Denying and Disparaging the 9th
By Neil Stevens Comments (82) / Email this page » / Leave a comment »
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Our Constitution has accumulated many amendments over the years. Some are beloved by all (like the 1st), some are beloved by some and hated by others (like the 2nd), and some are just followed without any controversy (like the 3rd).
One amendment has been shoved under the bus by all though. That one is the 9th, and I wish it weren't so, but it doesn't get enough respect.
I understand why the left denies and disparages the 9th amendment. That's easy: they see 'rights' as alternately tools to be used by judges to achieve policy goals that cannot be won with elections, or as responsibilities of the government as a representative of classes of people collectively. That is about the only meaning the word can have with them, after all. Alien to them is the concept of an absolute natural order or, Sagan forbid, a deity-given order of how things are and should be.
So for them, such a broad amendment stating facts about the world, steeped in a concept of humanity that is contraindicated by their worldview, is nothing more than an "inkblot." It's easy for them to declare that, too. When you have a "living Constitution," some parts grow beyond their text (1st, 14th) while others shrink (2nd, 9th, 10th, Article 1,...).
The right's opposition to the amendment is harder to understand logically, though. We're the steady opponents of judicial activism, determined champions of an enduring Constitution, and last supporters of textualism in Constitutional interpretation. Why, then, do some of us hop onto the bandwagon and declare the 9th to be "meaningless?"
Unfortunately I think the reason is emotional. We've been hit over the head so many times by an activist Judiciary finding excuses to use their self-proclaimed supremacy over the Legislature and the Executive, that we've forgotten that our view of rights is not the same as theirs. We see "rights" in a Constitutional law context and cringe just on reflex.
What we should be doing instead is upholding the 9th along with the rest, but with the constantly-needed reminder that rights and the role of the Judiciary do not change with the makeup of the Supreme Court. We ought not shy away from our otherwise-principled respect for the document as it is written, just because we fear runaway judges perverting it into a blank check for activism.
Judges can make us politically miserable with or without the 9th amendment. Does anyone actually think that the absence of the 9th would have made the Roe court go the other way? I don't. So let's not fall into the trap. The 9th amendment should be as cherished by proponents of a family and community-centered society, as opposed to a government-centered one, as much as proponents of limited government embrace the 10th amendment.
Of course it's not up to the courts to decide what goes where. But I believe that the principle enshrined in the 9th MUST be respected by every Constitutional officer who promises to uphold the Constitution.
That's where its value ought to be.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
The 9th amendment establishes Rights not as indulgences that can be granted or taken away by the government, but as prerogatives held by the people. Any President, any member of Congress, and any Supreme Court Justice who acts according to any other view of rights, is betraying his oath or affirmation.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
If the town of Podunk passes a law against spitting on the sidewalk, has it violated somebodies 9th Amdt rights? Is spitting an indulgence with the government may take away, or a right which it may not take away? And who decides?
Trying to apply modern-day legalistic thought processes to the 9th amendment isn't going to work, and thats what it sounds like you're trying to do.
Lawyers by and large accept without question judical supremacy and other lefty principles, thanks in no small part to the leftist bias of academia. Not having been able to stomach all that jazz, I never subjected myself to lawyerly training, and so I still reject it.
So the idea that part of the Constitution has no meaning if there's no judge to enforce it, just doesn't fly with me.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
Why can't you answer the question? It's very much to the point. You are saying that all governent officials should be mindful of the 9th, presumably including the judges.
So you are a judge and you have a case where someone says that a law passed by the legislature violated his 9th Amt rights. What do you do and how do you decide? This is THE question, Niel, not some distraction.
What are the exact facts of the case?
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
If it please the Court, on the 22nd August I was arrested by the police force of Podunk for spitting on the town sidewalk, under the local ordinance called "Podunk Clean Sidewalk Act of 2002".
