Basically, there are two different kinds of ‘rights’. Natural rights, and political rights.
A natural right is anything you can do. If you can swing your fist and hit someone, you have a ‘natural right’ to do so. But of course, the other person has the right to hit back.
When people come together into a community, they recognize that it is to everyone’s advantage to forego some natural rights. I’ll give up my right to punch you in the face, if you agree to give up your right to punch me in the face.
To ensure that people follow this contract, a sovereign is established.
Inalienable rights are those rights that we agree can NOT be bargained away by the populace. They are the fundamental rights that all people must retain for themselves.
So when someone asks if you have a ‘right’ to drive, the answer is that of course you do, if you can get a car and fill it with gas. The state puts limits on that right, however. You must be licensed, and you must abide by the rules of the road. But when people start with the assumption that there is no right to drive, and therefore the state can stop anyone from driving for every reason, they turn the equation on its head. You start from the right to drive, and then the burden is on the state to justify modifying or removing that right.
A typically well-crafted thread on an important topic, which I typically cannot resist contributing to.
As I am not a lawyer or Constitutional scholar, readers may find reason to dismiss my comments out of hand–but I hope you won’t.
The word “rights” has no fixed meaning. It has been used to confer honor on various things; or perhaps I should say, to confer various kinds, modes, and degrees of honor.
Furthermore, there is a tendency for those meanings to vary with time and place: it reflects the culture in which it is used. (Thus it is like “love.”)
I gather that “rights” (as in “Bill of Rights”) was used in post-Revolution America to designate certain privileged forms of conduct that the governing authority could not impair or impede, howsomever much they might wish to. Over time this has become increasingly grafted to Continental (ie, French) notions of the “natural rights of Man”–which adds the idea that the forms of conduct are not merely “recognized” as rights by this or that human authority, but indeed “really are” rights by nature (as much as 2 + 2 “really is” 4). Thus any government is objectively wrong to impair such rights, whatever “the law” may say.
Some agree that there are such “natural rights,” some do not. Surprisingly, Robert Bork is said to hold to a “natural rights” doctrine (as do most pro-lifers, I think).
I myself believe that there are “natural rights” arising from our natures as mortal human persons. It is morally wrong for a government, or electoral majority, to impair such rights; and not morally wrong for an individual to resist such impairment.
Those natural rights cannot be (fully and exhaustively) enumerated. Furthermore, even those that can be set down on paper often elude a precise and unambiguous verbal formulation. We’re dealing with a deeper level of reality than The Law or The Constitution, a level wherein human language only imperfectly limns the silhouette of the real subject.
Though there are substantial numbers of persons who are not willing to affirm a “natural rights” approach to law and governance, some of their reluctance arises from an intuitive grasp of the dilemma expressed in #6 preceding. Others actually “accept” the doctrine without “affirming” it, as they are philosophically opposed to subjective or intuitivist elements in decision-making (not recognizing that they do in fact use such elements continually, IMHO). Anyone who evinces shocked disapproval of a Constitutionally “possible” law (such as a law forbidding people to walk upright on their hind legs) is giving evidence of a “natural rights” foundation somewhere within.
Precursorial elements of a natural-rights doctrine are part of the American political tradition, not an alien import. The Declaration of Rights of 1774, by the Continental Congress, speaks of retained rights superior to any sovereign power. The Declaration of Independence famously spreaks of “the laws of nature and nature’s God.” Call it self-serving rhetoric, the idea was surely at large.
As is often observed, the Articles and the successor Constitution were something of a step away from a natural-rights philosophy. There is a reference to the “privileges and immunities of citizens,” which are not spelled-out and, IMHO, refers to the normal, natural, and customary rights accrued by a person merely by hirs being a citizen. (There is no indication, one way or the other, that such rights are limited to those recognized at the time of writing.)
The Bill of Rights may be regarded as a partial return to the natural-rights philosophy. It is at least worth noting the use of the term “right” in Amendments 1, 2, 4, 6, 7, and 9. It doesn’t seem a logical reading to regard “rights” as being used in the “political” as opposed to “natural” sense (the distinction I make in #3 above): the statements are not reminding the government of privileges it has previously conferred but is in danger of ignoring, but rather seem to be identifying certain preeminent rights extant yet not politically conferred. Note that “the right of the people peaceably to assemble etc.” might have been worded as “the ability of the people etc.”. The difference is the recognition of a (natural-) right.
