I think that there are a number of ways to ascertain what are Ninth Amendment rights. First, looking at the journal of the First Congress, anything that it was decided was too obvious to require spelling out would be included. Anything that would be an obvious corollary from an enumerated right would be included, e.g., my earlier example of the freedom of speech including the freedom to be heard by a willing listener. Anything which is recognized in the legislation of all states, even by implication, would be included – e.g., save eugenics and miscegenation laws, all states implcitly recognize the right to marry (a person of the opposite sex who is of age and not otherwise committed). The right to own property is implicit in laws protecting one’s property from illegal takings.
All these are protected as against Federal encroachment by the Ninth, and of course from State encroachment by the Fourteenth. You may argue that they are implicit in enumerated rights, but I am equally uncomfortable with the “emanations and penumbras” language that would find them there.
As regards the fuzzy pink bunnies, I have every right in the world to enjoy petting a fuzzy pink bunny which is my own property; the pleasure I may get in petting said bunny is a usufruct of my property rights in said bunny. And I find no enumerated, universally acclaimed, or Court-identified right to pet bunnies in general at any time or place, whether wild or belonging to another – unless the bunny in question be a consenting adult Playboy bunny in a place with reasonable expectations of privacy, the right to pet which is specified in Lawrence!
It isn’t a “diss,” it’s a legitimate criticism of Poly’s position. Poly claims certain things are “universally acknowledged.” His basis for that statement is…well, because they just are. The assertion is indeed unfalsifiable.
If it isn’t, answer me this: how do we go about verifying if a claimed right is “universally acknowledged” or not? It certainly isn’t just a matter of measuring raw public opinion, for Poly claims as universal certain rights which are decidedly unpopular with the hoi polloi. So what then? If his theory isn’t unfalsifiable, please tell me how to falsify a given claim under that theory.
Poly: your list is a hodgepodge. Some you correctly surmise my agreement with as necessary to vindicate enumerated rights (property ownership, free speech, pink bunnies). Others are protected from encroachment by the fact that they are beyond the power of the federal government per the 10th amendment (marriage). As for things rejected as “too obvious” – we’ll have to see; is it rejection because it’s too obvious or is it rejection, period?
Dewey: would you support an amendment to the constitution - arrived at by the legitimate democratic process, and with whatever specific wording you’d like - making explicit the “right to privacy” that broad construtionists say is already implicit in the Bill of Rights? If not, how about for some of the specific rights claimed as part of the “right to privacy” - an amendment for the right to consensual sexual intercourse between adults? An amendment guaranteeing the right to marry freely? An amendment for the right to travel? How do you distinguish between rights that should be guaranteed in the Constitution, and rights that are better left up to “the people” and their democratically elected legislatures?
The answer, as per that thread, depends heavily on the wording of a proposed amendment. The law of unintended consequences is a bitch. This is probably the sort of thing that is best left to ordinary legislation, which is better equipped to handle exceptions to the general rule (including adding exceptions that weren’t thought about at the time of the original legislation).
As for “which rights should be Constitutional vs. which should be statutory” – well, that’s just a matter of judgment, depending on factors like how important the right is perceived as being, how likely it is that specific protections will need to be adjusted down the road, and how certain the right’s proponents are that they want things to be permanent. There isn’t a hard and fast rule.
Good example: nondiscrimination in private enterprises. Good principle, right? Pretty important, right? Could well be a constitutional amendment. But the 1964 Civil Rights Act seems to be working just fine. And yet, no one seems to be worried about the fact that Congress could theoretically repeal it at any time.
Dewey, I’m not looking to have a “magic formula” for how you can identify and enumerate the unenumerated rights – that would be contrary to the reason I believe the amendment is there in the first place. Rather, I’d suggest the following:
As we agree, the legislature can recognize a right by statute.
The executive can recognize the existence of a right by making the judgment not to act in ways that impede that right. E.g., ignoring for the moment that Wisconsin case in which SCOTUS defined a “right to travel,” Messrs. Ashcroft and Ridge are validating that right by, rather than banning travel, identifying means whereby travelers can demonstrate that they pose no security threat.
