As for my hostility towards democracy:
Any State that still reserves the power to kick in your door and drag you away to jail for the sole reason that your lover has the “wrong” pair of genitals is in no way deserving of my respect for this “democratic” decision.
Dewey, I dislike lecturing you on the basics of American government at a high school level, but this one seems necessary from my POV, and I hope you won’t see it as being as supercilious as it probably will sound:
We live in a nation whose government is characterized by separation of powers, and which consists of three branches: the Congress, the Administration (headed by the President), and the Federal court system (headed by the Chief Justice and the Supreme Court). Each has an assigned role in how our government operates, and without each playing that role, we do not live in a Constitutional democracy. That specifically includes judicial review of laws in the context of a true case or controversy involving it, and judges construing the law as they best understand it.
Like you, I’m opposed to a full-fledged nebulous assumption of the existence of rights on no evident grounds. But unlike you, I believe that some of the vague terms in the Bill of Rights and elsewhere (e.g., the Fourteenth) were left vague for good reason, and the Ninth Amendment was placed there as a safeguard against the assumption that the first eight Amendments summed up all rights that were guaranteed by the Constitution. “Cruel and unusual punishment” means that which a judge feels is unduly cruel or unusual either in an absolute sense (e.g., drawing and quartering) or as applied to a specific case (e.g., applying the maximum sentence for a given category of felony to a relatively minor non-violent felony offense with mitigating circumstances present).
I’d suggest that one way of figuring out what the Ninth actually means is the hoary old concept of “judicial notice” – the act of the judge (often prompted by counsel) in observing the world outside the courtroom as engaging in particular behaviors as a rule. If most people feel that they have a right to marry or to travel, those are rights assumed to exist by the people. That means that John and Mary can marry even though their particular marriage is not one that the people tend to approve of, by equal protection; that means that Fred can travel, even though someone has a problem with his doing so that results in a court case.
Finding a right to “streak” (other than as symbolic speech) in the Ninth or Fourteenth would be an example of the sort of “rights creation” we agree is improper – most Americans (excepting iampunha ;)) do not believe they have a right to go nude in public, save in particular specialized circumstances if they so choose. Finding a right to gay marriage based on the overall right to marry and the equal protection clause of the Fourteenth would not be – it would be extending the right to marry, already a part of our constitutional law, to two adult persons who have chosen to exercise that right in a way forbidden by statute law at present.
I’ve got to say, Poly, that you sound pretty damned patronizing here. Nowhere have I suggested that this isn’t how things work. Indeed, I’ve gone the extra mile by making clear that there is a certain measure of wiggle room in the constitution as judges must determine what various constitutional terms mean. So yeah, spare me the high school civics lecture. **
I’m not going to reargue this. I’ve made my case on the Ninth Amendment front in that other thread as well as in this one. **
I’m not sure about that last example, but I have absolutely no objection to the courts defining “cruel and unusual,” including proscribing certain methods of execution. I DO have a problem with them defining it as to ban the death penalty in whatever manner applied, because a contemporaneous amendment clearly countenances the practice. Again, I’ve covered this argument in more detail over in that other thread. **
See, here’s the problem: you blithely presume that judges are in a good position to know what “most people” feel they have the right to do. But that isn’t the case. At most, they know what “most people” at elitist cocktail parties feel they have a right to do. It reminds me of the story of the Manhattan socialite who was shocked when McGovern lost to Nixon because “she didn’t know anyone who voted for him.”
What you’re left with is just some judge’s gut feeling that “most people” agree that a given right ought to be enshrined into constitutional law. And hey, we wouldn’t accept that as a cite here on a damned internet message board – why on earth should it be considered a valid basis for judicial rulemaking?
The better answer is that what “most people” feel ought to be a right is best expressed via the ordinary political process, either through amendment or legislation.
Outside of Dred Scott – which was largely considered discredited the day it was handed down – substantive due process wasn’t part of the judicial scene until 1896 in the court’s decision in Allgeyer v. Louisiana, finding its ultimate expression in Lochner v. New York in 1905. Needless to say, this was well after the passage of the 14th amendment, so the suggestion that the framers were adopting that judicial construct is an odd one to say the least.**
Again, the power of the state to “kick in your door” is circumscribed by the fourth amendment. Why you continue to use that particular imagery is puzzling. **
What is or is not “unfair” is in the eye of the beholder. Several posters have suggested that a “right to smoke pot” would be a ridiculous assertion of due process rights. But why? If due process means metaphysical fairness, why isn’t that a valid argument?
I don’t understand what you are saying. And I’m not sure you are saying anything.
