# Was Judge Roberts in the Federalist Society? Does it matter? **URL:** \ **Category:** Great Debates\ **Created:** [July 26, 2005, 3:48am UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170 "2005-07-26T03:48:18Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 3:09pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/41 "2005-07-27T15:09:56Z")
> [@DMC](#): > > That doesn’t answer my question. I asked if the opinion of legal scholars was fully in agreement with your statemetns, as you presented them, since you presented them in a factual manner. > > Does that “yes” stand alone, or are you going to retract that, given that my question wasn’t a conditional one. You certainly seem to want us to believe that no one believes in “inherent rights” (unless by “legal sources”, you meant to include “natural rights”), when we both know that there are plenty of people on both sides of this debate. > > I’ll be the first to agree that it’s difficult to enumerate exactly what those “natural rights” might be, but that doesn’t mean that no one thinks they exist. Again, find me a judicial opinion that actually construes the ninth amendment to be a source of substantive rights and you’re on to something. If you can’t find that – and you have over two hundred years of constitutional jurisprudence in which to look – then you’re simply wrong in asserting that it is such a source, at least in any meaningful, real-world sense. Hell, I’ll expand that to reputable constitutional scholars. To the best of my knowledge, even the giants of living constitutionalism like Tribe and Dworkin have never advocated the ninth as a source of rights. Asserting that the ninth amendment is a source of substantive rights is just amateur lawyering of the worst, most uneducated sort. (N.B.: I’m not arguing whether or not “natural rights” exist; I’m arguing that the ninth amendment is not a source of power for the judiciary to recognize such rights.) ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 3:14pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/42 "2005-07-27T15:14:40Z")
> [@spoke-](#): > > Find me a Federalist Society member who believes in any right not specifically listed in the Bill of Rights. I’m going to go way out on a limb and claim…all of them. I believe every member of the Federalist Society would agree that, say, the homestead protections provided in the Texas state constitution or the heightened free speech protections located in the New York state constitution are in fact rights fully available and enforceable to citizens of those states, even though they do not appear in the federal constitution. I believe every member would agree that the 1964 Civil Rights Act provides to US citizens the right to be free of racial discrimination in restaurants (even though some might quibble that the Act exceeds Congress’ commerce clause authority), even though that right is nowhere to be found in the US Constitution. In short, I believe your statement is bollocks. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 3:24pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/43 "2005-07-27T15:24:48Z")
> [@spoke-](#): > > And your comprehension of my position is completely absent. > > I did not say the 9th Amendment is a source of rights. It is instead **evidence that unenumerated rights exist**. > > The framers were not so foolish as to believe themselves capable of exhaustively listing every right the people retain. They implicitly left it within the power of the judiciary to determine unenumerated rights. I’m going to be charitable and say that your post, #30 in this thread, did not clearly express this sentiment. At any rate, so now you’re saying that the 9th amendment is not a source of rights, but that those rights exist anyhow, and the 9th merely evidences their existence? That the 9th amendment does not provide an enforcement mechanism for those rights? Well, I tend to agree, at least with the latter part. Question for the class, though: if a right cannot be enforced, does that right really exist in any meaningful way? Or are they another invisible pink unicorn? ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 3:33pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/44 "2005-07-27T15:33:56Z")
> [@Dewey Cheatem Undhow](#): > > I’m going to be charitable and say that your post, #30 in this thread, did not clearly express this sentiment. And I will be charitable and say that maybe you didn’t read it too carefully. > [@](#): > > At any rate, so now you’re saying that the 9th amendment is not a source of rights, but that those rights exist anyhow, and the 9th merely evidences their existence? Correct. > [@](#): > > That the 9th amendment does not provide an enforcement mechanism for those rights? _In_correct. The 9th Amendment by necessary implication gives the Supreme Court the power to recognize _and enforce_ unenumerated rights. In my view, the Supreme Court has been too cautious in exercising this power. > [@](#): > > Question for the class, though: if a right cannot be enforced, does that right really exist in any meaningful way? Or are they another invisible pink unicorn? See my previous remark. The right of privacy, for example, is fully enforceable through the implicit enforcement mechanism of the 9th Amendment. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 3:41pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/45 "2005-07-27T15:41:30Z")
