Actually, I take it back. That is NOT exactly my point. The 9th says zilch about other “constitutional” rights. It speaks merely of “other” rights “retained by the people.” If it ain’t grounded in the Constitution, it ain’t a constitutional right–but it might well be an “other” right nonetheless, derived from some other body of law.
In fact, if anything, the text of the 9th Amendment specifically disclaims that it is the source of any substantive right. After all, it recognizes “other” rights “retained by the people.” “Retained,” as in, rights they already have from something other than the Constitution.
Actually, according to this article, they would have said, “what, you’re supposed to just cross your legs and hold it?”
Ann Coulter in an episode of Real Time with Bill Maher said the same thing as “Justice” Thomas: that there was no mention of privacy in the Constitution, so tough nuts to all you deviants. Which is complete BS once you’ve read the 9th Amendment.
The so-called “right to privacy” is grounded in the 14th Amendment, not the 9th.
There’s something about the 9th and 10th–which are supposed to be the subjects of our attention here–that drive people to distraction. And I don’t mean the city of Distraction, Texas; I mean the condition where honest, earnest people like Minty Green blank-out the relevant words of the very article they’re referencing. “…the 10th merely states that what is not granted to Congress is retained by the states,” hmmm? Aren’t there maybe a few more words there that are at the very core of these controversies?
Or do you maintain that the question of what powers are retained by “the people” has no relevance to “the constitutionality of the gradual expansions of federal power”?
If some future SCOTUS were to hold that growing and harvesting such plantlife as one pleases in one’s own garden is one of the unenumerated powers reserved to the people, wouldn’t that be rather relevant? Or if that’s not commerce-y enough in flavor, it’s surely not hard to think of some other (putative) reserved power that is.
It’s not that I fail to grasp that the fairly obvious interpretation of these amendments, and the enforcement of that interpretation by the courts, have serious implications for what sort of republic we are to have. What I don’t understand is why the alternate interpretation is given the unearned dignity of being termed “strict constructionism,” when in fact it is not founded upon any plain construal of the actual words of the text (indeed, the plain meanings are tossed aside), but rather upon certain doctrines that have little to do with the strictness of construction–but rather with such premisses as “unenumerated rights, ie such rights as are not individually specified in the Constitutional text, raise no issues actionable by the courts.” In what sense is it a “right” at all (and not a privilege) if the courts have no authority to prevent its disparagement by Congress or the Executive (or the States)?
If the real debate is over legislative supremacy versus the coequality of the three branches of government, why not openly frame it in those terms?
Shorthand, brevity, abbreviation, not wanting to put too many darn words in the sentence. I’m perfectly aware that “or the people” is in the text, and in fact I have complained on these very boards that states-rights conservatives never seem to remember those three little words when relying on the 10th Amendment to claim that some state can do whatever the heck it wants. Cite available upon request if you really want to make the hamsters scream.
And speaking of “blank[ing]-out the relevant words of the very article” you’re talking about, are YOU going to bother to show me where the 9th and 10th say thay they are the SOURCE of any specific rights or powers, as opposed to merely recognizing that certain other, undefined rights and powers exist?
The Supreme Court has never held that anything is “one of the unenumerated powers reserved to the people.” In light of this, what’s your point? That wildly improbable things can be hypothesized?
I honestly have no idea what you’re getting at here. I am not a strict constructionist in any sense of the term, nor do I have any problem with discussing the division of powers among the branches of government, and I just can’t figure out the rest of what you’re getting at here. Could you restate it for me?
MINTY:
Only the first three paragraphs of my previous post were in reference to you. I should have made that clear.
“…are YOU going to bother to show me where the 9th and 10th say thay they are the SOURCE of any specific rights or powers, as opposed to merely recognizing that certain other, undefined rights and powers exist…”
You’re making a distinction between “being a source” and “merely recognizing” that I don’t understand. As far as I’m concerned, for the Constitution to even “merely recognize” that certain rights exist, is to give the Federal courts ample authority to protect them. In both cases the Constitution is textually expressing cognizance of rights: some of them are specifically enumerated, many of them are not. But from either set we have the possibility of issues “arising under the Constitution,” and SCOTUS has the power to rule upon them.
[As a footnote: under my approach to “natural rights doctrine,” NO statute, law, or Constitutional provision is a “source of rights.” ALL they can do is recognize them, or ignore them.]
“…The Supreme Court has never held that anything is “one of the unenumerated powers reserved to the people.” In light of this, what’s your point? That wildly improbable things can be hypothesized?..”
No. I was anticipating the possibility that you would deny that the issue of SCOTUS recognizing certain powers reserved to the people (not the States) had any relevance to a class on the expansion of Federal power. I thought that was your reason for refraining from acknowledging those “three little words” in your
mention of the 10th. (I am denying your premiss that the 10th does no more than acknowledge certain powers reserved to the State government.)
As to your last comments, I understand that you don’t get what I’m getting at, but don’t know how to make it any clearer than by saying again: I maintain that the mention of “the people” in the 9th and 10th provides an amply sufficient textual basis for SCOTUS to overturn Federal and State acts that they judge to impair the unenumerated rights of residents of the US.