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

[Indy Texas]

Usually when a part of the Constitution is explicitly referenced, it's by conservatives referring to the Second and Tenth Amendments.

But the Ninth Amendment - "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." - seems like the best arrow in the quiver liberals, particularly judicial liberals, have. Indeed, it was the Ninth Amendment that formed the bulk of the basis for the decision in Roe v. Wade.

Conservatives' main response to many things liberals want or try to do is along the lines of "The Constitution doesn't explicitly allow that" or "The Constitution doesn't have a right to ________ listed anywhere in it, therefore that right doesn't exist."

It would seem that pointing out that the absence of enumeration of a right does not preclude the existence of one would be a pretty logical starting point to respond to that. 

[bedstuy]

Not really.  When conservatives are saying "the Constitution does explicitly allow that," they are saying that the Federal government lacks the authority to do something, not that the people lack a certain right.

Also, liberals shouldn't point to Roe v. Wade as an example of good Constitutional decisionmaking.  Roe v. Wade, even if it's the right result, is garbage.  It's basically sui generis nonsensical jurisprudence that would never fly today.

[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.

[Indy Texas]

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.

[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.

[🐒Gods of Prosperity🔱🐲💸]

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.

[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.

[🐒Gods of Prosperity🔱🐲💸]

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.

[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?

[Franzl]

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

[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).

[🐒Gods of Prosperity🔱🐲💸]

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. 

[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.

[Southern Senator North Carolina Yankee]

Because the ninth amendment is a restraint on government and the modern left in cluding modern liberals believe gov't imposes people's rights on them, rather than them being natural.

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.

[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.

[Tetro Kornbluth]

Because it's utterly meaningless...

[🐒Gods of Prosperity🔱🐲💸]

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

[Lief 🗽]

Antonio, you just have to understand that you and 18th century Americans have very different legal conceptions of rights. They disagree with your entire foundation for this conversation, and vice versa.

[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.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

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.

[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).

[I spent the winter writing songs about getting better]

Antonio, you just have to understand that you and 18th century Americans have very different legal conceptions of rights. They disagree with your entire foundation for this conversation, and vice versa.

Pretty much this. Trying to analyze it from a modern day context is pointless. Of course this also highlights the absurdity of the "OMG THIS ISN'T WHAT THE FOUNDERS WOULD'VE WANTED!" type of arguments.