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Posted: 10/5/2007 10:44:02 PM EST

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


This is probably the most 'oddball' portion of the Bill of Rights - so much so that no judge has ever actually used it in a ruling...

It's often tossed around on this board as a constitutional justification for anarchisim - 'The 9th means I can do whatever the hell I want as long as I don't harm someone else', and such...

The biggest issue with the 9th is it gives no indication as to what these 'retained' rights are...

Everything could be a 'retained right' - or there might only be one or two of them...

It's a judicial escape-clause which gives the SCOTUS an absurd amount of wiggle-room to declare new 'rights' on a whim... Right to a job, for instance... Or to be provided with health care... And so on....

Now obviously, the Founders didn't want it to protect 'Whatever the hell you want to do, unless you hurt someone'...

But it's got to protect SOMETHING...

Discuss....


Link Posted: 10/5/2007 10:50:08 PM EST
It's widely acknowledged that the "right to privacy" is one of those rights.

The basic idea is that the Bill Of Rights was not intended to enumerate ALL rights.

Link Posted: 10/5/2007 10:58:17 PM EST
Yeah, it was included because some founding fathers were afraid that if they made a list of rights (read: Bill of Rights) anything not listed would not be considered a right. (The right to privacy, for example)

Unfortunately it's basically ignored.
Link Posted: 10/5/2007 11:07:24 PM EST
[Last Edit: 10/5/2007 11:09:46 PM EST by 1Andy2]
Constitution was not written to list the powers or rights of the people. Nor was it written to restrain or police the power of individuals in any way.

The sole reason for the Constitution of the US was to create a federal government of limited, enumerated powers.

The very idea that the 9th Amendment somehow "creates" rights is ludicrous. I'm not sure WHY you think its a conundrum. The language is VERY plain. Do you not understand it as written or do you simply find it distasteful?

eta: Who created people? So who gives him his rights? And where are those rights listed?

By contrast, who created government? And who gives government its powers? And where are those powers listed?

Ponder these two sets of questions long enough, and I believe you may begin to understand something profound.
Link Posted: 10/5/2007 11:07:27 PM EST
What the 9th is warning and prohibiting against is for example the way that the 2nd is being misconstrued as to mean the word "militia" contained in it really means National Guard, when it obviously means the people/citizens.
Link Posted: 10/5/2007 11:25:40 PM EST

Originally Posted By 1Andy2:
Constitution was not written to list the powers or rights of the people. Nor was it written to restrain or police the power of individuals in any way.

The sole reason for the Constitution of the US was to create a federal government of limited, enumerated powers.

The very idea that the 9th Amendment somehow "creates" rights is ludicrous. I'm not sure WHY you think its a conundrum. The language is VERY plain. Do you not understand it as written or do you simply find it distasteful?

eta: Who created people? So who gives him his rights? And where are those rights listed?

By contrast, who created government? And who gives government its powers? And where are those powers listed?

Ponder these two sets of questions long enough, and I believe you may begin to understand something profound.


In the present era where rights are 'created' by court ruling, you can debate the above all you want... No one cares... You are also not going to win any legal arguments by invoking God - remember, not everyone in this country believes He exists (I do, but that does not translate to the 'legal world'), and a few such people sit on the Federal bench....

The language is also far from clear, in legal terms...

These 'rights' are out there, but since they are not written down anywhere, nor is there any guidance enclosed to indicate what they may be, the existence of a '9th Amendment Right' is 100% in the lap of the judge hearing the case...

Link Posted: 10/5/2007 11:26:30 PM EST
[Last Edit: 10/5/2007 11:28:38 PM EST by Dave_A]

Originally Posted By PeteCO:
It's widely acknowledged that the "right to privacy" is one of those rights.

The basic idea is that the Bill Of Rights was not intended to enumerate ALL rights.



Funny, the 'right to privacy' was created out of a 'penumbra of the 14th' with no reference to the 9th...

There is, IIRC, no case law on the 9th, it has been essentially ignored....

I would put out that the vague language, combined with the possibility for a legal logic-deadlock if it were taken to the most absolute limits (eg how to handle 2 conflicting claims of a 9th ammendment 'right') is probably why this has occurred....
Link Posted: 10/5/2007 11:36:30 PM EST

Originally Posted By Dave_A:

The language is also far from clear, in legal terms...





The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people


All powers and rights are INHERENT in the people. Unless otherwise SPECIFICALLY relenquished to the government.

This is the fundamental guiding principle behind the US Constitution. I'm amazed you've never heard of it.
Link Posted: 10/5/2007 11:56:44 PM EST
I don't have the annotated US Code with me here in Iraq, but my recollection from law school was the Third Amendment was the only one wiht no annotations, my memory maybe faulty though.

However, be that as it may, the Bill of Rights was a hotly contested addition to the Constituion. Many were opposed to the BoR becuase they beleived the enumeration of certain rights would lead other people to beleive that other rights were not in fact protected. The Ninth Amendment was simply the compromise that helped move the BoR along. It essentially says "Hey, just beucase we did not list something as a protected right, does not mean it is not protected."

