Posted on 11/20/2004 12:30:13 PM PST by forest
We've all heard about "taking the Fifth." Heck, we only need watch the bureaucrats testifying about their wrongdoings for instructions on how that works. They'll use their Fifth Amendment, and any trick they can think of, to keep from telling the truth, the whole truth and nothing but the truth.
Well, "taking the Fifth" is not just reserved for those in government. Citizens also (usually) have a right against self incrimination. In fact, American citizens can use a whole host of such "protections," if they learn to exert their Constitutional authority.
For instance, the Ninth Amendment states that:
"The enumeration in the Constitution of certain rights shall not be considered to deny or disparage others retained by the people."
That tells the central government that all rights belong to us, the people. It also implies that we can tell government to "kiss off" when they try to violate any of our rights or liberties the Constitution does not give government explicit authority to regulate.
So, when government says that we cannot encrypt our messages to others on the Internet, Constitutionally we could say, "tough cookies! I claim my Constitutional right to privacy under the Ninth Amendment to our Constitution." Or, when government demands that we have our papers in order to travel within our own country, we could say, "Buzz off! Our Constitution gives you no such authority to require that. Therefore, I take the Ninth, and do not choose to participate in your unconstitutional rule."
Silliness, you say? Not so. Somewhat impractical right now, but certainly not a bit silly.
At the very least, the Ninth Amendment acknowledges that there are some unenumerated rights retained by the people that are not mentioned within the Constitution. It does not, however, tell us what those rights are, or how to identify them. So, for some legal scholars, like Judge Robert Bork, it was as if a giant inkblot covered the words that would tell us what the Ninth Amendment means.
One of the few Supreme Court opinions mentioning the Ninth amendment is United Public Workers v. Mitchell (330 U.S. 75, 94-95 (1947)), which pertained to the Hatch Act. Therein, the Court said:
"We accept appellant's contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments [is] involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. Thus we have a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant under the First, Ninth, and Tenth Amendments."[1]
Later, the Ninth Amendment was mentioned by the Supreme Court in Griswold v. Connecticut (381 U.S. 479 (1965)). Therein, a statute prohibiting use of contraceptives was voided as an infringement of the right of marital privacy. Justice Douglas, writing the majority opinion, asserted that the:
"specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."
Which brings us to privacy. While privacy is nowhere mentioned in the Constitution, it is said to be one of the values served and protected by the First Amendment, through its protection of the right of association, and by the Third, the Fourth, and the Fifth Amendments as well. The Justice then went to the text of the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one amendment or a complex of amendments despite the absence of a specific reference. The concurring opinion of Justice Goldberg devoted several pages to the Amendment. Justice Goldberg, joined by the Chief Justice and Justice Brennan, said in part:
"The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. ...
"To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment. ...
"Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive."[2]
1. <http://laws.findlaw.com/US/330/75.html>
2. <http://laws.findlaw.com/US/381/479.html>
<http://www.gpoaccess.gov/constitution/html/amdt9.html>
<http://odur.let.rug.nl/~usa/P/jm4/speeches/amend.htm>
The Ninth tells government that all rights belong to us, the people.
"Our Constitution gives you no such authority to require that. Therefore, I take the Ninth, and do not choose to participate in your unconstitutional rule."
The Ninth Amendment says the Constitution does NOT list all our rights.
The United Public Workers and Griswold Scotus cases uphold the Ninth.
The "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."
Privacy is not mentioned, but is protected.
I am not aware of any case where the court ruled that some right, any right, was protected by the ninth. It's usually part of some existing, defined, right.
For example, in the above article, it mentioned the "right" to privacy was built up with pieces from the First, Third, Fourth, and the Fifth Amendments.
Just remember, the right to "choose, read: Abortion" can also eminate from the 9th A.
Unfortunately, you're right. I hate it, but you're right. Blackbird.
While it's so hard to pick just one, I'd have to say this has always been my favorite amendment.
Absolutely brilliant in it's simplicity. Blackbird.
I remember thinking then, the fallacy in the Act, is it requires taking from others to accomplish, and I as a Citizen have the Right under the same Amd to refuse to participate. I have lost that argument frequently. Something about, this is a Democracy, mob rule and all that. Blackbird shakes his head and spits.
I weep for our republic whenever I am reminded how trampled underfoot this simple, plainly-worded English phrase is.
Our country today resembles nothing even remotely approaching it, and we are the poorer for it.
"The concurring opinion of Justice Goldberg devoted several pages to the Amendment. Justice Goldberg, joined by the Chief Justice and Justice Brennan, said in part:
"The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. ..."
Any questions pertaining to the Second Amendment?
Abortion legislation is not a proper function of the federal government either pro or con. Except in places explicitly under federal jurisdiction, the criminal law is up to the states. Murder is not an area of competence of the COngress except on federal property.
Perhaps not even on Federal property -- but certainly the murder of Federal officers -- as in U.S vs McVeigh.
Remember that it took a State court case to try Nichols for the murder of the "ordinary" citizens (including Federal employees) who were killed in the Murrrah Federal Building (federal property)...
This is on top of the regulations shutting down any construction if some poor critter was seen on your property in the last 5 years or if you have a puddle from the rain around here rendering your plot - "protected wetlands".
I buy into that, but it's happened none the less. Blackbird.
In Roe v Wade, the Supreme Court majority used 14th Amendment has the constitutional basis for their decision.
Not the 9th Amendment.
The bottom line of Roe v Wade is that the a fetus is not a person with constitutional rights until it is "viable" to live outside a woman's body.
Up to that point, a fetus is considered nothing more than a cellular mass, which is part of woman's body, similar to her kidney, arm, or leg.
Abortion could be outlawed the day after Congress declares a fetus a human being from conception with all constitutional protections to life and liberty as any other human, citizen.
I have to. I am a rabid advocate that we citizens regularily exert our 9th amendment rights.
Let me give you my partial list of such rights:
--I will decide when to wear a seatbelt
--I will decide whether to ingest alchohol while I drive my auto
--I will decide on how much pain killer I will consume to relieve my back pain, arthritis pain, etc. (a la Rush Limbaugh)
--I will decide what chemicals I will ingest, how much I will ingest, and for what reason: medical or recreational
--just as I can love, I can hate.
--I decide who I am going to have a sexual relationship with and whether I will asked to be paid for it.
--as a business owner either a sole proprietor or stockholder, I will decide who I will employ or not employ for any reason I determine: age, race, gender, sexual orientation, religious beliefs, overall health, etc. I will also pay employees the amount I wish to pay or offer medical insurance to those I wish to offer it to.
--as a restaurant owner, I will serve only those individuals I wish to serve for my reasons only.
--as a business owner I will decide if, where, and when any one can smoke tobacco in my buildings.
--I will decide what photos of adults clothed or unclothed I will look at
--I will decide whether I educate my children or not.
--I will decide whether I will educate my children in a government school or in my home.
--I will decide if I wish to die.
and so on.
...and so on...infinitum! The 9th was intended to keep the do gooders and the statist among us at bay. Blackbird.
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