I am so glad to see that December subscribes to the Warren/Douglas/Brennan school of jurisprudence. Mr. Bork’s comment on why he considered the Ninth a nullity seems to approximate the stance of Justices Scalia and Kennedy, though I could be in error in ascribing this view to them, since I’m not as wellread on contemporary jurisprudence as I might be.
I think you’re wrong here, but I don’t have cites. Anyone with the interest and time to Google out the answer?
"There has been no Supreme Court explication of this Amendment, which was obviously one guarantee of the preference for the civilian over the military.
In fact, save for the curious case of Engblom v. Carrey, 677 F.2d 957 (2nd Cir. 1982), on remand 572 F.Supp. 44 (S.D.N.Y.), affd. per curiam 724 F.2d 28 (2nd Cir. 1983), there has been no judicial explicatin at all."
I recall Bork’s comment re the 9th Amendment during his confirmation hearings, but I have never understood just what he meant. Upon googling, I found this page which may explain his answer. As I understand it, for some people,
Ninth Amendment --> Right to Privacy --> Right to Privacy in sexual and reproductive matters.
Bork’s answer may have meant that he doesn’t agree with this interpretation of the right to privacy. (My first response meant that I thought judges could get to the same place even without the 9th Amendment.)
I was also interested in the discussion of how judges should identify the unenumerated Constitutional rights. A poster on that cite opines:
This idea looks logical, but I’ve never seen it before, so I’m guessing it doesn’t hold sway in legal circles.
If they’ll help clean, I’ll take em right now! Seriously, my only point is that there’s never been a case on it, save for one anomaly. I don’t know if that’s because the only thing keeping the 101st Airborne from sleeping on my couch is the pesky 3rd Amendment and they’re moving in the day it gets repealed. Maybe they would.
Another one: we’ve strayed so far from the text of the 11th Amendment over the years (originally designed to overturn Chisolm v. Georgia) that SCOTUS eventually said that sovereign immunity comes not from the 11th but is “inherent in the document itself”. It’s concievable that we could get rid of the 11th with no change to sovereign immunity law.
Well, Barb and I had rental property back when the Army base near our town expanded about 200-fold (from being a reserve training site to housing a full active-duty division), and we attempted to rent our property at slightly under fair market rates with the proviso that we would not rent to military families at that rate – the idea we had being that the low-income people were being forced out of housing (verifiable fact, according to local agencies) by landlords anxious to make higher rentals from military families. We were informed that, while the rental agencies thought we were kind people for wanting to do so, we could not do that under fair housing law. I thought about making it a Third Amendment case but decided against it. Too bad – I could have been a federal precedent!!
In my opinion the ammendment that “would do the least damage to the current way of life and which would be most bareable to lose”, is the 16th ammendment. I fully support that congressman in Texas that submits a bill to repeal it each session.