Morphine is a controlled substance but can be rescribed for medicall use, likewise codeine and others. If marijuana is useful for medical purposes why is it treated differently than those two controlled drugs? It is even virtually impossible to conduct experiments to find out what, if anything, it is that is of medical benefit in the drug.
As to the rights issue. I think that the idea that our rights come from the Constitution is an anachronistic hangover from the age when the lordly sovereign deigned to throw the subjects a few crumbs.
This is not a complicated point. A good and noble end (medical marijuana) does not justify nefarious means (judicial re-writing of the constitution). I’d agree that medical marijuana is a good thing, but that it should be made part of the legal landscape via ordinary political processes.
And even if you believe that rights do not come from the Constitution, there’s no getting around the fact that laws are declared “unconstitutional,” not “metaphysically wrong.” The judicial power is properly limited to the contents of that document.
Well, I’m sorry but it didn’t require a “judicial re-writing of the constitution” to get morphine, etc. in as approved medical procedures.
I’m beginning to think lawyers get too tangled up in process and forget substance.
Nice argument to authority. Too bad this is a general debate board and not a court. Your cite does not change the fact that the “truism” argument flies in the face of common sense. The language of the Ninth Amendment clearly implies that the authors thought there might be rights not yet enumerated in the Bill of Rights, and that should those rights be discovered, the Amendment ceded those rights to the people, not the government. The right to privacy, implied as it is by the Fourth Amendment and by the right to life, liberty and the pursuit of happiness, perfectly fills this bill. “States rights” arguments are just not logically sound in this instance.
No, you’re right, it didn’t: that change was made via ordinary political processes. As it should be.
I have no problem with legislation removing the ban on marijuana for medical use (heck, I have little objection to removing the ban on marijuana, period). I DO have a problem with the suggestion that the issue is of constitutional import, and that the judiciary can impose that change on their own.
I still don’t understand how you characterize the court’s actions which protect minority rights as a “power grab”. The courts were given the power to rule on constitutionality of laws at least in part to keep the majority from over-reaching and abusing their power. The courts were created and given that authority with the consent of the governed.
You position that every natural right needs to be explict would require a constant stream of amendments. Our Constitution works because it is broad enough that it can adapt to changes in society without the necessity of amendments every year.
I suspect that if there was some fundamental right of yours being violated, you would be less inclined to wait on the benevolence of the majority that has to date has shown itself to be not so benevolent.
But, you see, you feel that the judiciary has to change something to grant a previously non-existant right. I maintain that the government has to prove that a citizen doing something is hazardous to the general public welfare because the rights belong to “we the people” in the first place and are not granted by the sovereighn.
The indiscriminate use of drugs that alter behavior, like alcohol, is a legitimate concern to everyone. However, the medical by-prescription use of a drug to aid in alleviating symptoms of disease is not in that category, in my opinion.
Yes, but they were given that power only within the confines of the constitution. Put simply, there must be some textual constitutional basis for the judicial invalidation of laws; anything else is the usurpation of the power to craft government rightfully held by the people. Without a basis in the constitution upon which to issue a ruling, a court is just substituting their own policy choices for that of the people. **
It would not require a “broad stream of amendments;” as I’ve noted before, a broad right to privacy could be placed in the constitution with one sentence.
I’ve asked this question repeatedly, and no one has bothered to answer it: if you really believe that the constitution allows for the judiciary to invalidate laws on grounds not found within the constitution’s text, why have any of the amendments after the fourteenth been necessary? Why bother adding the nineteenth amendment when giving women the vote could just be judicially created via substantive due process? **
This isn’t an argument, it’s an appeal to emotion, and deserves all the respect accorded wholly emotional appeals – namely, none.
Just because you have cancer doesn’t make you an oncologist. Just because you are personally effected by a law doesn’t give your position vis-a-vis constitutionality any greater weight.
Besides, as I’ve pointed out, substantive due process has been used to reach results that I like as a matter of policy – the invalidation of minimum wage and maximum hour laws. But just because I like those things as a matter of policy does not excuse the judiciary imputing those policies into the constitution. Much as I dislike minimum wage laws, a state undoubtedly has the power to enact them, and that policy choice ought to be accorded respect.
That’s fine as far as it goes, and I thik it’s a perfectly legitimate guideline for legislators in crafting legislation. But the judiciary is not present to declare laws metaphysically unfair or unjust; they are present to declare laws unconstitutional. Absent a textual basis in the constitution for their rulings, they are taking away a power legitimately in the hands of the people – the power to self-govern. **
I’m not debating the policy merits of marijuana laws here – as I’ve said, I am extremely sympathetic to the cause of outright decriminalization, much less medical use. This has nothing to do with the particulars of that policy choice. It has everything to do with the people’s right to make that policy choice – even if that choice is a foolish one.
