The Ninth Amendment

7/23/02 | Doug Loss

[Doug Loss]

The ninth amendment to the US Constitution reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." While I don't agree with SCOTUS decisions like Roe v. Wade, why does the court base rulings where it cobbles up new rights and entitlements on such flimsy concepts as "penumbras" and "emanations" rather than on the clearly-stated one in the ninth amendment? It seems to me that if you want to assert a right to privacy or something else not specifically mentioned in the Bill of Rights, this is the Constitutionally correct branch from which to hang it. Comments?

[general_re]

A natural right, when exercised, will not interfere with the rights of another person.

And you can guarantee that no judge will ever find "rights" in excess of that under the Ninth Amendment?

I'm still interested in learning where you got that "wish list" reference of yours. That is the most bizarre thing I've read in a while.

Really? It's not bizarre at all. Let activist judges with a social agenda at the 9'th and 14'th, and I think you'll see how they use it to discover all sorts of new "rights".

I referred to Patterson's book "The Forgotten Ninth Amendment" before - if you're not familiar with it, it's worth checking out to see what I'm talking about.

[billbears]

backward one like Jefferson whose idea of a nation of farmers was not only impossible but would have been a disaster in every conceivable way if implemented

Would this include the non-farmers such as Burr, Trumbull, Pickering, and the rest of the Federalists who wanted to leave the union as early as 1803? In their mercantilistic empires they must have dreamed of at night? Farmers.... that's what we and men like Jefferson are to you, we think differently therefore we must somehow be lesser than such 'learned' men as Hamilton.

[Baseballguy]

Most could not vote and when they did it was only as directed by their betters.

Did not the Democrats pile people in buses and drive them to vote?

[dixie sass]

ping

[4CJ]

States Rights Bump!

There was a time in our past that the states could say "No" to the gorilla. Now it's enforced at the point of a gun.

[tpaine]

The USSC has no power to 'ram' any rights down throats . States can, and should, fight their case, and if an obviously unconstitutional decision is made against them, use civil disobedience methods to force the issue.

That's been tried before. It generally doesn't work out well for the states that attempt it.

No, I don't think it has, primarily because these states have no real basis to violate individual rights, and acknowlege that fact in their political decisions. - IE, they can't get voting citizens to support laws that violate rights.

The problem is that if the scope of the Ninth Amendment is potentially radically expanded by the 14'th, the Tenth is radically curtailed by it. There are lots of powers the states no longer have by virtue of the 14'th Amendment,

They never have had the power to violate individual rights.

chief among them the fact that they no longer have (virtually) any powers that restrict an individual's rights under the Bill of Rights.

Exactly! -- Why do you think a state SHOULD have such powers? Our constitution was formed 'to secure the blessings of liberty', -- and life, and property.

You disagree with some of the personal freedoms guaranteed by the 14th, so you wish to blame the constitutional process it outlines.
- There is nothing 'wrong' with the 14th, or the constitution.
- While most 'everything' is wrong with our political processes.

[tophat9000]

A natural right, when exercised, will not interfere with the rights of another person. One has the right, for instance, to defend his life, but not to harm another person who is not threatening him.

Well stated

[general_re]

No, I don't think it has, primarily because these states have no real basis to violate individual rights, and acknowlege that fact in their political decisions. - IE, they can't get voting citizens to support laws that violate rights.

Really? Anyone remember Little Rock? Brown v. Board? How successful was Orval Faubus when it came to defying the federal government? For that matter, how successful was Jefferson Davis?

They never have had the power to violate individual rights.

The states? How applicable was the Sixth Amendment right to counsel before the 14'th Amendment and Gideon? If a person has a right to counsel, but is denied that by the state, surely that right is being violated, isn't it?

Exactly! -- Why do you think a state SHOULD have such powers?

What makes you think that I DO think that? ;)

You disagree with some of the personal freedoms guaranteed by the 14th, so you wish to blame the constitutional process it outlines.

I do? I didn't think so. I merely point out that if the 9'th is revived, there is a significant danger that it will be abused by activist judges, under the auspices of incorporation via the 14'th. There's nothing wrong with either amendment in isolation, IMO, but when you put the two together, it becomes a very powerful and very dangerous way for people with a particular agenda to impose their values on the nation as a whole.