In response to allegations of the existence of a right in a case or controversy, the courts may take judicial notice of the comonly held perception over the extent of American history and the breadth of viewpoints held by Americans that such a right exists. This is what the court did with regard to the right to marry in Loving v. Virginia. Americans had assumed they could marry as they chose without government interference, despite what influence private parties might bring to bear on that choice – and with the caveats regarding ability to contract a marriage, such as being above the age of consent and not presently party to a legal marriage, taken into consideration. The court held that discrimination on the basis of race was an improper use of police power to regulate the exercise of that right.
King of Spain, I think it’s only fair to distinguish Dewey’s political stances, where he’s said he supports a variety of freedoms not presently acknowledged by various jurisdictions, from his firm ethical commitment as a lawyer to the principle of strict construction. To draw in a parallel from a related Pit thread, he’s stated his ready support of making civil unions with the rights and privileges of marriage available to gay couples – and if I read him right, he has no personal objection to gay marriages, but merely feels that the civil unions route is the more politically feasible one in the current American political climate. Nonetheless, he is opposed to the idea of making a legal claim that gay people have an inherent right to marry or contract a civil union, because he sees nowhere in the Constitution a “hook” on which to hang that claim. Rather, he would prefer to see the 50 state legislatures enact laws similar to Vermont’s, and Congress enable such unions for D.C., Guam, etc., and for purposes of citizen relationships with the Feds. such as filing income taxes, the definition of “family” in Federal housing etc.
Dewey, given all the above, let me set a hypothetical scenario for you, and ask how you would deal with it. Suppose Massachusetts decides to give legal recognition to gay marriages, on a close parallel with the scenario that played out in Vermont – but with the difference that the legislature, acting on a mandate from the state’s highest court, decides to go whole-hog and use the term “marriage.” Suppose too that the residency requirements are quite brief. Now, let us assume that Homebrew and swampbear decide to avail themselves of the Massachusetts law, travel there and establish residency, marry, and return to Texas. Now, further assume that they are impeded in taking some legal action – buying a house together as tenants by the entireties, say – by Texas’ refusal to recognize their marriage. Frustrated by this, and realizing that you have returned to Texas and taken up the practice of law, they engage your professional services to argue their case. Given that scenario, how would you proceed? I recognize that your initial advice to them would be that it would be a difficult case probably not worth pursuing, but assume they reject that advice and determine to proceed nonetheless. Given your personal and jurisprudential stances, what would you try to do in their behalf?
I would say “I’m a corporate lawyer, not a litigator. Here is minty green’s office number.”
I note from the outset that I am not ethically obligated to represent any particular client. Every lawyer who wishes to avoid starvation will periodically represent clients whose vindication requires arguing precedents with which he does not agree 100%. But a lawyer also isn’t obligated to pursue an argument with which he has serious personal reservations. Where that line is drawn is a matter of individual conscience. I’m assuming for the sake of argument that I’ve agreed to take this particular client. What would I do?
Actually – and this does tie into my being a transactional practitioner – I would find alternative means to accomplish whatever their specific goals happened to be. For example, the house could be purchased as a joint tenancy, which would give them the same survivorship benefit as a tenancy by the entirety. A contract between the two agreeing that no portion of the land will be sole without the other’s consent or unless the couple splits up and which contains an injunctive-relief clause would complete the picture.
If you’re saying I must litigate, I would use whatever precedents I can find to vindicate the rights of my client, as per my ethical obligations. I don’t have to be personally fond of those precedents to use them on my client’s behalf.
On the other hand, I’m not ethically required to make arguments I think are foolish, friviolous or otherwise unlikely to succeed. My clients could not, for example, order me to pursue a FFC clause defense, because personal feelings aside, in my professional judgment that is a frivolous argument given the manner in which that clause has been interpreted by the courts. If a client wants someone who will waste the court’s time, he can find another lawyer.