My contention is that this law violates my natural law right to spit where I choose. I call the Courts attention to the 9th Amt to the US Constitution, which holds that;
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Your Honor, I ask you to hold the PCSA as unconstitutional under the 9th Amt, and to award me one hundred bajillion dollars as compensation for my mental angish.
I am not competent to determine whether you have or have not that right, but it is irrelevant. Even if you do have that right, the ninth amendment does not give me the authority to override the City Council of Podunk, and the sovereign State laws is operates under.
Pay the fine and learn some manners.
(This goes back to our fundamental disagreement you cited below. The idea that a Court would have to FIND the authority to overturn a law, rather than just ASSUME it, is so far out of the activist judicial mainstream, that you won't see judges say it much)
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
But if you chose not to decide, you still have made a choice!
I like your answer, which is the one which the SC has always held. But it does basically mean that the 9th is a nullity, as some have called it.
Your test case doesn't invoke the 9th in my view, only because your case is typical of the leftist interpretations of rights and the role of the Judiciary that permeate our legal system today.
But it's no nullity just because the ACLU can't use it that way.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
If someone who is a big 9th amendment booster could give us a concrete example of how it should be used in real life. Otherwise it is just pointless platitudes.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
Anytime the government acts with power not given it in the constitution i.e. a form of taxation not authorized by the constitution it can be evoked.
A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever. -John Adams
Evoked how, by a judge deciding that something is outside the government's power and overturning a law passed by Congress?
As much as I hate taxes, the Murphy decision in the DC circuit doesn't exactly make me feel all warm and fuzzy. There we have unelected judges throwing out a law passed by the people's representatives in Congress, for reasons not enumerated in the Constitution. I can't say I care for that, even if it means throwing out a tax law. That is simply handing judges a blank check to do whatever they want and elevating the judiciary far above any other branch.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
I suppose what I mean by evoked is that it gives the Judge power to limit government to the power specifically given it in the constitution. That, my good friend, is not activism it is strict interpretation of the constitution. This of course could be done with out the amendment but it’s funnier to site it.
The constitution allows the congress to wrest that power back by the use of amendments and removal of judges. Of course who has the eggs for that now days?
A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever. -John Adams
Judges ARE government. And unlike the other branches its almost impossible to reverse the laws they make.
It is the responsibility of judges to revoke the passing of laws that the constitution does not grant power for. If congress wants more power then given them they need an amendment. If you don't like the constitution change it but don't ignore it.
does not grant power for the town I live in to have zoning laws. Therefore, according to you, the courts should strike down those zoning laws. In fact, 99.99% of the laws in the country should go.
It does in the 10th.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
It is easier for a town to justify having power to make zoning laws then it is for the Federal goverment to assume the right(power).
The Ninth Amendment is the amendment that enshrines the doctrine of "inalienable rights endowed by our Creator" of the Declaration of Independence in the Constitution. The amendment precludes any claim by government that simply because the constitution does not enumerate a right of the people does not mean it does not exist.
The 10th Amendment explains the practical fact that issues over rights are determined in the states. The founders saw the main right of the people to be the right to govern themselves in a republican form of government, as opposed to by a King.
Does that help?
Amendment IX - Construction of Constitution. Ratified 12/15/1791.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X - Powers of the States and People. Ratified 12/15/1791. Note
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
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the analytical process. Rights ARE, and do not have to be articulated. Restrictions on rights must be articulated; that's what statutes, ordinances, regulations, and, yes, the Constitution do.
To use your example; absent law, Joe Sixpack has a right to spit on the sidewalk because he can. If through the consent of the governed in republican processes, the citizens determine that Joe's spitting should be curtailed, they can do so. Joe's defense against the charge of unlawful spitting is to find a Constitutional protection for his right to spit on the sidewalk. Since I don't know of one, Joe's "Constitutional Rights" are protected by the requirement that there be a specific charge, a warrant, and a trial at which he is presumed innocent.