> [@spoke-](#): > > See my previous remark. The right of privacy, for example, is fully enforceable through the implicit enforcement mechanism of the 9th Amendment. Even assuming _arguendo_ that the “right to privacy” isn’t built on incredibly shoddy reasoning, it doesn’t flow from the ninth exclusively, and indeed the ninth is hardly necessary to find it. The full enumeration of amendments “emanating” that particular “penumbra” is the first, third, fourth, fifth and ninth amendments. The ninth is by far and away the least important item in that list. And again, the privacy cases are the only example in over two hundred years of jurisprudence of the ninth being interpreted as adding anything of substance to the Bill of Rights, and even there it requires the support of a gaggle of its sister amendments. The notion that the ninth amendment gives the federal judiciary _carte blanche_ to recognize “unenumerated rights” is wholly without historical support. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 3:56pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/46 "2005-07-27T15:56:13Z")
> [@Dewey Cheatem Undhow](#): > > Even assuming _arguendo_ that the “right to privacy” isn’t built on incredibly shoddy reasoning, it doesn’t flow from the ninth exclusively, and indeed the ninth is hardly necessary to find it. The full enumeration of amendments “emanating” that particular “penumbra” is the first, third, fourth, fifth and ninth amendments. The ninth is by far and away the least important item in that list. My, but you dance well. The 9th Amendment doesn’t create the right to privacy, but it gives the Court **authority to enforce it**. [/quote] And again, the privacy cases are the only example in over two hundred years of jurisprudence of the ninth being interpreted as adding anything of substance to the Bill of Rights, and even there it requires the support of a gaggle of its sister amendments. [/quote] Malarkey on two counts. I thought we’d agreed that even in the “right to privacy” cases, the 9th doesn’t create the right. What the 9th does is give the court the authority to protect a right not specifically enumerated. And you are simply wrong if you are implying that the right to privacy is the only such unenumerated right the Court has recognized. Others include the right of association, the right to be presumed innocent, the right to be judged by a standard of guilt beyond a reasonable doubt in a criminal trial, and the right to travel. [Cite.](http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=448&invol=555#579) All of those “unenumerated rights” rely either explicitly or implicitly on the Court’s power through the 9th Amendment to enforce them. > [@](#): > > The notion that the ninth amendment gives the federal judiciary _carte blanche_ to recognize “unenumerated rights” is wholly without historical support. See above. And see the earlier quote from Mr. Madison. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 4:21pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/47 "2005-07-27T16:21:22Z")
Oh yeah, and let me shovel away this load of crap, too: > [@Dewey Cheatem Undhow](#): > > I believe every member [of the Federalist Society] would agree that the 1964 Civil Rights Act provides to US citizens the right to be free of racial discrimination in restaurants (even though some might quibble that the Act exceeds Congress’ commerce clause authority), even though that right is nowhere to be found in the US Constitution. (Wait, wait, let me stop laughing first.) Do you really know _any_ Federalist Society members who think the 1964 Civil Rights Act creates any rights? All of the Federalist Society members I know would argue that the federal government cannot create a right (or as you put it “provide” a right). Moreover, they would point to the 1964 Civil Rights Act as an egregious overextension of federal power, and would argue that the Supreme Court erred in recognizing the power of Congress to enforce the act under the interstate commerce clause. Federalist Society members _loathe_ the 1964 Civil Rights Act and the jurisprudence that flowed from it. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 27, 2005, 4:28pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/48 "2005-07-27T16:28:25Z")