Everything in the Constituation means something, so is just more relevant than others.

The necessary and proper clause is a good example. I have had discussions with many people that beleive "necessay and proper" means anything Congress wants it to mean. If that is the standard, then there is no reason to have a Constituion in the first place.

The Nineth does not give way to anarchy, but it is a restatment of the fact the Federal Goverment must have an enumerated power before it starts regulating.
Link Posted: 10/6/2007 12:04:11 AM EST

Originally Posted By PeteCO:
It's widely acknowledged that the "right to privacy" is one of those rights.

The basic idea is that the Bill Of Rights was not intended to enumerate ALL rights.



Yep. Some rights were meant to be so common sense in nature that the Founders felt that they shouldn't have to write to protect them.

The right of a person to privacy and to be secure in their own possessions and property is such a basic tenent of civilized humanity that it should be self-evident.

Our rights are supposed to come from our Creator, not from anything written by men.
Link Posted: 10/6/2007 12:07:31 AM EST

Originally Posted By 1Andy2:

Originally Posted By Dave_A:

The language is also far from clear, in legal terms...





The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people


All powers and rights are INHERENT in the people. Unless otherwise SPECIFICALLY relenquished to the government.

This is the fundamental guiding principle behind the US Constitution. I'm amazed you've never heard of it.


It's pretty obvious to me. If the government isn't specifically allowed to do it, they shouldn't be doing it. If the government is unsure on wether or not they are allowed to do something under the Constitution, then the representatives of the people need to vote on it based on the will of the people.

The Constitution and the Bill Of Rights were specifically written to limit the government, not the people. The founders believed that the rights of the people are granted by their Creator, not by the US Government.
Link Posted: 10/6/2007 12:16:35 AM EST

The language is also far from clear, in legal terms...


Come again?

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

It's perfectly clear in "legal trems" (whatever that is supposed to mean). It means the argument that such a right, whatever right we are arguing about, was not listed in the Bill or Rights does not mean it does not exist.

Randy Barnett, professor of legal thery at Georgetown Law has an article, the The Ninth Amendment Means What is Says.

There is little ambiguity.
Link Posted: 10/6/2007 12:17:01 AM EST
[Last Edit: 10/6/2007 12:20:48 AM EST by mjmjr1312]

Originally Posted By Bob1984:

Originally Posted By 1Andy2:

Originally Posted By Dave_A:

The language is also far from clear, in legal terms...





The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people


All powers and rights are INHERENT in the people. Unless otherwise SPECIFICALLY relenquished to the government.

This is the fundamental guiding principle behind the US Constitution. I'm amazed you've never heard of it.


It's pretty obvious to me. If the government isn't specifically allowed to do it, they shouldn't be doing it. If the government is unsure on wether or not they are allowed to do something under the Constitution, then the representatives of the people need to vote on it based on the will of the people.

The Constitution and the Bill Of Rights were specifically written to limit the government, not the people. The founders believed that the rights of the people are granted by their Creator, not by the US Government.


wouldn't most of what you stated there about the limits of the govt and what they have the ability to do be covered by the 10th, don't flame me I am no law student, but that is my understanding. the 9th is a little confusing to me, there are better ways to state that the BOR is not an end all list of rights than the wording used even with period language

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people."

-Mike
Link Posted: 10/6/2007 12:23:53 AM EST

Originally Posted By mjmjr1312:

Originally Posted By Bob1984:

Originally Posted By 1Andy2:

Originally Posted By Dave_A:

The language is also far from clear, in legal terms...





The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people


All powers and rights are INHERENT in the people. Unless otherwise SPECIFICALLY relenquished to the government.

This is the fundamental guiding principle behind the US Constitution. I'm amazed you've never heard of it.


It's pretty obvious to me. If the government isn't specifically allowed to do it, they shouldn't be doing it. If the government is unsure on wether or not they are allowed to do something under the Constitution, then the representatives of the people need to vote on it based on the will of the people.

The Constitution and the Bill Of Rights were specifically written to limit the government, not the people. The founders believed that the rights of the people are granted by their Creator, not by the US Government.


wouldn't most of what you stated there about the limits of the govt and what they have the ability to do be covered by the 10th, don't flame me I am no law student, but that is my understanding. the 9th is a little confusing to me, there are better ways to state that the BOR is not an end all list of rights than the wording used even with period language

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people."

-Mike


I agree that it does seem a bit redundant. The Constitution was meant to be taken literally, though the wording of certain Amendments could have been better.

What was clear in the language of the time might be somewhat ambiguous to a modern reader who isn't used to the way English was written and used during the time period in question.
Link Posted: 10/6/2007 12:29:11 AM EST

Originally Posted By sms5183:

The language is also far from clear, in legal terms...


Come again?