In Vino Veritas
That's one thing I have found so exciting about the practice of law. I was trial lawyer for 14 years in criminal defense and medical malpracice and thought when I went into corporate law for sanity that I would not find it as exciting. But I was wrong. Government, and esp bureaucrats, like to make law that statutes dont authorize, and I find myself still in the battle for rights!
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or at least have their staff and lawyers write them. 'Crats love to write regs. As a longtime 'crat, let me write the regs, and I'll rule the world; at least until you can find a court to say I exceeded my authority, and they do give us "experts" so much deference you know.
In Vino Veritas
Or we wouldn't have a Bill of Rights at all. If it can't be articulated, it can't be protected, either. Rights not in the BOR can be modified, restricted, or eliminated by the will of the people (Congress).
It seems to me it is completely pointless to harp on the 9th Amendment in this day and age, where the concept of being able to do things not forbidden by law is hardly a foreign concept. It also seems to me this concept is largely made redundant by other protections that are enumerated in the Constitution.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution
-Madison
This was said as the 9th was proposed.
The history of the amendment makes it more of a historical footnote than an actually important part of the Constitution we should spend a lot of time pondering. There are not very many places in the the world where the individual doesn't retain any rights except for what is explicitly granted. That even goes for places like China. If you are arrested in China, it will be for the commission of some defined crime, not for the commission of a non-crime. It's just a common sense way for a government to operate, whether it is a totalitarian dictatorship or a democratic republic.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
but "those rights which were not singled out" have been assigned into the hands of the General Government. In whose hands they seem to be no more and no less secure than those rights which the Supreme Court is watching over.
We're discussing the meaning of the 9th Amt, and whether it means that everything is a protected "right" or not. Meaning that no statute or ordinance may interfere with it.
Joe Sixpack has a right to spit on the sidewalk because he can.
Sure. The question is whether that right is one that government may infringe on, or not.
"If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."
- United Public Workers v. Mitchell (1947)
Government only has the right to restrict what it has been given power over specifically in the constitution.
A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever. -John Adams
I don't think anyone including the authors of the constitution would consider spitting, defecating or any such non-sense on public property a "right". Where this comes into play is when an unanswered question not addressed by the constitution in regards to rights is in the balance.
Does government hold all rights or do citizens hold rights not specifically given it. That is the question.
I.e. Who gets to decide what my child is taught about the death of dinosaurs? Do I have the right to tell them Martians killed them or can government forbid me from teaching them non-sense?
Do I have the right to decide who will provide my telephone service or do I have to accept the assigned company?
The question is when a right is in question and not clearly addressed by the constitution then the right (power) falls to citizens.
A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever. -John Adams
At the end of the day, this comes down to an argument about "Who decides?". The expansive interpretation of the Ninth means that the judges decide, while the narrow meaning says that "the people" decide via the legislative process. Therefore I thinks its clear that the "conservative" position is the narrow interpretation, since conservatives are reluctant to hand the Court any further blank checks.
This is what it is all about. If the people (through Congress) make the determination of what these unenumerated rights might consist of, then where's the problem that needs an amendment? What does the 9th give us that we wouldn't have without it?
On the other hand, if Judges are calling the shots here, what is to prevent them from reading anything into this that they want and striking down the people's will (legislation) on their whim? If that was the proper interpretation, it would turn our whole system of government on its head.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
the preclusion of any argument that one doe not have a right merely from the absence of it being enumerated. It enshrines the DEclarations inalienable rights concept. The practical fact is covered by the 10th. Since God has left governance to us, except for the 10 commandments, the main right is consent of the governed, which was to mainly take place in the states.