> [@spoke-](#): > > Federalist Society members _loathe_ the 1964 Civil Rights Act and the jurisprudence that flowed from it. !!! Do you have a cite? And, if so, what does that imply about Roberts’ judicial philosophy? ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 5:06pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/49 "2005-07-27T17:06:36Z")
> [@BrainGlutton](#): > > !!! Do you have a cite? Just my experience with them. They would not be so politically stupid as to publicly denounce the Civil Rights Act. Instead, they adopt states’ rights language and denounce the expansion of federal power at the expense of the states. From their [website](http://www.fed-soc.org/ourpurpose.htm): > [@](#): > > Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. Implicitly, members of the Federalist Society would prefer _de_centralized government. In other words, they are arguing for states’ rights. Among states’ rights advocates, the jurisprudence flowing from the 1964 Civil Rights Act is regarded as the “foot in the door” for the federal government. The Act was premised upon the federal government’s power to regulate interstate commerce. The Supreme Court upheld this exercise of federal power in [Heart of Atlanta Motel, Inc. v. United States](http://www.tourolaw.edu/patch/Heart/). Federalist Society members would argue that this was an overextension of the power granted the federal government under the commerce clause. Put it this way: If the Supreme Court in 1964 had comprised time-traveling members of the Federalist Society, the Civil Rights Act of 1964 would have been ruled unconstitutional. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 6:14pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/50 "2005-07-27T18:14:00Z")
Sorry, missed this part: > [@BrainGlutton](#): > > [W]hat does that imply about Roberts’ judicial philosophy? Nothing we didn’t already know or suspect. Roberts may be expected to be unfriendly to federal exercises of power. He may be expected to be unfriendly to unenumerated rights in general and the right to privacy in particular. Shouldn’t keep him from being confirmed, though. Bush won the election. Any voter who bothered to inform himself in 2004 knew that Bush intended to appoint justices with this philosophical view. A vote for Bush was a vote for a Supreme Court that would take a restrictive view of “rights” and of federal power vs. the states. If Americans didn’t want that, they shouldn’t have voted for Bush. Maybe a few Supreme Court decisions with a Federalist Society slant will open some voters’ eyes. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 6:31pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/51 "2005-07-27T18:31:41Z")
> [@spoke-](#): > > My, but you dance well. The 9th Amendment doesn’t create the right to privacy, but it gives the Court **authority to enforce it**. _sigh_ OK, so you agree that the other amendments join together, Voltron-like, to create the right to privacy. So why do you need an amendment to allow enforcement? If the right exists as a matter of constitutional law, you don’t further need an additional provision to allow the court to enforce it. The court can prevent free speech infringements simply by virtue of the first amendment existing; it doesn’t need another bit of text saying “and the court can enforce this.” > [@spoke-](#): > > Malarkey on two counts. I thought we’d agreed that even in the “right to privacy” cases, the 9th doesn’t create the right. What the 9th does is give the court the authority to protect a right not specifically enumerated. Care to explain the difference in that distinction? Because I sure as hell can’t see it. Indeed, it’s awfully hard to say you have a “right” to anything without a corresponding remedy. If a right exists in the constitution, the court automatically has the right to enforce by dint of its Article III authority – see, e.g., _Marbury v. Madison_. The ninth amendment has nothing to do with enforcement power. If the right to privacy is located elsewhere in the constitution, then the ninth is not needed to enforce it. > [@spoke-](#): > > And you are simply wrong if you are implying that the right to privacy is the only such unenumerated right the Court has recognized. Others include the right of association, the right to be presumed innocent, the right to be judged by a standard of guilt beyond a reasonable doubt in a criminal trial, and the right to travel. [Cite.](http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=448&invol=555#579) All of those “unenumerated rights” rely either explicitly or implicitly on the Court’s power through the 9th Amendment to enforce them. Wrong. Look at the cases that establish those rights. Tell me if the court in any way relies on the 9th amendment in enforcing them. Incidentally, the rights you list are found in the following ways: 1. Association – first amendment, a function of the right to assemble and the right to speech. 2. Presumption of innnocence – a function of fifth and fourteenth amendment (procedural) due process. 3. Standard of guilt – see #2. 4. Right to travel – fourteenth amendment (substantive) due process. Indeed, if you’re going to claim a _carte blanche_ power for the court to recognize whatever unenumerated rights it deems important, you’re much better off relying on substantive due process rather than the ninth amendment. I have issues with the SDP approach, of course, but at least there you have some meaningful judicial authority upon which to rest your thesis. > [@spoke-](#): > > See above. And see the earlier quote from Mr. Madison. Mr. Madison’s quotation does not contradict my position in the slightest. Please see my initial post in this thread. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 6:40pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/52 "2005-07-27T18:40:05Z")
