given a higher level of protection.

Another level of scrutiny, “intermediate scrutiny,” applies to Equal Protection rights, particularly in the case of gender discrimination.

All other rights are judged under “rational basis” scrutiny.

Note that all three of these only apply to rights under the U.S. Constitution. Any other “rights” are not subject to the constitution at all, not to mention the Ninth Amendment.

You’ve just outlined the three levels of scrutiny for suspect classes in fourteenth amendment equal protection jurisprudence, not standards for determining rights in general.

I’m staring to think you really do not have a clue what you are saying.

[David42]

@Acsenray

There is very little jurisprudence on the Ninth Amendment. U.S. Public Workers v. Mitchell, 330 U.S. 75 (1947), says that there is no Ninth or 10th amendment right when the Constitution explicitly grants Congress power (supporting the proposition that the constitution trumps non-constitutional rights).

A concurring opinion in Griswold v. Connecticut, 381 U.S. 479 (1965), says that the Ninth Amendment is not an independent source of rights.

Another concurring opinion in Doe v. Bolton, 410 U.S. 179 (1973), states “The Ninth Amendment obviously does not create federally enforceable rights.”

Now pay attention to the difference in meaning between “creating a right” and “preserving a right.”

The ninth does not create any new rights. It preserves the ones we already had.
Nice try, but you still need to cite for your proposition.

[David42]

@Acsenray

The U.S. Constitution does not give you a right to property. It gives you a right not to be deprived of property absent due process.

Same thing, as far as the government is concerned. I have a right to property against others stealing it by the means of criminal statutes.

You keep desperately trying to build the strawman that I have claimed a right to “be lazy and for others to provide my living,” which is nothing near anything I actually have said.

People die if they do not eat. The idea that the basic fundamentals of existence, that you have a right to perform these things, is an absurd thing to want to deny. What happens if anybody, and I MEAN ANYBODY, government or private, prevents you from eating, defecating, sleeping, wearing clothing, seeking shelter, using medication or receiving treatment for medical conditions, etc.? Can anyone prevent others from these things in ANY circumstances? No, that’s why they are rights. They’re not unlimited; I can’t sleep in a library bathroom; but the library security guard isn’t there to stop me from sleeping, period, he’s there to preserve the reasonable operation of the bathroom.

[David42]

@Acsenray

There are at least three levels of scrutiny applied when someone asserts rights under U.S. law. “Strict scrutiny” applies to the “most important” rights.

cite. I wanna see where the S. Ct. explains that to me.

@Acsenray

You might have heard of Roe v. Wade? – “Where certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest’ …”

*Roe v. Wade *nowhere claims to distinguish certain levels of rights. It claims a mother has rights and a fetus has none under the due process clause, not that the mother’s are superior.

[David42]

@David42

You’ve just outlined the three levels of scrutiny for suspect classes in fourteenth amendment equal protection jurisprudence, not standards for determining rights in general.

I’m staring to think you really do not have a clue what you are saying.

Part of this got chopped somehow, probably my fault.

I went on to say that these are also standards in other areas where the court weighs a governmental interest against a right as well but is not a test over which right is more important.

[Really_Not_All_That_Bright]

@Little_Nemo

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

So what do you think some of our unenumerated rights are?

The right to enshrine confusion in our founding documents?

[Qin_Shi_Huangdi]

@Little_Nemo

Qin, those are already in the Constitution. They’re all explicitly listed in the Fifth and Fourteenth Amendments.

Conceded on the 14th Amendment but for the other two I was meaning freedom from other private citizens rather than necessrilly the government.

[Really_Not_All_That_Bright]

The 13th amendment applies to private citizens, so liberty is covered at least to a degree.

[Acsenray]

@David42

No, it isn’t and I am not claiming that it does have the force of law. I am claiming if you want to know what other rights the framers had in mind and want to look at the context of the times for general ideas of what they might have accepted as rights, the DoI is a good place to look. It’s the ninth amendment that has force of law.

…

Now pay attention to the difference in meaning between “creating a right” and “preserving a right.”

The ninth does not create any new rights. It preserves the ones we already had.

You keep asking for cites here, but offer none yourself. You show me has any specific right been found under the Ninth Amendment, whether in the Declaration of Independence or otherwise?

@David42

You’ve just outlined the three levels of scrutiny for suspect classes in fourteenth amendment equal protection jurisprudence, not standards for determining rights in general.

Uh, no. What I’ve shown you is exactly what I said – that there are “fundamental” rights protected by the constitution that receive more protection than other categories of rights.

@David42

You keep desperately trying to build the strawman that I have claimed a right to “be lazy and for others to provide my living,” which is nothing near anything I actually have said.

You asserted, in your own words, that there is a “right to eat” under our law. There is no such right. There is a big distinction between a “right to property” and a right not to be unduly deprived of property, and it is right there in the plain meaning of the words that you used. There are no strawmen here.

[Hamlet]

@Acsenray

You show me has any specific right been found under the Ninth Amendment, whether in the Declaration of Independence or otherwise?

Not under the 9th. But the Supreme Court has found that the Constitution does protect rights that were not specifically enumerated in the text of the Constitution. The right to die, to travel, privacy, physical intimacy and others have been found to be protected by the Constitution without enumeration.

I think it would be much tidier, and more honest, for the courts to avoid the tortured logic of substantive due process or other ends around. So, while the Court has not specifically named the 9th Amendment as a font of rights, it, at the least, has found a way to protect some unenumerated rights.

[Really_Not_All_That_Bright]

@David42

cite. I wanna see where the S. Ct. explains that to me.

*Roe v. Wade *nowhere claims to distinguish certain levels of rights. It claims a mother has rights and a fetus has none under the due process clause, not that the mother’s are superior.

You just spend two pages arguing with me about SCOTUS’ role in Heller but haven’t actually read Roe?

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.

[El_Zagna]

@Acsenray

But who has the authority to give it any substance? Whom would you trust to say what’s in it and what isn’t?

Well, it’s taken me a while to get back to this thread, and a lot has been covered, but let me just address this. It seems to me that it would be a burden of proof kind of thing. It’s assumed that you have whatever right that you claim and the burden is on the government to prove that you don’t.

[David42]

@Acsenray

You keep asking for cites here, but offer none yourself. You show me has any specific right been found under the Ninth Amendment, whether in the Declaration of Independence or otherwise?

In Roe v Wade, Justice Blackmun wrote for the court “The right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions on state action or in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision to terminate her pregnancy.”

@Acsenray

Uh, no. What I’ve shown you is exactly what I said – that there are “fundamental” rights protected by the constitution that receive more protection than other categories of rights.

Please give me a citation to a source that will lay out what these levels of rights are.

@Acsenray

You asserted, in your own words, that there is a “right to eat” under our law. There is no such right. There is a big distinction between a “right to property” and a right not to be unduly deprived of property, and it is right there in the plain meaning of the words that you used. There are no strawmen here.

go on and answer my question of what would happen to you if you forcibly prevented someone from eating.We have murder statutes because people have a right to life and you can’t live without eating. Starving someone will get you locked for one version of homicide or another.