Save your patronizing snottiness for somebody who doesn’t know what he’s talking about, EC. Or better yet, another forum.[quore]The language of the Ninth Amendment clearly implies that the authors thought there might be rights not yet enumerated in the Bill of Rights,
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Quite so. I have never stated otherwise.
False. No language anywhere in the amendment says any such thing. You’re pulling it out of thin air.
And where the heck have I ever stated any such thing?
Actually, this deserves a bit of clarification that I didn’t feel like giving in the face of those opening lines:
My criticism is of the vague language “discovered,” which can mean anything and everything. The Ninth Amendment does not protect anything and everything; it protects “certain rights.” But here’s the clincher: It doesn’t tell you what those rights are or how they can be determined, nor does it give any person or institution the power to make such a determination.
This “discovered” thing is, w/r/t the Ninth Amendment, a crock, and a crock with no textual basis whatsoever.
Where Dewey and I differ is that “Equal Protection” and “Due Process” do have textual bases, and are so intentionally vague that they can only have been defined by the discretion of the courts. There is no equivalent in the Ninth Amendment; nothing says that enumeration “shall not be construed to deny or disparage other rights as defined by the courts.”
So basically, what you are saying is that the Ninth Amendment can’t ever have any legal effect, it’s just there to look pretty?
It has the legal effect of preventing courts from denying an asserted right on the basis that it is not explicitly enumerated elsewhere in the Constitution.
It says the rights listed in the Constitution are not necessarily exclusive.
It prevents the courts from deciding that rights granted under federal statute or state law are void because the Constitution does not recognize them.
But it says nothing whatsoever–zip, zilch, nada, less than zero–about how to determine the existence and scope of any other right, and it says even less than that about the Ninth Amendment being the source of any other rights.
It’s just not there.
My point was that a legal argument based on cites doesn’t win here – this isn’t a court of law, and most people reading and engaging in the debate are not lawyers. This is kinda what the Founders had in mind when they enumerated the right to free speech – ordinary folks standing around (virtually standing around, in this case) and discussing whether or not the laws of the land are fair and just. Court precedent does not constitute an automatic win in such discussions.
This isn’t to say that we should discount your legal expertise totally, frex, I haven’t challenged the cite itself, just its nature as a clencher, nor has anybody argued that the Court has historically put the Ninth Amendment to good use.
But we can and should take issue when we encounter legal interpretations of language that fly in the face of common sense. It seems to me that the language of the Ninth Amendment very clearly implies that unenumerated rights exist, and that if they do exist, they belong to the people, not the government. A right to privacy seems to fill that bill exactly. If the government wants to intrude on the right of people to privately conduct their business, they must show a compelling reason why, one that will stand up to rigorous examination. The people should not have to go to the tremendous effort of creating an amendment to the Constitution to protect such a right, the onus should be on the government to demonstrate why it’s so important that it be violated.
This is what I think protecting unenumerated rights is all about. You may think a right to privacy doesn’t exist, well, I think you’re completely wrong. It may not be spelled out in the Constitution, but it exists, and most Americans think it exists, and hence it should be PROTECTED.
You may differ in your reading of this law, but I think it’s a commonsense reading that is completely consistent with the language of the Ninth Amendment.
As for the name-calling. I started debating online on Usenet. I’ve heard it all. Didn’t impress me then, doesn’t impress me now.
So the law has nothing to do with an argument about what the law is? Feh.
I need some clarification, I think. Do those in the thread who think that the decision should go to the State of Texas think so because of the reasons set forth in Bowers v. Hardwick, or because the line of cases setting forth a right to privacy is flawed? I’m getting the impression it’s the latter. Hardwick didn’t overrule the privacy cases, of cuss, it just said privacy didn’t extend so far as to protect sodomy in light of the long standing prohibition against such behavior. Even the hard-liners on the Court are by and large unwilling to get rid of the right to privacy altogether.
If you do think there’s no right of privacy under the Constitution, do you advocate throwing out the line of cases establishing a right to marry and divorce, use contraceptives, have an abortion, read obscene material in the home, live with family members, make decisions concerning the care and custody of ones children, deciding whether or not to have a child, etc.? Would you support such a decision in a case upholding a law mandating, say, random castration of males and forced abortions for females by the state to control overpopulation? Govenment implanted tracking devices on all adults?