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That wouldn't be covered by the 4th and 5th. I think they make it sufficiently clear there what responsibilities the state has to satisfy when it is investigating someone for or charging someone with a crime. I don't think it would be possible to be in compliance with those amendments while, at the same time, arresting people who haven't broken a law under the theory that they can't do anything unless expressly permitted to do so.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
I don't get your last sentence either. I can say this if it helps, but let's flush this out. The ninth amendment would be of no help to a person charged with saliva pollution on cement under a state law, nor would any provision of the 4th or 5th, as to the substance of the offense. Clearly a state may prohibit defacing public property or private property. But come agin if this doesnt suffice. The ninth serves a narrow purpose. To make clear that the federal government doesnt grant fights. We have rights over and above the ones they chose to list.
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The heading was part of the first sentence... I can see where that could be confusing in this case.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
I don't think it would be possible to be in compliance with those [4th and 5th] amendments while, at the same time, arresting people who haven't broken a law under the theory that they can't do anything unless expressly permitted to do so.
This is in response to the justification that the 9th is required because it makes it clear that all things are permitted unless forbidden by law, not that all things are forbidden unless permitted by law. I think that point is already made clear by the 4th and 5th amendments, and I don't see how you satisfy those without automatically complying with the 9th.
If you don't have written laws and throw somebody in jail for breathing, because there is no law that permits the guy to breathe, you will violate his 5th amendment rights. I don't see how you could give the offender due process without even having a law to charge the offender with.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
The Ninth would prohibit the federal govenment from striking down a law recognizing a right under state law on the grounds that it isn't granted under federal law. The Ninth serves a very limited purpose. To make clear that the federal government was not making an exhaustive list of rights when it ratified the Bill of Rights.
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That is more the 10th's job than the 9th's. I am a big fan of the 10th and it actually does serve a purpose.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
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The Ninth would prohibit the federal govenment from striking down a law recognizing a right under state law on the grounds that it isn't granted under federal law.
With the 10th in place, I don't see where the federal government would find the "power" to strike down a state law recognizing a right.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
kidding
Only Neil could write a blog on such an obscure subject and enage so many geeks for so long!!
I'll get back to you on this. In the meantime, my opinion of the founders is shattered! kidding
You could represent me in a hopeless lost cause any day.
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"If they attack us, it means we're winning." - Rush Limbaugh
I too am surprised how active this topic has been. I think that is a testament to Redstate and the quality of its members.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
We have rights over and above the ones they chose to list.
Maybe this is a disagreement about what exactly "rights" are. There seems to be a hierarchy of rights, some of which may be overridden by majority vote, some of which may not be, but may be overridden by constitutional amendment. And some would argue that there are other rights which may not be overridden even if 100% of the people favor it. Using the same word for these different things is part of the problem.
It's not as if anyone ever claimed that we don't have rights even when they are enumerated. Like the Congress and SC in McCain-Feingold.
being worth volumes of logic, remember the context of the 9th. It, like the rest of the Bill of Rights, was included to ensure the Constitution's ratification. It harkens to natural law theory, making it clear that no omission should be considered intentional. The others are merely enumerated, but that doesn't distinguish them as being more valid.
Its purpose is to remind us and our servant whose instruction book contains it that our rights derive from our status as human beings, free citizens, the sovereign. They are not given to us by our servant the government, including a court or legislature. They are ours.
An example is the freedom to travel. Where is it written that we should be able to move around? Nowhere, but it is one of the most fundamental rights: the right to leave, and go to another town, another State, another country, another planet. I believe it is one of Franklin's "essential" liberties, which I will not give up to secure temporary safety.
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Evil men hide from the truth, but good men stand upon it.
A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever. -John Adams
Please share with us the practical application of your right to travel. Is it proper for a federal court to overturn laws (either state or federal) that place restrictions on travel, based on the 9th Amendment?
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
What we should be doing instead is upholding the 9th along with the rest, but with the constantly-needed reminder that rights and the role of the Judiciary do not change with the makeup of the Supreme Court.
You are describing the world as it ought to be, but not as it is. The fact is that legal rights and the role of the Judiciary do change with the makeup of the Supreme Court. There would be no argument about appointing justices otherwise. There is a seperate discussion to be had about the distinction between legal rights and "real rights", but for all practical purposes your rights are those the courts say you have.
