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>
Right, like the right to health care, a college education, a 3000 sq ft house and a Cadillac in every driveway. The ninth amendment was originally a check on the federal governments powers, nothing more, nothing less.
I am assuming your are trying to make the point that if unenumerated rights are acknowledged by the 9th amendment, that citizens and politicians will eventually "expand" those unenumerated rights to the items you listed above, at the cost to the taxpayer
I think you are confusing inalienable rights with politically granted entitlements.
We citizens have the 9th amendment right "retained by the people" to purchase health care, college education, a 3,000 sqft house and Cadillac without our government denying or disparaging that right. If it is offered by private business, for instance health care, HillaryCare cannot deny or disparage our right to forgo HillaryCare and purchase private health care.
We citizens also have the right to elect representatives who will tax and fund the purchase of those same items if we citizens wish to make them entitlements.
I would never politically support such an entitlement but Congress has the power to tax and spend to satisfy our whims.
You would probably find that even if your rights in those regards *are* protected by the 9th Amendment, it only protects you from persecution by the Feddle Gummint - it doesn't guarantee that individual States can't set about persecuting you apace.
Right! I have a right to achieve every bit of that and more, without you or anyone in government getting in the way of it, sucks huh!?
The ninth amendment was originally a check on the federal governments powers, nothing more, nothing less.
Glad you agree! Blackbird.
Your ancestral fellow citizens right after the war of northern aggression against southern states, rendered the 10th amendment superfluous when the 14th amendment was ratified.
Amendment 14
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.
This has been the mechanism for the judiciary to expand federal jurisdiction within the borders of sovereign states.
No, I am not confused at all. Rights are what the SCOTUS says they are and if they decide the health care is a right by interpreting the Ninth Amendment broadly, then you get the bill for that right.
Conversely when SCOTUS decided that unborn babies do not have the unquestionable inalienable right of life, they declare it legal to kill babies on the way out.
Understand now?
No, what sucks is folks who give license to Federal Courts to to find emanations in penumbras. Like you.
Glad you agree! Blackbird.
Sadly, you don't.
What's so hard to comprehend in this statement? Is it the same as, "...shall not be infringed." ??? Blackbird.
The statement on its own is, as Bork says, an inkblot.
To understand the statement is to understand the tension between the federalists and the anti-federalists or more precisely those who would choose to vest supreme power in the federal government or those who believe that government closest to the people is the best government.
I fall in the second category. I don't want 9 supreme court justices in DC dictating to government closest to the people.
>>"Federal territorial law is evidenced by the Executive Branch's Admiralty flag (a federal flag with a gold or yellow fringe on it) flying in schools, offices and courtrooms."<<
http://www.freerepublic.com/focus/news/1279555/posts?page=1
>>There are many reasons why I do not like the 14th Amendment. The first is that is was never ratified!<<
"I cannot believe that any court in full possession of all its faculties, would ever rule that the (14th) Amendment was properly approved and adopted." State v. Phillips, 540 P.2d. 936; Dyett v. Turner, 439 P.2d. 266. (The court in this case was the Utah Supreme Court.)
http://www.freerepublic.com/focus/news/1279555/posts?page=1
:...Just remember, the right to "choose, read: Abortion" can also eminate from the 9th A..."
The distinction being that abortion infringes on another's right, the right to life.
No one has the right to infringe on anyone else's rights...that's where it stops.
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