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

It's perfectly clear in "legal trems" (whatever that is supposed to mean). It means the argument that such a right, whatever right we are arguing about, was not listed in the Bill or Rights does not mean it does not exist.

Randy Barnett, professor of legal thery at Georgetown Law has an article, the The Ninth Amendment Means What is Says.

There is little ambiguity.


Dave_A would consider Barnett an Anarchist. I doubt he could wrap his mind around anything Barnett has written, let alone Spooner or Chodorov.

I think he is a Holnist at heart.
Link Posted: 10/6/2007 3:18:13 AM EST
The 9th Amendment states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The 10th Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people."

Not at all redundant. The 9th is about RIGHT, the 10th is about POWERS. Powers and Rights are two different things.

We the People, through our Constitution, give our government the POWER to levy taxes, raise armies, and other things. Government does not have Rights. Only people can have Rights.

The Bill of Rights lists specific Rights of the People, and at the same time restricts the Government from interfereing with those rights. The Bill of Rights and the Constitution as a whole also gives Government specific POWERS, and restricts what government may do.

States have Rights only in regard to the Federal Government. States have Powers in regard to their citizens.

Link Posted: 10/6/2007 7:41:18 AM EST
Ok...

What I meant to say was that your '9th Ammendment Rights' are not clear in legal terms...

This, personally is what concerns me about the Ammendment, as it seems to provide a legal 'out' for anything to become a 'right'...

Remember, the FFs never envisioned the judiciary in it's current role, either......
Link Posted: 10/6/2007 7:43:56 AM EST
It leaves room for common law to be made from the bench.

It allows the courts to follow the local customs of the community and gives judical flexibility.
Link Posted: 10/6/2007 7:49:33 AM EST
I wonder then, if the 9th could not be used to counter the argument that people don't have the right to drive on public roads. You often hear it called a "privelege" and then they mention the fact that there is nothin in the Constitution about a right to drive.

Would the 9th cover this?
Link Posted: 10/6/2007 11:10:12 AM EST

Originally Posted By Paveway_:
It leaves room for common law to be made from the bench.

It allows the courts to follow the local customs of the community and gives judical flexibility.


And the above is one of most Conservatives primary complaints about the government for the past 30-50 years... The making of law from the bench...

Link Posted: 10/6/2007 11:14:51 AM EST

Originally Posted By Dave_A:

Originally Posted By Paveway_:
It leaves room for common law to be made from the bench.

It allows the courts to follow the local customs of the community and gives judical flexibility.


And the above is one of most Conservatives primary complaints about the government for the past 30-50 years... The making of law from the bench...



Common law is part of the splitting of power between the legislative branch and the judical branch.

Statutory law will always trump common law. If the legislature dislikes common law of a jurisidiction all they have to do is pass a statute.
Link Posted: 10/6/2007 11:23:09 AM EST
The 9th amendment, on its face, preserves in perpetuity (at least from federal encroachment) every right possessed by free men at the time of its adoption, or at least precludes the nonenumeration of a given right as a basis for determining that it does exist. It has been cited, though the only citation I recall is in the abominably ill-reasoned Roe vs Wade opinion, and there not directly relied upon or construed.

I have long suspected that the reason Roe was not decided entirely on the strength of the 9th (at Common Law, abortion was not a crime until the fetus was "quick," i.e., moving in the womb) is that acknowledging that the 9th preserved the rights of Americans as they existed in 1789 would undo most federal legislation enacted since 1900, and just about all of it enacted after 1913.
Link Posted: 10/6/2007 11:23:25 AM EST
height=8
Originally Posted By Dave_A:
height=8
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


This is probably the most 'oddball' portion of the Bill of Rights - so much so that no judge has ever actually used it in a ruling...

It's often tossed around on this board as a constitutional justification for anarchisim - 'The 9th means I can do whatever the hell I want as long as I don't harm someone else', and such...

The biggest issue with the 9th is it gives no indication as to what these 'retained' rights are...

Everything could be a 'retained right' - or there might only be one or two of them...

It's a judicial escape-clause which gives the SCOTUS an absurd amount of wiggle-room to declare new 'rights' on a whim... Right to a job, for instance... Or to be provided with health care... And so on....

Now obviously, the Founders didn't want it to protect 'Whatever the hell you want to do, unless you hurt someone'...

But it's got to protect SOMETHING...

Discuss....




It's so simple that only a lawyer could screw it up.

The Constitution is a list of powers specifically delegated from the people to the federal government. If it's not in that document, then it is retained by the people. The 9th and 10th amendments were supposed to reinforce this.

In point of fact, the primary objection to the Bill of Rights way back when was that enumerating rights would make those rights a restrictive list. Turns out they were right. This current discussion is proof.
Link Posted: 10/6/2007 11:32:14 AM EST
[Last Edit: 10/6/2007 11:51:01 AM EST by twl]
Link Posted: 10/6/2007 11:32:25 AM EST
"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."

