Why don't liberals more aggressively promote the Ninth Amendment?

[Antonio the Sixth]

The Ninth Amendment has always struck me as a one the most absurd and meaningless piece of constitutional text ever written. The point of a constitution is enumerating rights; if the people have other rights that those enumerated in the constitution, then who is to guess what these rights are?

And yeah, regardless of how you feel about abortion, Roe v. Wade was an awful decision from the strictly legal standpoint.

[Antonio the Sixth]

The Ninth Amendment has always struck me as a one the most absurd and meaningless piece of constitutional text ever written. The point of a constitution is enumerating rights; if the people have other rights that those enumerated in the constitution, then who is to guess what these rights are?

And yeah, regardless of how you feel about abortion, Roe v. Wade was an awful decision from the strictly legal standpoint.

I would imagine that it was written because the Framers knew that if the United States succeeded as a national experiment and was still around hundreds of years later, the world would likely be a very different place from the one in which they lived. That is, the Constitution doesn't limit Americans' rights to those enumerated because the Framers did not want to hold 21st century people hostage to the wills and ideas of 18th century men - and it was very wise and prescient of them not to.

I have no doubt the intent behind it was a worthy one, but regardless the wording doesn't make any sense. What does it mean that people have other rights than those enumerated by the Constitution? The way the framers understood the concept of "right", it simply means a limitation on legislative power. So what's the point of the 9th amendment? To say that, apart from what the rest of the bill of rights says, there are other things that the government can't do? But who decides what these things are? Either it's Congress (in which case it's utterly meaningless) or it's the Supreme Court (which would basically give them unlimited power). Whatever the case, it's a terrible idea.

[Antonio the Sixth]

The assumption is the existence of rights in the natural law and the common law.  The Bill of Rights therefore is not an exhaustive list of rights, and that is the point the 9th amendment makes.  Madison would not support a bill of rights without this, since he was afraid the government would expand it's powers up to the point where something wasn't explicitly prohibited for the government to do. And that has basically happened, even with the 9th amendment.  Modern liberals have no interest in advocating adherence to it, since it would call into question everything the government has done in terms of abrogation of property rights or other regulations that rest on an unconstrained view of the enumerated powers.

Natural law is a foolish myth and common law only comes to exist through the legislator's action, so that any right existing in common law is a right granted by the legislator. So this only makes it clearer why the 9th Amendment is an empty shell.

[Antonio the Sixth]

The assumption is the existence of rights in the natural law and the common law.  The Bill of Rights therefore is not an exhaustive list of rights, and that is the point the 9th amendment makes.  Madison would not support a bill of rights without this, since he was afraid the government would expand it's powers up to the point where something wasn't explicitly prohibited for the government to do. And that has basically happened, even with the 9th amendment.  Modern liberals have no interest in advocating adherence to it, since it would call into question everything the government has done in terms of abrogation of property rights or other regulations that rest on an unconstrained view of the enumerated powers.

Natural law is a foolish myth and common law only comes to exist through the legislator's action, so that any right existing in common law is a right granted by the legislator. So this only makes it clearer why the 9th Amendment is an empty shell.

Well, sure, if you don't believe in the ideological basis for the American Revolution and the Bill of Rights it's not going to make any sense.

Well, if this is the case, the Bill of Rights itself does not believe in the "ideological basis for the American Revolution and the Bill of Rights". Why in the world would you need to enumerate a set of rights in your constitution if those rights are "natural" and exist independently from any legal document?

[Antonio the Sixth]

The concept of natural rights is meaningless as "rights" of any kind only exist to the extent they are observed.

I would rather say that "rights" of any kind only exist to the extent they are codified (of course legal recognition of a right does not ensure its respect, but at least in such a case there still is an official an universally recognized text to which one can appeal to defend themselves).

[Antonio the Sixth]

The assumption is the existence of rights in the natural law and the common law.  The Bill of Rights therefore is not an exhaustive list of rights, and that is the point the 9th amendment makes.  Madison would not support a bill of rights without this, since he was afraid the government would expand it's powers up to the point where something wasn't explicitly prohibited for the government to do. And that has basically happened, even with the 9th amendment.  Modern liberals have no interest in advocating adherence to it, since it would call into question everything the government has done in terms of abrogation of property rights or other regulations that rest on an unconstrained view of the enumerated powers.

Natural law is a foolish myth and common law only comes to exist through the legislator's action, so that any right existing in common law is a right granted by the legislator. So this only makes it clearer why the 9th Amendment is an empty shell.

Well, sure, if you don't believe in the ideological basis for the American Revolution and the Bill of Rights it's not going to make any sense.

Well, if this is the case, the Bill of Rights itself does not believe in the "ideological basis for the American Revolution and the Bill of Rights". Why in the world would you need to enumerate a set of rights in your constitution if those rights are "natural" and exist independently from any legal document?

As a protection for certain of those rights that they believed would be most likely to be infringed by the national government. 

So I guess they were just too lazy to include the other "natural" rights into the list as well.

[Antonio the Sixth]

The assumption is the existence of rights in the natural law and the common law.  The Bill of Rights therefore is not an exhaustive list of rights, and that is the point the 9th amendment makes.  Madison would not support a bill of rights without this, since he was afraid the government would expand it's powers up to the point where something wasn't explicitly prohibited for the government to do. And that has basically happened, even with the 9th amendment.  Modern liberals have no interest in advocating adherence to it, since it would call into question everything the government has done in terms of abrogation of property rights or other regulations that rest on an unconstrained view of the enumerated powers.

Natural law is a foolish myth and common law only comes to exist through the legislator's action, so that any right existing in common law is a right granted by the legislator. So this only makes it clearer why the 9th Amendment is an empty shell.

Well, sure, if you don't believe in the ideological basis for the American Revolution and the Bill of Rights it's not going to make any sense.

Well, if this is the case, the Bill of Rights itself does not believe in the "ideological basis for the American Revolution and the Bill of Rights". Why in the world would you need to enumerate a set of rights in your constitution if those rights are "natural" and exist independently from any legal document?

As a protection for certain of those rights that they believed would be most likely to be infringed by the national government. 

So I guess they were just too lazy to include the other "natural" rights into the list as well.

They were trying to be forward looking and not limit the scope of the rights being protected from the gov't intrusion and usurpation.

But this. Just. Can't. Be. Done. Unless you specify a right in a legal document, then it's not a right. Period.

[Antonio the Sixth]

Thanks, Gully.

Antonio, I don't think even most legal positivists believe that a right necessarily depends on its existence in a legal document.

Really? Because it strikes me as plain common sense.

[Antonio the Sixth]

Antonio, I don't think even most legal positivists believe that a right necessarily depends on its existence in a legal document.

Really? Because it strikes me as plain common sense.

Is it possible there's a difference between Anglo-American and Continental perceptions of what constitutes 'law' going on here? Just a thought.

I think I'm using the term "legal" in a pretty broad sense, including all the sources of norms that emanate, directly or indirectly, from the polity. I have a hard time imagining another source of effectively enforceable rights (of course, a philosophical theory can produce a notion of what rights should exist, but these rights cannot be considered as universal if they emanate from a person's own reflection).