And I'm not sure of how I could persuade you otherwise right now.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
Are you saying that legal rights and the role of judges have not changed over time with changes in the composition of the Court? That seems pretty unarguable.
I'm unwilling to accept them as they stand today, while you seem to take the view that there's no choice but to accept it.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
Even if the courts were radically different (as non-activist), that doesn't put any teeth in the 9th Amendment or give it any concrete meaning, or make it affect our lives in any way. I would theorize that had we skipped #9 we would be in the exact same place we are today, no better and no worse.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.
I don't remember how the courts of England felt about this statement. What do you think?
If the rights that Mr. Jefferson, Adams and Franklin had envisioned for us don't exist perhaps we have a problem.
A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever. -John Adams
Apart from the fact that the Founders themselves did not believe the above phrases (witness their frequent alienation of other peoples rights to Life, etc), how is it a response to anything I said?
My comment was in response to real vs. legal rights comment. If our real rights don't correspond with our legal rights then there is a problem.
A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever. -John Adams
were satisfied with their inalienable rights being protected by their states. That is the most important thing we have lost since 1789, primarily, in my view, due to the power necessarily exercised by the federal government over secession and slavery. All state's rights got wrapped up in the race issue. The next great blow was the Great Depression and the expansion of the application of the interstate commerce clause. We have lost a great asset in laboratories of democracy in many areas. I do think that the roberts court is poised to return state's power over cultural religious issues.
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or should have made a difference? I have a hard time thinking of any real life examples. Of course there could be instances that didn't leave any trail, if for example a judge was tempted to reach some conclusion, but after considering the 9th Amendment decided to simply not go there (instead of writing "I would rule X, but the 9th overrides the argument for X").
My own take on the 9th Amendment's meaning is a pretty narrowly literal one, essentially a reinforcement of how the Constitution should be interpreted even without the 9th.
Authors and supporters of the Constitution when it was proposed (without the Bill of Rights which was added later) believed that no provisions citing guaranteed rights were necessary, because the limitation of federal powers to those that were enumerated, along with common law precedents, already provided such protection. Later, in order to gain support for ratification of the Constitution, they agreed to add a Bill of Rights. I believe the 9th Amendment's point is that adding the Bill of Rights does not negate any common law rights that would have prevailed before the Bill of Rights, i.e. that the Bill of Rights should never be construed to remove legal protection of any previously protected rights. It doesn't create any new legal guarantees that didn't exist before the Bill of Rights.
I think most obviously, it would work in any case where a judge or a legislature justifies an action on the grounds that "The Constitution grants rights X, Y, and Z, but fails to mention W, therefore we have the authority to legislate W away."
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
Congress has every right to legislate W away. They don't have to say anything about using X, Y, and Z in their reasoning. They just pass a law against W, which is signed into law. So long as they don't run afoul of X, Y, and Z or tick the people off with their prohibition on W, they are in the clear. That is why the amendment is truly pointless.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
governments do. Where there is the consent of the governed to prohibit or limit some activity, the people who hold those rights have consented to limit the right. A person in the minority only has recourse against that limitation if he can assert some Constitutional protection for his right to continue to engage in the activity. Absent such protection, he lives with the restriction or suffers the societal consequence.
It seems to me that the evil about which most conservatives are complaining and styling as judicial activism is courts finding constitutional authority to prohibit things to which the governed have consented or to which they would consent if given the opportunity. This is usually done on what many of us would consider specious arguments involving penumbras and emanations and expansive readings of the 14th Am.
In Vino Veritas
I have no problem with placing this in the hands of Congress. I think anything that isn't enumerated in the BOR *should* be in the people's hands. It is up to the people to decide whether something is any business of the government or not. The legislative is how the people make their will known.
I don't want unelected judges gazing into penumbras to pick out the unwritten rights that were supposedly violated by legislation dealing with "W" and throwing that legislation out. When judges aren't working from the text but are instead working from their imagination, you'll get nothing but trouble (Griswold, for example).