James Madison, Annals of Congress 439 (1789)

Link Posted: 10/6/2007 11:53:04 AM EST

Originally Posted By 1Andy2:

Originally Posted By Dave_A:

The language is also far from clear, in legal terms...





The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people


All powers and rights are INHERENT in the people. Unless otherwise SPECIFICALLY relenquished to the government.

This is the fundamental guiding principle behind the US Constitution. I'm amazed you've never heard of it.


Amen, brother.
Link Posted: 10/6/2007 11:58:29 AM EST

Originally Posted By Dave_A:

Originally Posted By Paveway_:
It leaves room for common law to be made from the bench.

It allows the courts to follow the local customs of the community and gives judical flexibility.


And the above is one of most Conservatives primary complaints about the government for the past 30-50 years... The making of law from the bench...



Thats because conservative commentators have been really good at convincing the masses that judges don't make law, when in fact thats exactly what the system is set up to do.
Link Posted: 10/6/2007 12:05:54 PM EST
The Federal Constitution was meant only to enumerate and limit powers on the national government. That is to explain which powers that were to that point mostly state powers would from 1787 (89) on be National Government powers. The 9th, much like the 10th, leaves it to the states to enumerate protections and exercise power. However, considering the (until very recently) trend of SCOTUS to ignore the 10th Amendment it would seem likely that the purpose of the 9th will continue to be ignored. Read the 9th and 10th Amendments together. It is like reading Article I, Sectons 8 and 9 side by side. "Rights of the people protected" is the same thing as saying "power of government restricted" much like Section 8 enumerates Congressional power and Section 9 enumerated Congressional limits (translates to rights of people/states protected).

At least that's how I read it.
Link Posted: 10/6/2007 12:09:09 PM EST

Originally Posted By badfish274:

Originally Posted By Dave_A:

Originally Posted By Paveway_:
It leaves room for common law to be made from the bench.

It allows the courts to follow the local customs of the community and gives judical flexibility.


And the above is one of most Conservatives primary complaints about the government for the past 30-50 years... The making of law from the bench...



Thats because conservative commentators have been really good at convincing the masses that judges don't make law, when in fact thats exactly what the system is set up to do.


The problem is not the Common Law. Our entire legal system rests upon the Common Law. The problem is when courts issue rulings such as the 9th's that say the RTKBA is a collective right or SCOTUS' creation of the "wall of separation of church and state." When they create things that directly contradict tradition and the wording of the Constitution or statute, they are leaving the Common Law and creating something else. I think most people would be hugely suprised to know just how little the law books actually contain in regards to tort claims, heh.
Link Posted: 10/6/2007 12:10:44 PM EST

Originally Posted By 103:

Originally Posted By badfish274:

Originally Posted By Dave_A:

Originally Posted By Paveway_:
It leaves room for common law to be made from the bench.

It allows the courts to follow the local customs of the community and gives judical flexibility.


And the above is one of most Conservatives primary complaints about the government for the past 30-50 years... The making of law from the bench...



Thats because conservative commentators have been really good at convincing the masses that judges don't make law, when in fact thats exactly what the system is set up to do.


The problem is not the Common Law. Our entire legal system rests upon the Common Law. The problem is when courts issue rulings such as the 9th's that say the RTKBA is a collective right or SCOTUS' creation of the "wall of separation of church and state." When they create things that directly contradict tradition and the wording of the Constitution or statute, they are leaving the Common Law and creating something else. I think most people would be hugely suprised to know just how little the law books actually contain in regards to tort claims, heh.


The problem is with interpretation of the constitution, not "making law from the bench".
Link Posted: 10/6/2007 12:17:56 PM EST

Originally Posted By badfish274:

Originally Posted By 103:

Originally Posted By badfish274:

Originally Posted By Dave_A:

Originally Posted By Paveway_:
It leaves room for common law to be made from the bench.

It allows the courts to follow the local customs of the community and gives judical flexibility.


And the above is one of most Conservatives primary complaints about the government for the past 30-50 years... The making of law from the bench...



Thats because conservative commentators have been really good at convincing the masses that judges don't make law, when in fact thats exactly what the system is set up to do.


The problem is not the Common Law. Our entire legal system rests upon the Common Law. The problem is when courts issue rulings such as the 9th's that say the RTKBA is a collective right or SCOTUS' creation of the "wall of separation of church and state." When they create things that directly contradict tradition and the wording of the Constitution or statute, they are leaving the Common Law and creating something else. I think most people would be hugely suprised to know just how little the law books actually contain in regards to tort claims, heh.


The problem is with interpretation of the constitution, not "making law from the bench".