As for the first part of your post – suffice it to say that your approach is, again, unfalsifiable. It’s easy for the courts to say something is a “commonly held perception” without actually having to demonstrate the factual validity of that assertion. And it’s ludicrous to suggest that because some executive actions have been taken with an eye towards not annoying the electorate that a right is created thereby. Your example is also inaccurate. The FAA did indeed ban all air travel for a week after 9/11, for example.
Also N.B.: The “right to travel” is something of a misnomer; a better term would be “right to relocate” – it basically says a state can’t discriminate based on length of residency – and nothing the DOJ is doing has anything to do with that.
I would say “I’m a corporate lawyer, not a litigator. Here is minty green’s office number.”
I note from the outset that I am not ethically obligated to represent any particular client. Every lawyer who wishes to avoid starvation will periodically represent clients whose vindication requires arguing precedents with which he does not agree 100%. But a lawyer also isn’t obligated to pursue an argument with which he has serious personal reservations. Where that line is drawn is a matter of individual conscience. I’m assuming for the sake of argument that I’ve agreed to take this particular client. What would I do?
Actually – and this does tie into my being a transactional practitioner – I would find alternative means to accomplish whatever their specific goals happened to be. For example, the house could be purchased as a joint tenancy, which would give them the same survivorship benefit as a tenancy by the entirety. A contract between the two agreeing that no portion of the land will be sole without the other’s consent or unless the couple splits up and which contains an injunctive-relief clause would complete the picture.
If you’re saying I must litigate, I would use whatever precedents I can find to vindicate the rights of my client, as per my ethical obligations. I don’t have to be personally fond of those precedents to use them on my client’s behalf.
On the other hand, I’m not ethically required to make arguments I think are foolish, friviolous or otherwise unlikely to succeed. My clients could not, for example, order me to pursue a FFC clause defense, because personal feelings aside, in my professional judgment that is a frivolous argument given the manner in which that clause has been interpreted by the courts. If a client wants someone who will waste the court’s time, he can find another lawyer.
As for the first part of your post – suffice it to say that your approach is, again, unfalsifiable. It’s easy for the courts to say something is a “commonly held perception” without actually having to demonstrate the factual validity of that assertion. And it’s ludicrous to suggest that because some executive actions have been taken with an eye towards not annoying the electorate that a right is created thereby. Your example is also inaccurate. The FAA did indeed ban all air travel for a week after 9/11, for example.
Also N.B.: The “right to travel” is something of a misnomer; a better term would be “right to relocate” – it basically says a state can’t discriminate based on length of residency – and nothing the DOJ is doing has anything to do with that.
I would say “I’m a corporate lawyer, not a litigator. Here is minty green’s office number.”
I note from the outset that I am not ethically obligated to represent any particular client. Every lawyer who wishes to avoid starvation will periodically represent clients whose vindication requires arguing precedents with which he does not agree 100%. But a lawyer also isn’t obligated to pursue an argument with which he has serious personal reservations. Where that line is drawn is a matter of individual conscience. I’m assuming for the sake of argument that I’ve agreed to take this particular client. What would I do?
Actually – and this does tie into my being a transactional practitioner – I would find alternative means to accomplish whatever their specific goals happened to be. For example, the house could be purchased as a joint tenancy, which would give them the same survivorship benefit as a tenancy by the entirety. A contract between the two agreeing that no portion of the land will be sole without the other’s consent or unless the couple splits up and which contains an injunctive-relief clause would complete the picture.
If you’re saying I must litigate, I would use whatever precedents I can find to vindicate the rights of my client, as per my ethical obligations. I don’t have to be personally fond of those precedents to use them on my client’s behalf.
On the other hand, I’m not ethically required to make arguments I think are foolish, friviolous or otherwise unlikely to succeed. My clients could not, for example, order me to pursue a FFC clause defense, because personal feelings aside, in my professional judgment that is a frivolous argument given the manner in which that clause has been interpreted by the courts. If a client wants someone who will waste the court’s time, he can find another lawyer.
As for the first part of your post – suffice it to say that your approach is, again, unfalsifiable. It’s easy for the courts to say something is a “commonly held perception” without actually having to demonstrate the factual validity of that assertion. And it’s ludicrous to suggest that because some executive actions have been taken with an eye towards not annoying the electorate that a right is created thereby. Your example is also inaccurate. The FAA did indeed ban all air travel for a week after 9/11, for example.