[Melas]

see the US government establishing in the constitution that the federal government will allow a "Republican" form of government. Maybe I misunderstand the intent here, but I see this as a guarantee to the states, not a requirement of them. It even uses the words "guarantee to" not "require of", which is what I would expect if your argument were correct You're confusing yourself unnecessarily. Think for a moment, how can you have a theocracy, if you have to let your citizens vote for their representatives? Which you must, in order to guarantee the other states a Republican form of government. Since a Republican form of government is contingent upon all states in the untion being Republican, all states must be Republican. What an interesting theocracy it would be if the high priest got to make all the laws, but had to let everyone over 18 (as prescribed by the constitution: 15th, 19th, 24th, 26th Amendments) vote for federal office holders. Sorry, having fun poking holes in this. The truth is that Constitution was meant to apply to the states where applicable as well. It was never even dreamed of that a state could deny you the right to face your accusers, hold you without cause, be tried by a jury, or be deprived of life or liberty without due process.

[tpaine]

In other words, The 14th amendment did what our modern Liberals warn us about in school: amend the Bills of Rights and and we lost that protection from a tyrantical, central government.......So we only have right to bear arms now, because the members of Congress don't have the votes to pass gun removal.

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For all your admitted faults in writing, I agree with you, Bingley. Your thinking is sound, which is more than can be said of many who post here. -2dd -

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Perhaps you should both READ what is posted here.
The 14th removes none of the protections state have from feds. It only guarantees that individual constitutional rights will be honored by both state & federal government, as I said at #59:

The priviliges & immunities clause was being violated by states after the civil war, - [IE -- former slaves were being denied the right to own guns] - under the mistaken Marshal Court doctrine that the first ten amendments only limited the federal government.
The 14th was ratified to correct this flaw, and by further defining that the rights included those to 'life, liberty, or property', in effect expanded/defined the meaning of 'unenumerated rights' as per the 9th.

Thus, the 14th deprived states of only one 'power' they mistakenly thought they had. - That of ignoring the bill of rights.
--- States should be in the forefront of the battle to fight excess federal powers. Thay they are not is a failure of our political system. - Not of the constitution, - or of the 14th.

[stainlessbanner]

I can respect Hamilton's life, but differ with him on philosophical differences. However, Jefferson's life accomplishments were extraordinary:

1775 Elected to Continental Congress.
1776 Drafted Declaration of Independence. Elected to Virginia House of Delegates. Appointed to revise Virginia laws.
1777 Drafted Virginia Statute for Religious Freedom, passed by General Assembly in 1786.
1778 Drafted Bill for the More General Diffusion of Knowledge.
1779-81 Served as Governor of Virginia.
1783 Elected delegate to Congress.
1784-89 In France as Commissioner and Minister.
1787 Published Notes on the State of Virginia.
1790-93 Served as first United States Secretary of State.
1794 Began commercial manufacture of nails on Mulberry Row.
1797-1801 Served as United States Vice President.
1797-1815 Served as president of the American Philosophical Society.
1801-09 Served as United States President.
1803 Louisiana Purchase concluded. Lewis and Clark expedition launched.
1809 Retired from presidency and public life. Remodeling of Monticello and construction of dependencies largely completed. Vegetable garden platform completed.
1815 Sold 6,700-volume library to Congress.
1817 Cornerstone of Central College (later University of Virginia) laid.
1822-25 Monticello roof recovered with tin shingles.
1824 Historic reunion with the Marquis de Lafayette at Monticello.
1825 University of Virginia opened.
1826 Died at Monticello, July 4.

"The God who gave us life, gave us liberty at the same time."

-A Summary View of the Rights of British America, Thomas Jefferson

[stainlessbanner]

philosophical differences = philosphical ideas

[justshutupandtakeit]

Those who wanted to destroy the Union in 1803 where just as misdirected and foolish as those who wanted to leave it in 1861 however, those in 1803 had at least a plausible reason since Jefferson's embargo was destroying their economies while Lincoln had done nothing against the Slaveocracy. It was reacting to its delusions about what he would do.

I am not the one who made farmers into something they are not. That was Jefferson. His fantasy would have been a disaster to farmers and non-farmer alike. Hamilton understood that to have strong viable agriculture one must also have strong viable industry. Who was going to buy the farmers crops? Other farmers? Come on. Plus, Jefferson would have made the oceangoing carrying trade entirely in the ships of foreigners. He believed that a navy was an "aristocratic" institution (hilarious coming from the one true aristocrat of that time) and would lead to foreign involvements and war. Idiotic stuff but he was full of it.

Hamilton came from a lower social status than almost all farmers. However, he could easily see that a nation which did not allow a variety of jobs for the many talents of its citizens would not have a happy or productive citizenry.