I agree to a point. Often courts will make law where statute already exists. THAT is what I take issue with. The courts are supposed to create law where no law already exists. And it is also distressing when courts rule on Common Law issues but depart from the Common Law in the process. The point of the Common Law is to create law where statute does not exist. When a court alters statute or creates law in the place of existing statute, that is when I take issue.
Link Posted: 10/6/2007 12:23:40 PM EST

Originally Posted By 103:

Originally Posted By badfish274:

Originally Posted By 103:

Originally Posted By badfish274:

Originally Posted By Dave_A:

Originally Posted By Paveway_:
It leaves room for common law to be made from the bench.

It allows the courts to follow the local customs of the community and gives judical flexibility.


And the above is one of most Conservatives primary complaints about the government for the past 30-50 years... The making of law from the bench...



Thats because conservative commentators have been really good at convincing the masses that judges don't make law, when in fact thats exactly what the system is set up to do.


The problem is not the Common Law. Our entire legal system rests upon the Common Law. The problem is when courts issue rulings such as the 9th's that say the RTKBA is a collective right or SCOTUS' creation of the "wall of separation of church and state." When they create things that directly contradict tradition and the wording of the Constitution or statute, they are leaving the Common Law and creating something else. I think most people would be hugely suprised to know just how little the law books actually contain in regards to tort claims, heh.


The problem is with interpretation of the constitution, not "making law from the bench".


I agree to a point. Often courts will make law where statute already exists. THAT is what I take issue with. The courts are supposed to create law where no law already exists. And it is also distressing when courts rule on Common Law issues but depart from the Common Law in the process. The point of the Common Law is to create law where statute does not exist. When a court alters statute or creates law in the place of existing statute, that is when I take issue.

Example?
Link Posted: 10/6/2007 12:47:38 PM EST

Originally Posted By Bloencustoms:
I wonder then, if the 9th could not be used to counter the argument that people don't have the right to drive on public roads. You often hear it called a "privelege" and then they mention the fact that there is nothin in the Constitution about a right to drive.

Would the 9th cover this?


That's just it - there's no way to know. Any right you could think up, the 9th could be said to support. Does it support the right to Abortion? The Right to Housing? Right to Food? Right to Healthcare? Right to a gun-free society? Right to a job? Who knows?

I think the 9th amendment was just a feel-good measure for the 18th century. Some of the founders did not want a bill of rights, because they felt that it would imply that those were the only rights to be protected. So they put that in one of the amendments - that this enumeration of rights does not deny other rights. But how could it ever be used? It could be interpreted as anywhere from practically meaningless to making a Judge into a black-robed King.

Link Posted: 10/6/2007 12:52:53 PM EST

Originally Posted By badfish274:

Originally Posted By 103:

Originally Posted By badfish274:

Originally Posted By 103:

Originally Posted By badfish274:

Originally Posted By Dave_A:

Originally Posted By Paveway_:
It leaves room for common law to be made from the bench.

It allows the courts to follow the local customs of the community and gives judical flexibility.


And the above is one of most Conservatives primary complaints about the government for the past 30-50 years... The making of law from the bench...



Thats because conservative commentators have been really good at convincing the masses that judges don't make law, when in fact thats exactly what the system is set up to do.


The problem is not the Common Law. Our entire legal system rests upon the Common Law. The problem is when courts issue rulings such as the 9th's that say the RTKBA is a collective right or SCOTUS' creation of the "wall of separation of church and state." When they create things that directly contradict tradition and the wording of the Constitution or statute, they are leaving the Common Law and creating something else. I think most people would be hugely suprised to know just how little the law books actually contain in regards to tort claims, heh.


The problem is with interpretation of the constitution, not "making law from the bench".


I agree to a point. Often courts will make law where statute already exists. THAT is what I take issue with. The courts are supposed to create law where no law already exists. And it is also distressing when courts rule on Common Law issues but depart from the Common Law in the process. The point of the Common Law is to create law where statute does not exist. When a court alters statute or creates law in the place of existing statute, that is when I take issue.

Example?


There is quite a bit of it in products liability and medical malpractice caselaw coming out of California. And then it is adopted in various other jurisdictions.

Look to the end of the "every dog gets one bite" laws as courts rule against such statutory regulation of tort actions. Honestly can't come up with much more at the moment.
Link Posted: 10/6/2007 12:54:39 PM EST

Originally Posted By mace:

Originally Posted By Bloencustoms:
I wonder then, if the 9th could not be used to counter the argument that people don't have the right to drive on public roads. You often hear it called a "privelege" and then they mention the fact that there is nothin in the Constitution about a right to drive.

Would the 9th cover this?


That's just it - there's no way to know. Any right you could think up, the 9th could be said to support. Does it support the right to Abortion? The Right to Housing? Right to Food? Right to Healthcare? Right to a gun-free society? Right to a job? Who knows?

I think the 9th amendment was just a feel-good measure for the 18th century. Some of the founders did not want a bill of rights, because they felt that it would imply that those were the only rights to be protected. So they put that in one of the amendments - that this enumeration of rights does not deny other rights. But how could it ever be used? It could be interpreted as anywhere from practically meaningless to making a Judge into a black-robed King.