> [@spoke-](#): > > Do you really know _any_ Federalist Society members who think the 1964 Civil Rights Act creates any rights? Well, yes. That’s a purely factual inquiry. There are Federalist Society types who might question whether the 1964 Act was a proper exercise of commerce clause authority (something I noted in my earlier post, BTW), but none of them would suggest it doesn’t create a right. How can you say it doesn’t? Prior to its passage, one could refuse to seat blacks, assuming no state law to the contrary; after its passage, one could not. What is that, if not the creation of a right that did not previously exist? > [@spoke-](#): > > All of the Federalist Society members I know would argue that the federal government cannot create a right (or as you put it “provide” a right). I’m really not sure where you get that notion from. Federalists might oppose the creation of rights from whole cloth by the judiciary; that does not mean that they fail to recognize the creation of rights by the government. > [@spoke-](#): > > Moreover, they would point to the 1964 Civil Rights Act as an egregious overextension of federal power, and would argue that the Supreme Court erred in recognizing the power of Congress to enforce the act under the interstate commerce clause. Of course they would. Again, I pointed that out in my previous post. But stating that the 1964 Act was a bad policy or saying that it exceeded Congressional authority is not the same as saying it doesn’t create a right. > [@spoke-](#): > > Federalist Society members _loathe_ the 1964 Civil Rights Act and the jurisprudence that flowed from it. “Loathe” is a bit strong – most recognize its goals as laudable, but see very real federalism problems with it (along with most other noneconomic legislation based on the commerce clause). ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [July 27, 2005, 6:43pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/53 "2005-07-27T18:43:56Z")
> [@Dewey Cheatem Undhow](#): > > _sigh_ OK, so you agree that the other amendments join together, Voltron-like, to create the right to privacy. So why do you need an amendment to allow enforcement? If the right exists as a matter of constitutional law, you don’t further need an additional provision to allow the court to enforce it. The court can prevent free speech infringements simply by virtue of the first amendment existing; it doesn’t need another bit of text saying “and the court can enforce this.”. To put it blunty we wouldn’t need such an amendment if people like you weren’t working tirelessly to see existing right to privacy decisions overturned. But since people like you, and Bricker, and Bush, and Scalia, and Thomas, and probably Judge Roberts are around we need a right to privacy explictly written into the text of the constitution so it won’t be messed with. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 6:52pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/54 "2005-07-27T18:52:28Z")
> [@Blalron](#): > > To put it blunty we wouldn’t need such an amendment if people like you weren’t working tirelessly to see existing right to privacy decisions overturned. But since people like you, and Bricker, and Bush, and Scalia, and Thomas, and probably Judge Roberts are around we need a right to privacy explictly written into the text of the constitution so it won’t be messed with. Of course, neither I, nor (presumably) Bricker, Scalia, Thomas or Roberts\* would have any problem with a right to privacy if it was “explicilty written into the text of the constitution.” Indeed, as it exists today, it is the very absence of a clear textual basis for such a right that raises our hackles – it represents, in a very real way, an amendment to the constitution without going through the ordinary amendment process. And thus, it violates our notion of government by the consent of the governed. You get 2/3 of Congress and 3/4 of the states to agree to stick a right to privacy in there, and I’ll happly sound the horn for its vigorous enforcement – as I do for other explicit constitutional rights, from free speech right on down the line. \*I’m not hazarding a guess on what Bush thinks. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 7:04pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/55 "2005-07-27T19:04:16Z")