None of which is to imply that the putative natural rights recognized by the wordage of the Constitution really ARE natural rights; only that the Framers and Ratifiers were willing to formally agree that they were to be so-regarded.
Now we come to the 9th and 10th Amendments. Judicial custom and popular mythology as decided that these sets of words, among all in the Constitution, are to be regarded as superfluous. Their authors probably did not so regard them. Nor did the ratifiers approve a codicil stating “this Constitution is the supreme law of the land, excepting Amendments 9 and 10, which are only expressions of nice sentiment and have no effect.” As a matter of fact, there has been recent recourse to the 10th, regarding a states’ rights issue. But with one brief and half-hearted exception, the 9th (which appears to recognize that persons have certain unenumerated–presumably “natural”–rights that government cannot disparage–presumably by legislating against them) and the final clause of the 10th (referencing certain powers reserved to “the people”) have been ignored at the highest level of judicial interpretation. Why?
Why indeed? I’m not going to let this go. Whenever I have brought the issue before the SDMB on various “has the Court gone too far?” threads, I have either received no response, OR been given a short course in the historical, and now-prevailing, attitude toward Amendments 9 and 10. NONE of that is dispositive. The words are there; they have as plain a meaning as anything else in the document; they absolutely DO provide a TEXTUAL BASIS for overturning particular legislative acts. They confer upon SCOTUS a positive obligation to scrutinize the products of the Congress and the State Legislatures to ensure that they are not “disparaging” certain unenumerated rights retained by the people, nor infringing upon any of their reserved powers. For a Justice to refuse this obligation constitutes malfeasance, thus a “bad behavior” warranting impeachment.
It may be true that this doctrine of a substantive 9th and 10th gives the Court more power than it wants to have; surely more than others want it to have. Some may argue that it isn’t our “style of government” or “isn’t democratic.” Well, we are not promised anything like a plebiscitory majoritarian democracy, but rather a republic with a certain form and structure. I for one have no objection to SCOTUS taking a co-equal role, with the Executive and the Legislative, in shaping our society. Let it function as a council of wise elders reigning-in the more politically-driven branches: perhaps if we recognized it as such in an open way, our representatives would be more careful in their appointments. (We need fewer former lawyers-turned-judges, more historians, ethicists, and philosophers.) There is popular recourse via the impeachment process (which only requires that behavior be deemed “bad”), expanding the membership of SCOTUS (still possible despite FDR’s experience), or our two methods of Constitutional amendment.
There is no guarantee that natural rights will never be in (apparent) conflict. A pregnant woman’s putative right to medical autonomy and privacy may conflict with the putative right of a zygote-embryo-fetus to be brought to term. The implied contractual expectations of a married person may be impaired by such apparent rights as are established by no-fault divorce-on-demand. The presumed right of voters to have their moral convictions expressed through legislation may run up against the presumed right of adults to be physically intimate in whatever manner fulfils them. All three branches are, or ought to, make their distinctive contributions to a fair and reasonable resolution. “Real” rights may be eternal and transcendent, but our knowledge of them is temporal, limited, and partial: thus the list of rights must be expected to evolve. Otherwise we elevate an unhealthy obsession with mere consistency above all other human values–and THAT is nowhere to be found in our Constitution.
I did not claim you should. But one must pay a certain amount of attention to the ends, not just the means. When the means take you to ridiculous or destructive ends, that’s a pretty good indication that your means need some adjusting.
I’ll simply add what I wrote in that other thread on this topic:
I think the proper reading of the ninth amendment is as a safeguard against exclusivity. Certainly, there are other sources of rights: state constitutions, federal and state statutes, treaties, etc, etc. The ninth amendment simply prevents someone from saying, say, that New York’s constitution cannot provide heightened free speech protections on the grounds that the federal constitution is an exclusive list.
Contra to your interpretation, that does not make the 9th amendment “superfluous” or “only expressions of nice sentiment [which] have no effect.” That view gives the ninth amendment an important role in our constitutional scheme.
You ask why it’s been “ignored” – well, I would say for the same reason the third amendment has been all but ignored. There just isn’t all that much to say about it. The amendment is reasonably clear. No one challenges, say, a state constitution’s provision of additional rights because the ninth amendment makes clear that such a challenge would be folly.
So, basically, you were responding to a point I did not make. **
You may be right if a particular philosophy consistently brings you to destructive ends. I do not think a committment to self-governance has led us so far astray – quite the opposite, really. In which case I will join Justice Holmes in helping my fellow man to Hell if that is his intended destination.