I disagree. I believe the point of the 9th was to allow the states to protect what rights they deemed (through the vote of the people idealy) necessary to protect. It wasn't a feel good measure, it was a very necessary clause preventing (in part) the total neutering of state power.
Link Posted: 10/6/2007 1:04:34 PM EST
It's pretty clear to me. It says

"We wrote down what some of your rights are but we didn't write them all down. You were born with your rights dummy and there were too many too list. Just because we left it out, doesn't mean it isn't a right."
Link Posted: 10/6/2007 1:29:24 PM EST

Originally Posted By Dave_A:
This, personally is what concerns me about the Ammendment, as it seems to provide a legal 'out' for anything to become a 'right'...


It's "Amendment" btw.

Here's the bottom line. Government is granted powers (by the people). People in turn have innate rights. The fact that a right is not listed in the BoR does not mean it does not exist. That's the meaning of the 9th. Not creating "rights" out of thin air, but defining the limitations of the government to restrict your rights based on their absence from the Constitution.

For a very contrived example, lets say I like sugar with my coffee. Tomorrow, the Federal government bans sugar with coffee. The resident government apologists would say "well, there's no right to sugar with your coffee listed in the Constitution". That, my friend, is what the 9th is intended to head off.
Link Posted: 10/6/2007 1:55:49 PM EST
My understanding of the 9th may be too "simple" , as I have not studied much of the background that goes along with the Constitution , but here goes.....

It sounds , to me , like the 9th amendment , while it could certainly be argued to apply to an endless list of nonenumerated rights , would best fit in the context of protecting one's property rights against those who would point to the BoR and say "I can do XXX wherever I want , because it's my right."
Examples would be ;

If a person is on your land or in your home , and is speaking about things you do not wish to hear , his 1st amendment right to free speech does not outweigh your right to have him leave your property.

If , for some reason , you do not want people coming into your home while armed , and a person attempts to enter your home while armed , his 2nd amendment right does not force you to allow him to enter.

I can imagine similar examples regarding the other rights protected by the BoR , such as peaceful assembly , religion , etc.

BTW , if my asessment is totally off-base , someone please let me know. I'd like to learn something new today.
Link Posted: 10/6/2007 2:03:59 PM EST

Originally Posted By Drakich:

Originally Posted By Dave_A:
This, personally is what concerns me about the Ammendment, as it seems to provide a legal 'out' for anything to become a 'right'...


It's "Amendment" btw.

Here's the bottom line. Government is granted powers (by the people). People in turn have innate rights. The fact that a right is not listed in the BoR does not mean it does not exist. That's the meaning of the 9th. Not creating "rights" out of thin air, but defining the limitations of the government to restrict your rights based on their absence from the Constitution.

For a very contrived example, lets say I like sugar with my coffee. Tomorrow, the Federal government bans sugar with coffee. The resident government apologists would say "well, there's no right to sugar with your coffee listed in the Constitution". That, my friend, is what the 9th is intended to head off.


Then there should be no laws what so ever by your logic.
Link Posted: 10/6/2007 2:10:33 PM EST

Originally Posted By 103:
The Federal Constitution was meant only to enumerate and limit powers of the national government.


The federal government, which would not exist if there were no constitution, has only those powers specifically granted to it in the Constitution. At least that was the law until SCOTUS rolled over and showed Roosevelt its belly in the mid - late 1930s.
Link Posted: 10/6/2007 2:16:57 PM EST

Originally Posted By Paveway_:

Originally Posted By Drakich:

Originally Posted By Dave_A:
This, personally is what concerns me about the Ammendment, as it seems to provide a legal 'out' for anything to become a 'right'...


It's "Amendment" btw.

Here's the bottom line. Government is granted powers (by the people). People in turn have innate rights. The fact that a right is not listed in the BoR does not mean it does not exist. That's the meaning of the 9th. Not creating "rights" out of thin air, but defining the limitations of the government to restrict your rights based on their absence from the Constitution.

For a very contrived example, lets say I like sugar with my coffee. Tomorrow, the Federal government bans sugar with coffee. The resident government apologists would say "well, there's no right to sugar with your coffee listed in the Constitution". That, my friend, is what the 9th is intended to head off.


Then there should be no laws what so ever by your logic.


And by yours, the government has the legitimate power to prohibit whatever it finds noxious. The substantive question, I think, is whether Jefferson could do it. Barring a contrary constitutional pronouncement, if Jefferson had the right to do it, I have the right to it.

You don't have a problem with Jefferson's lifestyle (subject to the noted constitutional limitations), do you?
Link Posted: 10/6/2007 2:19:39 PM EST

Originally Posted By Paveway_:

Originally Posted By Drakich:

Originally Posted By Dave_A:
This, personally is what concerns me about the Ammendment, as it seems to provide a legal 'out' for anything to become a 'right'...


It's "Amendment" btw.