> [@Dewey Cheatem Undhow](#): > > _sigh_ OK, so you agree that the other amendments join together, Voltron-like, to create the right to privacy. No, I don’t agree. I agree that’s the way the right to privacy was articulated by the Court. But I believe the Court was too cautious, and that the right to privacy ought to be considered to exist whether or not it may be moored to one of the rights listed in the Bill of Rights. But hey, I’m not on the Supreme Court. > [@](#): > > So why do you need an amendment to allow enforcement? To foreclose the argument that because a right is not explicitly spelled out in the Constitution it doesn’t exist. > [@](#): > > If the right exists as a matter of constitutional law, you don’t further need an additional provision to allow the court to enforce it. But without the 9th Amendment, strict constructionists would be able to argue that unless a right is spelled out in the Constitution it doesn’t exist. The 9th Amendment enables enforcement of rights not explicitly enumerated in the Constitution. > [@](#): > > If a right exists in the constitution, the court automatically has the right to enforce by dint of its Article III authority – see, e.g., _Marbury v. Madison_. The ninth amendment has nothing to do with enforcement power. If the right to privacy is located elsewhere in the constitution, then the ninth is not needed to enforce it. Were not talking about rights “located elsewhere in the constitution.” We’re talking about rights not mentioned at all in the constitution, but only discernable by means of the “penumbras” you were deriding earlier. Without the 9th Amendment, strict constructionists could successfully argue that unless a right is explicitly delineated in the Bill of Rights it doesn’t exist. The 9th Amendment (to repeat myself) enables enforcement of unenumerated rights. > [@](#): > > Wrong. Look at the cases that establish those rights. Tell me if the court in any way relies on the 9th amendment in enforcing them. > > Incidentally, the rights you list are found in the following ways: > > 1. Association – first amendment, a function of the right to assemble and the right to speech. > 2. Presumption of innnocence – a function of fifth and fourteenth amendment (procedural) due process. > 3. Standard of guilt – see #2. > 4. Right to travel – fourteenth amendment (substantive) due process. And there are those “penumbras” you were deriding earlier. None of those rights is explicitly listed in the Constitution. They are all unenumerated rights found by implication, not by express language. As such, the 9th Amendment is implicated in the recognition of those rights, whether or not the Court so stated. Example: Here’s Chief Justice Burger ruling on the right of the public to attend trials (a right not explicitly mentioned in the Constitution); > [@](#): > > The State argues that the Constitution nowhere spells out a guarantee for the right of the public to attend trials, and that accordingly no such right is protected. The possibility that such a contention could be made did not escape the notice of the Constitution’s draftsmen; they were concerned that some important rights might be thought disparaged because not specifically guaranteed. It was even argued that because of this danger no Bill of Rights should be adopted. See, e. g., The Federalist No. 84 (A. Hamilton). In a letter to Thomas Jefferson in October 1788, James Madison explained why he, although “in favor of a bill of rights,” had “not viewed it in an important light” up to that time: “I conceive that in a certain degree . . . the rights in question are reserved by the manner in which the federal powers are granted.” He went on to state that “there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude.” 5 Writings of James Madison 271 (G. Hunt ed. 1904). 15 > > But arguments such as the State makes have not precluded recognition of important rights not enumerated. Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable [448 U.S. 555, 580] doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. 16 The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined. > > We hold that the right to attend criminal trials 17 is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and “of the press could be eviscerated.” Branzburg, 408 U.S., at 681 . [Richmond Newspapers, Inc. v. Virginia](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=448&invol=555), 448 U.S. 555 (1980). Now, Justice Burger does not explicitly mention the 9th Amendment here. But he does allude to it, when he notes that “[the Framers] were concerned that some important rights might be thought disparaged because not specifically guaranteed.” Justice Burger is implicitly invoking the power of the Court under the 9th Amendment to acknowledge and enforce an unenumerated right. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 7:10pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/56 "2005-07-27T19:10:07Z")