Also N.B.: The “right to travel” is something of a misnomer; a better term would be “right to relocate” – it basically says a state can’t discriminate based on length of residency – and nothing the DOJ is doing has anything to do with that.
The hamsters clearly differ with your stance, Dwey, and are making their displeasure known!
Seriously, thank you for your answer. I do disagree that I have effectively set no bounds – I concur that the bounds are less than precise, but IMHO that was the purpose of the Ninth Amendment. I believe that a judge, or for that matter a legislature or chief executive, would be able easily to distinguish between a “frivolous” right without consensus, and the controversial application of a right acknowledged to exist by consensus. (BTW, thank you for the “right to relocate” comment – I had read in secondary sources that the Supremes found a “right to travel” in that case, but your term seems to define much more clearly the issues dealt with in that decision.)
It is not a far stretch, however, from the Fourth Amendment right to be secure in one’s person from unreasonable search and seizure to asserting a right to reasonable freedom in what one will privately do with one’s body. I am aware that it is a stretch – that the literal words do not extend to anything but search and seizure. Had I been sitting on the court at the time of Roe v. Wade I would have concurred in the result but written separately; I find Blackmun’s approach very much lackin in anything resembling legal rigor, even allowing for the Brandeisian approach.
[DEWEY: just as a little self-defensive aside, the key word of yours that I was reacting to in my sprited defense of Polycarp was “conveniently,” which sounded like an accusation of intellectual dishonesty. More likely than not, you didn’t intend that connotation. But enough.]
POLY, re your post of 8:29 AM, I DO see great merit in your comments on how the three “coordinate branches” might approach the question of unenumerated rights.
A comment not to anyone in particular:
We controvert a good deal about whether the Constitution requires recognition of a certain “right.” One frequent response is to the effect that: Since the Federal Government is not granted the power to do the putative rights-violating action in the first place, all we need to do is rein them in. What is left unspoken is that oppression of a putative “natural right” by a State government is just as much an offense as similar depredations by the Feds. The value of the recognition of (aspects of) the unenumerated rights is that it puts the reins on all governments, Federal, State, and local.
This, of course, is part of the problem: I can abstract away any purported right into a glittering generality that sounds good to everybody. A “right to reasonable freedom in what one will privately do with one’s body” sounds great, right? But let’s put that into concrete action: does that mean you have a constitutional right to use heroin?
Dewey, I had largely decidd to let this thread slide down the forum threadlist into the archives, since it was clear we were at an impasse on basic legal philosophy that neither could bridge.
Then in more-or-less casual reading, I found a reference to this:
The above is excerpted from a concurring opinion by Mr. Justice John Marshall Harlan II in Griswold v. Connecticut, in which he categorically rejects the incorporation doctrine. (Page down for Justice Harlan’s opinion.)
I very much wish to see your comments on his approach. Thanks.
I swear this thread comes back from the dead more than the villain in a teen slasher flick.
[Pacino]
Just when I think I’m out, they pull me back in…
[/Pacino]
Poly, I’m not sure why you would think I would react any differently to that passage, or Harlan’s dissent in general, than I would to any attempt to gin up rights out of thin air via “substantive” due process. Harlan’s limit – rights "implicit in the concept of ordered liberty – isn’t a limit at all; it’s a meaningless feelgood phrase into which anyone can insert virtually any desired “right.”
If you’re asking me about 14th amendment incorporation of the Bill of Rights to the states – well, I’ve stated in other threads that I think that is a suspect approach historically speaking, but that so much of constitutional law has been built upon that premise that arguing over it is pointless. To eliminate that aspect of constitutional jurisprudence would be disaster: the cure would be worse than the disease, undoing many keystone precedents that people have come to rely on. Stare decisis carries the day.
I guess then my answer is “what exactly are you asking me here?”
I’m also curious as to your response on my last post before this thread slid into relative obscurity.