Here's the bottom line. Government is granted powers (by the people). People in turn have innate rights. The fact that a right is not listed in the BoR does not mean it does not exist. That's the meaning of the 9th. Not creating "rights" out of thin air, but defining the limitations of the government to restrict your rights based on their absence from the Constitution.

For a very contrived example, lets say I like sugar with my coffee. Tomorrow, the Federal government bans sugar with coffee. The resident government apologists would say "well, there's no right to sugar with your coffee listed in the Constitution". That, my friend, is what the 9th is intended to head off.


Then there should be no laws what so ever by your logic.


THAT logic doesn't make sense.

The government IS granted certain powers and authority, but not many.

It's not an "EITHER/OR" thing.

There's a balance enumerated BY the constitution and bill of rights.
Link Posted: 10/6/2007 4:37:09 PM EST

Originally Posted By Paveway_:
Then there should be no laws what so ever by your logic.


Well, if that's what you think my logic means, you've got some thinking problems.

Inherent in the classical liberal view of things is the idea that government power originates from the people, not from the guns in the hands of the king's men. In short, people give up some freedoms in exchange for the benefits of government. They do not give up all rights, nor can they give up natural rights.

Additionally, the Constitution lays out what the enumerated powers of the Federal government are. The way things SHOULD be, is if it ain't on the list, then the Federal government shouldn't be sticking it's nose in it without an Amendment. This is the way prohibition was handled (ie, properly). But not the current imperial FDA which is acting, like 99% of what the Federal government does today, as an overarching extension of the Commerce Clause.

Now, take together, what the above means is that there really only are a few things that the Federal government is authorized for by the Constitution. Everything else is basically illegal when done by the Federal government (but, then again, who's gonna arrest them...the Legislative, Judicial, and Executive branches have worked hand in hand for 120 years to expand Federal power). But it may be fair game for the states.

Anyway, it doesn't really matter. The Constitution is irrelevant aside from paying lip service these days. I'm talking about the way things should be if anyone understood and really gave a shit anymore. Obviously, this isn't the way things are given the level of ignorance even on this board, even with folks that are either serving or have served in the past and actually given an oath to defend the damn thing. At this point, we might as well be arguing about how many angels can dance on the head of a pin.
Link Posted: 10/7/2007 10:29:03 AM EST

Originally Posted By Paveway_:

Originally Posted By Drakich:

Originally Posted By Dave_A:
This, personally is what concerns me about the Ammendment, as it seems to provide a legal 'out' for anything to become a 'right'...


It's "Amendment" btw.

Here's the bottom line. Government is granted powers (by the people). People in turn have innate rights. The fact that a right is not listed in the BoR does not mean it does not exist. That's the meaning of the 9th. Not creating "rights" out of thin air, but defining the limitations of the government to restrict your rights based on their absence from the Constitution.

For a very contrived example, lets say I like sugar with my coffee. Tomorrow, the Federal government bans sugar with coffee. The resident government apologists would say "well, there's no right to sugar with your coffee listed in the Constitution". That, my friend, is what the 9th is intended to head off.


Then there should be no laws what so ever by your logic.


Link Posted: 10/8/2007 8:37:44 AM EST
Bump so the resident government's rights folks can chime in about how the 9th and 10th Amendments are meaningless and how the Federal government can do anything it wants.

Dave?
Paveway?
Link Posted: 10/8/2007 8:50:06 AM EST

Originally Posted By Drakich:
Bump so the resident government's rights folks can chime in about how the 9th and 10th Amendments are meaningless and how the Federal government can do anything it wants.

Dave?
Paveway?


I think Dave finds the Army model of structure to provide all the liberty and freedom he needs. It creates a lot of order and certainty. If you can subordinate yourself. Its something I sometimes struggle with.
Link Posted: 10/8/2007 11:00:23 AM EST

Originally Posted By 103:

Originally Posted By badfish274:

Originally Posted By 103:

Originally Posted By badfish274:

Originally Posted By 103:

Originally Posted By badfish274:

Originally Posted By Dave_A:

Originally Posted By Paveway_:
It leaves room for common law to be made from the bench.

It allows the courts to follow the local customs of the community and gives judical flexibility.


And the above is one of most Conservatives primary complaints about the government for the past 30-50 years... The making of law from the bench...



Thats because conservative commentators have been really good at convincing the masses that judges don't make law, when in fact thats exactly what the system is set up to do.


The problem is not the Common Law. Our entire legal system rests upon the Common Law. The problem is when courts issue rulings such as the 9th's that say the RTKBA is a collective right or SCOTUS' creation of the "wall of separation of church and state." When they create things that directly contradict tradition and the wording of the Constitution or statute, they are leaving the Common Law and creating something else. I think most people would be hugely suprised to know just how little the law books actually contain in regards to tort claims, heh.


The problem is with interpretation of the constitution, not "making law from the bench".