In general, you’re quite right. And in fact, damn few legislative enactments are ever invalidated by the courts. But it is incoprrect to claim that “self-governance” has not sometimes led the country far astray in some very serious ways. Happily, checks and balances apply to all of the branches of government, including the legislative branch.
Except, of course, that we’re not talking about helping a man to hell. We’re talking about the legislature compelling people to go to hell. Rather an important distinction, I think.
Just to acknowledge that I’ve ben reading responses with great interest and pleasure – in particular the philosophical exploration of the concept of “right” by Sam Stone and Scott Dickerson, and am pleased that w seem to be working at communication and analysis more than confrontationalism. (Dewey, many thanks for your efforts in dealing with the issue. As somebody – Scott? – commented somewhere today, you deserve compliments, not criticism, for standing firm by a school of Constitutional analysis that you subscribe to, rather than abusing it as the people you distanced yourself from in point 1 of your first response do. Though I often disagree with you, I can respect the integrity of your position. Thanks for sharing it.)
You say “…I think the proper reading of the ninth amendment is as a safeguard against exclusivity. Certainly, there are other sources of rights: state constitutions, federal and state statutes, treaties, etc, etc. The ninth amendment simply prevents someone from saying, say, that New York’s constitution cannot provide heightened free speech protections on the grounds that the federal constitution is an exclusive list… …The amendment is reasonably clear. No one challenges, say, a state constitution’s provision of additional rights because the ninth amendment makes clear that such a challenge would be folly.”
I suppose, then, we disagree on what constitutes a proper reading of the 9th (and the 10th?).
I also find the amendment reasonably clear, yet its clarity leads me to an entirely different conclusion as to its meaning: or rather, as to the range of its reasonable and defensible interpretations.
We agree that there are other sources of rights than the explicit enumerations of our federal Constitution. I maintain that the legislative and judicial mechanisms of BOTH the federal and state governments are without authority to impair those rights (because they are indeed acknowledged to be RIGHTS, not transient privileges or policy choices bestowed by government); and that any such ostensible violation is a matter which, because it arises under the Constitution (namely these two amendments), is subject to SCOTUS review.
You do not agree. I ask you:
What leads you to your interpretation as opposed to mine? (and don’t forget the 10th, please)
Let’s posit that a majority in Lawrence was operating under an unstated acceptance of my interpretation to some significant degree. Would you still characterize the decision as lacking in textual basis, as opposed to working from a textual basis which you find unworthy? (It seems to me there’s a difference.)
As I noted in the other thread, I’ve gone more than enough rounds on this topic, and I’d rather not rehash it all again. Do a search on “ninth amendment” plus “dewey” and “polycarp” and you’ll have plenty of reading. Pack a lunch.
The 10th amendment deals with powers, not rights, and thus is inapplicable here. It limits the reach of the federal government, making clear that any power not expressly reserved for the federal government is held instead by state and local government. As a conservative who favors decentralized government, I’m a big fan of the 10th amendment. **
Yes, for the same reason I posit that the court’s stated reason – “substantive” due process – is extratextual. Convenient redefinition is not a substitute for a genuine textual constitutional provision.
Hence, the revolution that erupted after last Thursday’s decision was announced, right? Looks like there’s plenty of consent out there to me, unless you’re of the highly peculiar worldview that “consent” is only obtainable through representative democracy.
Beats me–my specialty is the law, not apocryphal anecdotes. If you’re suggesting that Holmes was expressing a deep and abiding love for the power of a majority to jail a disfavored minority, I think you and I have very different impressions of Mr. Justice Holmes.
Well now, isn’t this adorable. Any decision made, no matter how unrepresentative or insular the body making that decison, can be considered to have the “consent” of the governed so long as it doesn’t lead to armed uprisings? How very charitable. Why don’t we just dissolve the Congress and install a benevolent dictator – so long as no one raises arms against him, he can say, per minty, that he governs with consent. :rolleyes: **
Holmes was expressing a deep and abiding love for a system that allows people to chart their own course, even if he thinks the particular policy choices they make are downright stupid or even harmful.
And the quotation isn’t apocryphal; it’s from a letter Holmes wrote to Harold Laski in 1920.