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
a Helluva lot less in the hands of Congress. The Courts have let them ride "necessary and proper," general welfare," and "interstate commerce" way, way, way too far. I want it in the hands of the states and would be very happy to see us begin to move away from the lockstep federal hegemony that has been imposed since the Civil War and especially since the New Deal when "commerce" was given all new meaning.
In Vino Veritas
But you don't need the 9th amendment grab bag of mystery rights for that... the 10th should be enough to do that job by itself.
Congress has certainly have gone too far in some places where the Bill of Rights is abundantly clear... the 1st and 2nd Amendments, for example. As far as the judiciary goes, the 2nd may as well not even exist. SCOTUS has never used it to strike down a law, and there is no indication that SCOTUS ever would, no matter how far Congress takes it. Then they've distorted the meaning of the 1st so that is is unrecognizable and does not protect things it should at the same time that it protects things it should not.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
Unless they were never given power to regulate W in the constitution then they are assuming "rights"(powers) they don't have.
A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever. -John Adams
based on its absence from being enumerated in the Bill of Rights.
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Just so long as the 9th isn't interpreted as a constraint on Congress, it is harmless.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
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Constraining the powers of the Federal Government was the furthest thing from the wishes of the Fathers.
Man is free at the moment he wishes to be. --Voltaire
And giving it a blank check to write whatever laws it likes is not constraining it.
Why do libertarians always act as if "government" means only the executive and legislative branches?
But, to answer your question, it started right around the time that conservatives started acting as if "government" meant "the Federal government".
Man is free at the moment he wishes to be. --Voltaire
This might result in people doing things that I find personally offensive!
Are you really willing to risk being offended by someone else's exercising of their so-called "rights"?
Wouldn't it just be better to have the attitude that people are only allowed to do the things on a particular list and anything not on that list is forbidden?
Man is free at the moment he wishes to be. --Voltaire
However, it was a point he would have won anyway. He used the Ninth in order to cite Magna Carta in support of Habeas Corpus. This is a point he would have won in any case under the Fourth. He just wanted to be able to say that it was a right established since 1215.
I also cannot think of anything that was already accepted as being a right in 1801 but not covered elsewhere in the Constitution.
Oh, hang on, there is the right to overthrow the government, as described in the Declaration, but that is one which cannot, by definition, be enforced by the courts.
Quentin Langley
Editor of http://www.quentinlangley.net
zuiko is killing me. i may give up law practice.
please don't blog on privileges and immunities or the appendix
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"If they attack us, it means we're winning." - Rush Limbaugh
Here I got into a little discussion, and get enough ideas in my head to dash out what I think will be another obscure diary on some minor issue, and a whole discussion erupts.
As for privileges and immunites, don't tempt me, heh.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
In the post, Neil accuses “the left” of saying that the Ninth Amendment is nothing more than an "inkblot." Actually, it was Robert Bork who said that. I don’t agree with Bork on this point, but suggesting that “the left” shares Bork’s view is incorrect.
If you look at the most activist judicial decisions of “the left,” you’ll see the Ninth Amendment mentioned prominently. Look at Roe v. Wade, in which Justice Blackmun suggested the Ninth Amendment might be grounds for that decision. See Justice Goldberg’s decision in Griswold, suggesting that the Ninth Amendment may somehow render the Fourteenth Amendment just as powerful as the so-called penumbras and emanations of the Bill of Rights.
I agree with Neil that “The 9th amendment should be as cherished by proponents of a family and community-centered society, as opposed to a government-centered one, as much as proponents of limited government embrace the 10th amendment.”