BTW Burr was never a Federalist. In fact, he was a candidate who did receive federalist support in the NY governors election in 1804 because some of them believed he would lead the state out of the Union and into an alliance with N.E. Hamilton's opposition to him was one of the final straws which provoked the duel. H. feared Burr would use the office to provoke secession and he opposed that above all.

[tpaine]

There are lots of powers the states no longer have by virtue of the 14'th Amendment, chief among them the fact that they no longer have (virtually) any powers that restrict an individual's rights under the Bill of Rights. - G_RE

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Exactly! -- Why do you think a state SHOULD have such powers? - tpaine

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What makes you think that I DO think that? - G_RE

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Because you posted it, exactly as above.

[Frumious Bandersnatch]

I could go on and on about the achievements and life of Hamilton. He was a man of incomparable integrity and bravery neither of which can be said of Jefferson.

Now wait a sec.  I also have high regard for Hamilton.  But to defame Jefferson is out of line.  It wasn't, after all, Jefferson who turned the Society of St. Tammany's into a political organization.

[general_re]

There are lots of powers the states no longer have by virtue of the 14'th Amendment, chief among them the fact that they no longer have (virtually) any powers that restrict an individual's rights under the Bill of Rights.

Exactly! -- Why do you think a state SHOULD have such powers?

What makes you think that I DO think that?

Because you posted it, exactly as above.

Come on, man - you're better than that. How many times have I seen you complain when other people misinterpret your words.

Saying that states no longer have some power is really not the same as saying that they should have that power, is it? I'm saying that they used to be able to do lots of things that they can't now, and you're turning that around to mean that I think they should be able to do those things. It doesn't follow - you're reading things into it that aren't there...

[justshutupandtakeit]

Jefferson was the greatest rhetoritician of the Revolutionary era, an interesting furniture maker/inventor and an admirable architect but his political views after about 1790 were a disaster. His presidency was a miserable failure and was the recipient of incredible luck for its greatest accomplishment when Napoleon threw the Louisiana purchase into his lap. (He didn't even believe the constitution allowed the purchase and was going to propose a constitutional amendment until Madison and some of the realists told him to can it.) None of his writings on political philosophy come even close to those of Hamilton in depth and power. His view of the Reign of Terror was horrific in its support.

He was not the kindly, disinterested philosopher we are taught about in school but a double-dealing backbiter who shrank from open opposition to things preferring to manipulate from behind the scenes. Very ruthless and Machiavellian. He hired journalistic hacks to spread lies about H. and W. After the latter discovered some of the things J. was spreading about him he never spoke to him after leaving the Presidency. J. was attempting to undermine W.'s policies WHILE A MEMBER OF HIS CABINET.

Callender, one of the lying scumbags he hired as a political assassin, came back to bite him in the ass after J. stiffed him on a political reward. That is where the Hemings accusations came from- one of his own creatures.

I suspect your view of H.'s philosophy is based on the lies the Jeffersonians spread. Happily adopted by many of the left-wing historians who have dominated college history departments. Should you like to learn about the real man I will happily provide titles of biographers (not all who like Hamilton.)

Once an admirer of J. as I have discovered more and more about his life the less I admire him. This is the converse of learning about H.'s life. Ironically, J. only became president because H. had the federalists put him into the office rather than Burr when they were tied in 1800. But Burr he considered a "Cataline" while J. was a "temporizer" thus, less likely to disturb things. In fact, he made an arrangement with J. to put him into the presidency. J. promised not to change the Hamiltonian financial program which wasn't hard since he had seen its spectacular success and H. would convince a federalist to drop his support for Burr allowing J. to win the electoral college vote (on the 35th ballot.)

[justshutupandtakeit]

No, but I didn't claim he did. That was the work of Burr. Jefferson certainly profited from that change as did all the other Democratic politicians who followed. Tammaney was initially established to counter the influence of the "aristocratic" Society of the Cinncinnati so hated by Jefferson and others who did not fight during the Revolution.

As for integrity and bravery I stand by my comments which can be supported by examining his doubledealing and treachery while serving as SecState and governor of Va. He was almost impeached because of the latter role.

Much of my disdain for J. comes from knowledge of his campaign to destroy H. by any means necessary. If you still doubt this interpretation research the relation between W. and J. after W. found out what he had been spreading about him. And why he refused to see him or speak to him after leaving the presidency. And why Adams refused to communicate with him for about 20 yrs.

[justshutupandtakeit]

The more things change the more they remain the same.

[justshutupandtakeit]

You wouldn't know a point if you sat on it.