Regarding the Civil Rights Act of 1964, **Dewey** , let me put it to you as plainly as this: A Supreme Court comprised of Federalist Society members and unbound by precedent would have struck down the Civil Rights Act of 1964 as unconstitutional. Do you disagree with that statement? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 7:29pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/57 "2005-07-27T19:29:53Z")
> [@spoke-](#): > > No, I don’t agree. I agree that’s the way the right to privacy was articulated by the Court. But I believe the Court was too cautious, and that the right to privacy ought to be considered to exist whether or not it may be moored to one of the rights listed in the Bill of Rights. But hey, I’m not on the Supreme Court. No, you aren’t. Can I at least get you to admit that the theory you are espousing is novel, and lacks any kind of serious support in either constitutional jurisprudence or from constitutional scholars? > [@spoke-](#): > > And there are those “penumbras” you were deriding earlier. None of those rights is explicitly listed in the Constitution. They are all unenumerated rights found by implication, not by express language. As such, the 9th Amendment is implicated in the recognition of those rights, whether or not the Court so stated. 1. Those are not “penumbral” decisions. They are ordinary interpretations of actual, existing text. They can each be tied to a specific constitutional provision (although I, of course, disagree with the use of SDP on the right to travel example) 2. The fact that the court did not “so state” is central. In over two hundred years of jurisprudential history, you’d think the court might have managed to mention if the decisions you allude to had anything to do with the ninth amendment. > [@spoke-](#): > > Now, Justice Burger does not explicitly mention the 9th Amendment here. But he does allude to it, when he notes that “[the Framers] were concerned that some important rights might be thought disparaged because not specifically guaranteed.” Justice Burger is implicitly invoking the power of the Court under the 9th Amendment to acknowledge and enforce an unenumerated right. This case simply interprets the scope of the press and association clauses of the first amendment. It ain’t penumbral, unless you’re prepared to say that every decision that decides how far a given bit of text reaches is penumbral. Certainly, no serious strict constructionist would go so far. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 7:32pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/58 "2005-07-27T19:32:09Z")
> [@spoke-](#): > > Regarding the Civil Rights Act of 1964, **Dewey** , let me put it to you as plainly as this: > > A Supreme Court comprised of Federalist Society members and unbound by precedent would have struck down the Civil Rights Act of 1964 as unconstitutional. > > Do you disagree with that statement? No, I do not. Indeed, I have pointed out at least three times now that Federalist Society members take issue with that use of the commerce power. Now, perhaps you’d care to explain why that fact has fuck-all to do with the initial point I rased with respect to the Federalist Society and the '64 Act? ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 7:44pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/59 "2005-07-27T19:44:49Z")
> [@Dewey Cheatem Undhow](#): > > No, I do not. Indeed, I have pointed out at least three times now that Federalist Society members take issue with that use of the commerce power. Good of you to admit that a Federalist Society Court would have struck down the Act. And in so doing they would have left the South segregated indefinitely. Gosh, what a great victory over “judicial activism” that would have been. > [@](#): > > Now, perhaps you’d care to explain why that fact has fuck-all to do with the initial point I rased with respect to the Federalist Society and the '64 Act? Under a Federalist Society Court, the Civil Rights Act would have been a nullity, creating no rights whatsoever. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [July 27, 2005, 7:47pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/60 "2005-07-27T19:47:53Z")
> [@Dewey Cheatem Undhow](#): > > Indeed, as it exists today, it is the very absence of a clear textual basis for such a right that raises our hackles – it represents, in a very real way, an amendment to the constitution without going through the ordinary amendment process. And thus, it violates our notion of government by the consent of the governed. I’m baffled that you put such faith in unchecked democracy. What do you think of the _Kelo_ decision? [Previous page](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170.md?page=2) [Next page](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170.md?page=4)