I agree to a point. Often courts will make law where statute already exists. THAT is what I take issue with. The courts are supposed to create law where no law already exists. And it is also distressing when courts rule on Common Law issues but depart from the Common Law in the process. The point of the Common Law is to create law where statute does not exist. When a court alters statute or creates law in the place of existing statute, that is when I take issue.

Example?


There is quite a bit of it in products liability and medical malpractice caselaw coming out of California. And then it is adopted in various other jurisdictions.

Look to the end of the "every dog gets one bite" laws as courts rule against such statutory regulation of tort actions. Honestly can't come up with much more at the moment.

IMHO a better example -- much clearer, certainly -- is the "quota" system of Affirmative Action.

At the time the AA law was passed, back under Johnson, Congressional debate made it very clear that the law NEVER would create a quota system. As soon as the law passed, the courts took it and said, "er, well, there's no way to implement this other than a quota system, so guess what, we're imposing a quota system."

BTW, the court system is NOT intended to "make law". Constitutionally speaking, the courts are only allowed to INTERPRET laws passed by Congress, within the boundaries set by the languages of the laws. Unfortunately, the courts have done an end-run around that, and Congress and the executive have done nothing to rein the courts in.
Link Posted: 10/8/2007 11:03:55 AM EST
tag for later.
Link Posted: 10/8/2007 11:05:57 AM EST

Originally Posted By Drakich:
Bump so the resident government's rights folks can chime in about how the 9th and 10th Amendments are meaningless and how the Federal government can do anything it wants.

Dave?
Paveway?


I didn't say the 9A and 10A are meaning less. Some people are asserting everyone has a right to do everything.

If that is there assertion, how can the governmet make any laws? Seriously if you believe the 9A and 10A grants rights to everyone to do everything they want, how can the government have any laws? Why have a legal code beyond the BOR?
Link Posted: 10/8/2007 11:09:03 AM EST

Originally Posted By Paveway_:

Originally Posted By Drakich:
Bump so the resident government's rights folks can chime in about how the 9th and 10th Amendments are meaningless and how the Federal government can do anything it wants.

Dave?
Paveway?


I didn't say the 9A and 10A are meaning less. Some people are asserting everyone has a right to do everything.

If that is there assertion, how can the governmet make any laws? Seriously if you believe the 9A and 10A grants rights to everyone to do everything they want, how can the government have any laws? Why have a legal code beyond the BOR?


That is exactly what I was getting at as well...

Which is why I started this thread...

For every 'right' you wish you had, there is another citizen who wants a 'right' that contrabands the one you want, or who wants a 'right' to something you own...

Link Posted: 10/8/2007 2:18:40 PM EST

Originally Posted By Paveway_:
I didn't say the 9A and 10A are meaning less. Some people are asserting everyone has a right to do everything.


Who exactly is this person? You certainly accused me of doing so, but this is no more than a straw man argument. No is asserting that the 9th and 10th Amendments allow anyone to do anything.

They do, however, legally proscribe the Federal government from outlawing or regulating activity it doesn't like which doesn't fall under it's enumerated powers.


Seriously if you believe the 9A and 10A grants rights to everyone to do everything they want, how can the government have any laws? Why have a legal code beyond the BOR?


Sigh. That's just a dumb series of sentences. No one besides you and Dave are claiming any such thing.

The Federal government can pass laws within it's enumerated powers. It's not supposed to pass laws or regulate activity outside of it's enumerated powers. That's all. Rather than bound rights in tightly, the Framers tried to bound in the scope of the Federal government in tightly, devolving the majority of the obligation of government to the states and citizens. It ain't rocket science.

The problem is, the King's men such as yourself and Dave seem to think that EVERYTHING falls within the enumerated powers of the United States and the King's law is apparently whatever the King says it is. The 9th and 10th Amendments were put in place to keep people from thinking that because it isn't listed in the Bill of Rights, you have no right to it. One of Murphy's laws should be "make something idiot proof and the world invents a better idiot" because it's clear that point is ignored and or misunderstood. Like I said before, didn't you take an oath on this stuff? Or is the Constitution what your CO tells you it is?

A few philosophical questions for you:

To what degree do you think the Federal government has the right to dictate the terms of your life? Is it right and proper that they might be able to tell you what you can read, what you can eat, what you can drink, when you can drink it, who you can and can't associate with, and what you spend your money on (that is, if they deign to let you have any after they take their taxes)?

I know it's a highly rhetorical question. Let me clarify. You probably agree that the government can legally prevent you from injesting "controlled substances" (ie, illegal drugs).

What about tobacco?

What about alcohol?

What about wheat or wheat products?

What sweets?

Can the Federal government pass a law regulating the time of day that you can sleep and work?

If you agree to some but not all, what is the dileneation in enumerated powers that allows the Federal government to ban or regulate one, but not all of them?

If you think that the government can ban or regulate all of them, then you essentially believe in unbounded Federal power. And if that's the case, you can hardly call yourself faithful to any oath you took to defend the Constitution.
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