Yes, insofar as you’re whining about a legislative-centric vision of “consent.” There’s all kinds of consent, Dewey. Among other kinds, there’s the kind that caused 2/3 of both chambers of Congress and 3/4 of the state legislatures to say “Due Process? What the fuck does that mean? But it’s got a good beat and we can dance to it, so ratify that sucker!” Then there’s the kind of consent where nobody but Bill Frist says “Oh, the horror! Those usurpers in the Supreme Court have stolen the sacred right of our legislatures to send citizens to jail for touching each others’ naughty bits! We must amend the Constitution forthwith so that we may imprison the queers and put the Supreme Court back in its place.”
Then also there’s the kind of consent of people who don’t care that their legislators are all in favor of putting gay folk in prison, or who just think that repealing the estate tax is a whole lot more important than not sticking the queer folk in jail. Ah well, we all have to have our priorities.
Yep, I’m all for having people chart their own course. You can chart your own course straight for the gates of hades, for all I care. But I don’t get to chart your course, and the legislature doesn’t get to chart anybody’s course based on whose adult genitalia they prefer to play with.
And to get back to the original point of the OP: 'Cause that’s the way I was raised.
minty, I am not going to play this game with you. Rather than engage in a serious, idea-driven discussion, you resort to mocking indignation. Substance-free taunting is not the stuff of argumentation.
To wit: you know perfectly well that “due process” were not just two random words chosen from the dictionary; you know perfectly well that representative democracy is what “consent of the governed” refers to; and you know perfectly well that when I speak of allowing peoples to chart their own course, I am not speaking of an individual life but rather of the power of communities to shape themselves collectively.
Others in this thread who are decidedly not of the strict constructionist mindset have managed to have a respectful discussion without mocking the other side or deliberately misstating the other side’s point. When you’re ready to join Polycarp and the others at the adult table, we can continue the discussion.
The problem with this is that jurisprudence is not merely a complicated puzzle with the goal being to solve the puzzle with the right answer. The exercise of jurisprudence is supposed to further the good of society. Any theory of jurisprudence that mandates any particular outcome, without regard to whether those outcomes will be beneficial to society, is morally bankrupt. Bringing benefit of the people must always be the goal of jurisprudence, not slavish adherence to dry formulas and complex rules of logic, no matter how cleverly constructed.
Mocking indignation? No sir. I am pointing out the weaknesses in your argument, which is always easy to do when one’s opponent advocates an inflexible, unyielding doctrine.
To wit: I know perfectly well that “due process” means different things to different people; I know perfectly well that representative democracy is not the only means to measure “consent of the governed”; and I know perfectly well that when you speak of allowing people to chart their own course, you are speaking of the power of legislative majorities to send consenting adults to jail for nothing more than bumping uglies.
Supposed to? Supposed where? Not in the Constitution, and not in Marbury v. Madison.
Why stop at judges? Should policeman punish criminals they think the courts will treat too leniently? Should prosecutors used perjured testimony to convict defendants they think are guilty? Should Oliver North secretly transfer money to the anti-Commnists? Should Nixon preserve his Presidency (for the good of the country) by covering up the Watergate burglary?
There’s a lot to be said for public servants to follow the rules and the formulas, even when they think they could do more good by ignoring them.
Dewey, a wak point in your assertiuon is that we are not a representative democracy but a Constitutional republic. While the people choose the members of the two houses of Congress, their state legislators, and a variable number of state executive branch officials, the President is chosen indirectly, and he in turn, with the advice and consent of the Senate, appoints the people who do most of the actual work of governance. And the powers of all the above are delimited by grundlagen – the U.S. Constitution and the state constitutions, which delimit what such officials can do.
Included in that picture are the appointments of Federal judges. Their choice by the people is equally indirect as, say, the Secretary of State. And, having been nominated and confirmed by the same process, their job is the same in essence – to carry out the considered and deliberate will of the people by working within and at the same time shaping the legal framework entrusted to them, indirectly, by the people.
In short, a judge ruling on constitutionality is no more and no less representative of the will of the people than is a given congressman or the president.
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
december, yes, you’re right, there is something to be said for following rules and formulas. The problem arises when you put the rules and formulas ahead of the purpose of having the rules and formulas, which is what I think strict constructionalists do. The adherence to the rules has to be thinking adherence with room to recognize that the rule is wrong and must therefore not be followed.
I believe the Constitution itself states its purpose for existing. I recall it having something to do with the desire to “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity”. Seems to me that furthering the good of society describes those goals pretty well.