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| |-+  Constitution and Law (Moderator: True Federalist)
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Poll
Question: Are there are any unenumerated rights protected by the Constitution?
Yes, there are many   -22 (68.8%)
Yes, but only a few   -4 (12.5%)
No   -6 (18.8%)
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Total Voters: 32

Author Topic: Unenumerated Rights  (Read 11579 times)
Peter
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« on: July 14, 2005, 08:07:55 am »
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If you answer "No", how exactly do you get around the 9th's determination that non-enumeration is itself not a reason to deny something claimed as a right?
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frenger
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« Reply #1 on: July 14, 2005, 08:19:13 am »
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Can you provide us some context?
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« Reply #2 on: July 14, 2005, 08:21:40 am »
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Can you provide us some context?

Amendment IX. 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.

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A18
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« Reply #3 on: July 14, 2005, 08:26:10 am »
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Yes, but the ninth amendment does not add any right. It is merely a rule of construction.

Hamilton said, why have a right to free speech when there's nothing in the Constitution allowing Congress to deny it to you? You already had that right. He argued that a bill of rights would be dangerous, as it could serve as justification for Congress assuming a general regulatory power.

In introducing the bill of rights, Madison made his intention clear:

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.
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« Reply #4 on: July 14, 2005, 08:33:46 am »
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Can you provide us some context?

Amendment IX. 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.



No, I mean context as to why he is asking.
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Emsworth
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« Reply #5 on: July 14, 2005, 08:52:32 am »
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Yes, but the ninth amendment does not add any right. It is merely a rule of construction.
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« Reply #6 on: July 14, 2005, 08:59:16 am »
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Yes, but the ninth amendment does not add any right. It is merely a rule of construction.

Finally something we agree on with regard to the Constitution Smiley
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Lewis Trondheim
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« Reply #7 on: July 14, 2005, 09:02:32 am »
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Yes, but the ninth amendment does not add any right. It is merely a rule of construction.
What's the practical consequence of that valid point you're making, though?

Either you have all these unenumerated rights anyways, and the 9th just spells it out again so that every authoritarian gets the message,
or you have them thanks to the 9th and wouldn't have them otherwise.
Either way you end up with these rights, right?
(Let's leave the question of what rights we might be talking about out of the discussion here...)
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« Reply #8 on: July 14, 2005, 09:09:09 am »
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Yes, but all that means is that the Congress can't deny you any right unless the Constitution explictly allows it.

The amendment is just a safe guard, stating that the Bill of Rights may not by implication be taken to increase the powers of the federal government in areas not enumerated.
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« Reply #9 on: July 14, 2005, 09:09:31 am »
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A18 is correct to state that this is a rule of construction. However, he doesn't seem to consider how it can only be applied, because the construction necessarily results in the acknowledgment of certain rights. To begin, the text must be examined carefully. When it is forbidden to read the Constitution in such a way as to abridge extra-Constitutional rights retained by the people, it is only reasonable to perceive these freedoms as being on a Constitutional plane. How else could be they be viewed as pre-empting the interpretation of the supreme law of the land? For that reason, the judiciary must recognize their existence and their central nature. Fortunately or unfortunately, this is the extent of the help that the Constitution provides.

In order to protect these additional rights, we must look outside of the Constitution. This is an open construction, and admittedly a highly subjective one. I regret to say this, but it is an excellent example of legal indeterminacy. Essentially, the only way to decide what rights are protected by this amendment is by justifying their protection within the concept of a system of constitutional liberties.

The focus of the litigation surrounding this amendment is doubtless questions of abortion, homosexual sodomy, etc. Of course, I believe that these things are so basically private, so beyond the reaches of any authority, that their legal protection is assured as fundamental. In light of this, though, I would suggest that it is perfectly legitimate not to view sodomy as constitutionally protected, just as long as no one is given more of a right to it than anyone else. Abortion is complicated by larger equal protection issues, but I imagine if a judge could dispose of those to his satisfaction, he could find it unprotected within some theory of unenumerated rights.