I also agree that Neil really gets to the heart of the matter when he writes in the comments that the Ninth Amendment “would work in any case where a judge or a legislature justifies an action on the grounds that ‘The Constitution grants rights X, Y, and Z, but fails to mention W, therefore we have the authority to legislate W away.’” That’s exactly right, and is exactly what the framers of the Ninth Amendment intended. The Ninth Amendment makes clear that X, Y, and Z have absolutely nothing to do with whether W may be legislated away; maybe W can be constitutionally legislated away, and maybe W cannot be constitutionally legislated away, but X, Y, and Z don’t tell you one way or the other. That’s the real and enduring message of the Ninth Amendment.
Madison explained (when he introduced the Bill of Rights in Congress) that “rights of the people” result from delegating specific powers to the government. These retained rights are what Madison called “the great residuum.” The Ninth Amendment protects these unenumerated rights from being disparaged merely because they're not explicitly listed. All the same, the Ninth Amendment does not in any way prevent rights from being excluded by specifically delegating power to the government (e.g. the right to be free of commercial regulation is clearly excluded by the Commerce Clause).
Wikipedia has some good info about all this....
http://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Consti...
I'm glad to argue whether the left is willing to read the 9th amendment so sweepingly in practice, but I find it interesting that you consider wikpedia a credible site to link to on this.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
The Wikipedia article may be changed for the worse at any time, but right now it's very good.
It quotes the Sixth Circuit Court of Appeals as follows in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991):
"[T]he ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution."
That really hit the nail on the head.
The Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Ninth Amendment is thus a rule for construing the enumeration of rights, rather than for construing all other laws. It doesn't prevent other laws from excluding rights (e.g. the right to be free of commercial regulation is excluded by the Commerce Clause).
and as I have argued above, the Ninth had a limited but crucial purpose, ie
It memorialized the "inalienable rights endowed by our creator" from the declaration, in the Constitution
and it served a political pyrpose to get ratification votes
Its use as authority in legal opinions is limited since no one makes ther argument of exclusion
http://devine-gamecock.townhall.com
www.race42008.com
"Within the covers of the Bible are the answers for all the problems men face." - Ronald Reagan
Actually didn't I say in the diary, that I don't think Roe would have gone the other way had the 9th not been there?
To me, the 9th is just being stuck on there in the same way the Blues Brothers stick a trash can in front of the door at the Cook County Assessor's Office: a pathetic attempt they had to make to keep the forces of reason from busting through.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
a better question is whether Roe would have gone the same way had the Due Process Clause not been available. Justice Blackmun suggested it would have, on account of the Ninth Amendment. In any event, the District Court decision in Roe definitely relied upon the Ninth, instead of relying on Due Process.
http://hometown.aol.com/abtrbng/roedist.htm
"On the merits, plaintiffs argue as their principal contention [FN7] that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couples of their right, secured by the Ninth Amendment, [FN8] to choose whether to have children. We agree."
I only mention the Wikipedia article because at this particular moment it's very good. Of course, it may go down the drain at any time.
There are two main schools of thought regarding the Ninth. One regards the Ninth as being little more than a tautology. The people have various rights not enumerated in the Bill of Rights. They also have the right to change the Constitution so as to add (or remove) further rights to it. This school includes the Supreme Court, both conservatives and liberals, throughout its history. Even when the liberal members of the Court want to mint a fresh “right” they look to the Fourteenth and other Amendments rather than the Ninth.
The other school believes that Ninth Amendment ought to be seen as a check on government power and that the courts can and should strike down virtually every law which in their opinion lacks a compelling basis. This is a pretty small school – the only significant figure I know of who thinks this way is Randy Barrett, a rather extreme libertarian law professor.
At the end of the day, this comes down to an argument about "Who decides?". The expansive interpetation of the Ninth means that the judges decide, while the narrow meaning says that "the people" decide via the legisaltive process. Therefore I thinks its clear that the "conservative" position is the narrow interpetation, since conservatives are reluctant to hand the Court any further blank checks.
In other words, the 9th does NOT say;
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. These rights shall be held in trust for the people by the Courts, who shall define them and protect them from the other branches of government.