However, we must be aware of some erroneous perceptions. Some liberals find it fitting to view this amendment as reflecting the community's evolving standards of decency. This is dangerous, and far more democratic than our Constitution is or should ever be. Inevitably, the amendment is a perdurable feature of the document,  and is perhaps best described as the philosophical battleground of legal rights.
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Emsworth
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« Reply #10 on: July 14, 2005, 09:12:29 am »
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Yes, but the ninth amendment does not add any right. It is merely a rule of construction.
What's the practical consequence of that valid point you're making, though?
The Ninth Amendment is not a substantive source of constitutional guarantees or rights. One cannot accurately rely solely on the Ninth Amendment when arguing that one has any particular right. For instance, the argument that "women have the right to have abortions under the Ninth Amendment" is unsound. The Amendment is, as A18 points out, simply a "rule of construction."
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Lewis Trondheim
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« Reply #11 on: July 14, 2005, 09:16:22 am »
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Yes, but the ninth amendment does not add any right. It is merely a rule of construction.
What's the practical consequence of that valid point you're making, though?
The Ninth Amendment is not a substantive source of constitutional guarantees or rights. One cannot accurately rely solely on the Ninth Amendment when arguing that has any particular right. For instance, the argument that "women have the right to abortions under the Ninth Amendment" is unsound. The Amendment is, as A18 points out, simply a "rule of construction."
So that argument just changes to "women have the right to abortion anyways, and the 9th makes sure it can't be taken away from them".
What have you gained? I'm seriously asking. (Also, notice that I'm not of the opinion that "women have the right to abortion anyways").
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Emsworth
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« Reply #12 on: July 14, 2005, 09:19:37 am »
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So that argument just changes to "women have the right to abortion anyways, and the 9th makes sure it can't be taken away from them".
Rights do not exist simply because you or I say they do. There must be some reason, some logic, some constitutional, legal, or historical basis for arguing that the right does exist. A mere statement that it exists is insufficient.
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« Reply #13 on: July 14, 2005, 09:29:00 am »
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So that argument just changes to "women have the right to abortion anyways, and the 9th makes sure it can't be taken away from them".
Rights do not exist simply because you or I say they do. There must be some reason, some logic, some constitutional, legal, or historical basis for arguing that the right does exist. A mere statement that it exists is insufficient.

Quite right, because you could also say "a fetus has the right to life, and the 9th makes sure it can't be taken away from them so abortion is unconstitutional and can't be allowed". You could come up with any number of contradicting rights if you used that kind of logic with the 9th.
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Lewis Trondheim
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« Reply #14 on: July 14, 2005, 09:29:31 am »
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Quote
What Emsworth said
Obviously. Was that the whole point?

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Emsworth
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« Reply #15 on: July 14, 2005, 09:32:09 am »
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Was that the whole point?
Consider an argument along the following lines: "The Constitution does not explicitly mention the right to an abortion. Therefore, you do not have the right to an abortion." The point of the Ninth Amendment was to ensure that such arguments would not be treated as valid.
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Lewis Trondheim
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« Reply #16 on: July 14, 2005, 09:34:49 am »
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Was that the whole point?
Consider an argument along the following lines: "The Constitution does not explicitly mention the right to an abortion. Therefore, you do not have the right to an abortion." The point of the Ninth Amendment was to ensure that such arguments would not be treated as valid.
Yes, I got that. Smiley It's okay.
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A18
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« Reply #17 on: July 14, 2005, 10:51:52 am »
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Was that the whole point?
Consider an argument along the following lines: "The Constitution does not explicitly mention the right to an abortion. Therefore, you do not have the right to an abortion." The point of the Ninth Amendment was to ensure that such arguments would not be treated as valid.

Not at all. The argument would be: "The Bill of Rights does not explicitly mention the right to murder people. Therefore, you do not have the right to murder people." But since Congress has no power to prohibit murder, you do have the right to murder within the 50 states (only with regard to the federal government).
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Emsworth
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« Reply #18 on: July 14, 2005, 10:54:58 am »
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Not at all. The argument would be: "The Bill of Rights does not explicitly mention the right to murder people. Therefore, you do not have the right to murder people." But since Congress has no power to prohibit murder, you do have the right to murder within the 50 states (only with regard to the federal government).
That's in part my point. Here, you rely not only on the Ninth Amendment, but also the enumeration of powers. An argument that relies solely on the Ninth Amendment in support of a purported right is invalid.
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A18
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« Reply #19 on: July 14, 2005, 10:58:21 am »
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The point to the ninth amendment is to keep the government chained to the enumerated powers. For example, there already was a right to free speech in each state prior to the first amendment, due to the enumerated powers; the first amendment simply made an explicit note of it.

All that really changed is that the Congress could no longer infringe upon free speech in the territories.
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« Reply #20 on: July 14, 2005, 09:05:34 pm »
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The focus of the litigation surrounding this amendment is doubtless questions of abortion, homosexual sodomy, etc. Of course, I believe that these things are so basically private, so beyond the reaches of any authority, that their legal protection is assured as fundamental.

However, we must be aware of some erroneous perceptions. Some liberals find it fitting to view this amendment as reflecting the community's evolving standards of decency.

If there is a constitutional right to privacy, then aren't 'community standards of decency' completely superfluous? 
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A18
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« Reply #21 on: July 14, 2005, 09:12:46 pm »
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There is no constitutional right to privacy, so it's irrelevant.
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« Reply #22 on: July 14, 2005, 09:16:36 pm »
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There is no constitutional right to privacy, so it's irrelevant.

Ah, you and I simply interpret the old document differently. 
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« Reply #23 on: July 14, 2005, 09:18:22 pm »
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See, I simply interpret that post differently:

I am an idiot
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Emsworth
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« Reply #24 on: July 14, 2005, 09:18:59 pm »
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There is no constitutional right to privacy, so it's irrelevant.
I would say that there is indeed a right to privacy. Such a deduction is supported, in my view, by the penumbra (sorry that I have to resort to this word) of the Fourth Amendment.
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