The Ninth Amendment

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?

For the purposes of apportioning the House of Representatives. This has nothing to do with the humanity, or lack thereof, of the blacks.

Makes no difference. They were not legally a whole person - for whatever reason, it doesn't matter. See, they just make it up as they go along.

If I can "legally" possess marijuana in one State(and considering this can not be regulated by the feds, but the power was given to each of the states to determine this), then I would be entitled to that "priveledge or immunity" in all states.

Actually, I think you have it reversed. A state could not make it illegal for residents of other states to possess marijuana while within that state's boundaries while making it legal for its own residents.

Would a strict reading of that not imply uniform laws throughout the States would exist de facto? If I can "legally" possess marijuana in one State(and considering this can not be regulated by the feds, but the power was given to each of the states to determine this), then I would be entitled to that "priveledge or immunity" in all states. I do not see any room to argue about this. If I am "immune" from prosecution in California, then Florida can not prosecute me either, because I would be being denied that immunity.

No, that's not what that clause means. It does not allow one state to overturn the laws of all other states. "Priviliges and immunities of citizens" refer to those benefits that are normally understood to apply to citizens by virtue of their being citizens. These include the right to own land, to bring suit before a court, the power of arrest, etc.

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.

The obvious (and wrong!) conclusion is that 3/5 of all other persons meant slaves, and therefore the founding fathers thought blacks were only 3/5 human.

The careful reader, though, looks at the paragraph as a whole: what are the founding fathers trying to accomplish here? They were careful not to say that "negros" counted 3/5s of a person, but rather, all "non-free" people were 3/5th of a person. Why? This is used to determine representation in Congress--the 3/5s clause, although widely mis-interpreted as being some "anti-black" sentiment by the founding fathers, was a way for the Northern states to punish the Southern states by reducing their numbers in the legislature, so long as they continued to have slavery in the South. By the Southern states freeing their slaves, their population would increase, as determined by the census, and they would be on equal footing with the Northern states in terms of representation.

Not only did the founding fathers view blacks as fully human, they incorporated a punishment to slave holding states within the Constitution.

That is definitely true under the reading, but the reverse is also true.

"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States"

Maybe I am reading this differently. If I live in "each State" which would mean any State, then I would be entitled to the priveledges and immunities of citizens in any other State. A state can not make something a crime which is solely dependent upon the "offender" simply possessing and object or engaging in an activity while being located in a specific geographic area. There was much discussion of this concept in early America. To not respect this, would mean that all "travelers" would have to know the laws of anywhere they pass through, and could be incarcerated for simply doing something that was fine and dandy where they came from.

Actually, it's the 14th amendment that's best left dead - or at least the self-serving federal interpretation of it. We'll keep the 9th, thank you very much.

Can't have both. The problem is that incorporation is not really much of a stretch in light of Section 1 of the 14'th - people may disagree, but the case for incorporation is pretty strong, IMO. And that renders the 9'th to be a very dangerous, very broad concept. Anything becomes a right under the 9'th Amendment, if you want - gay marriage, child porn, whatever.

I suppose you could try to repeal the 14'th, though. Good luck ;)

>Article IV, section 4, "The United
>States shall guarantee to
>every State in this Union a
>Republican Form of Government..."

Still don't see how this debunks my argument, I think you have misinterpreted the clause.

I 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.

. "Priviliges and immunities of citizens" refer to those benefits that are normally understood to apply to citizens by virtue of their being citizens. These include the right to own land, to bring suit before a court, the power of arrest, etc.

I would entertain that notion. But, we have this notion to deal with. The Constitution limits what the Feds can do. Smoe people say that per the 9th and 10th, the States can regulate(meaning they can have the power to regulate) anything no specifically denied to it by the Constitution. The State's powers are spelled out in the State Constitution. A state could make it illegal to wear red shoes. I as a traveler from another state which has no such laws, passess through such a state and am arrested. Does anyone really think that defines a free country? First of all, that would impede "interstate commerse". See, that is actually a rational argument for the Feds trumping any such state laws, which based upon this interpretation of the 9th and 10th, would be fully within the States power to pass such laws.

There was much discussion of this concept in early America. To not respect this, would mean that all "travelers" would have to know the laws of anywhere they pass through, and could be incarcerated for simply doing something that was fine and dandy where they came from.

Do you have links for this? I think that discussion might have had more to do with the commerce clause thatn the privileges&immunities clause, but I'd be interested in seeing what they had to say.

The 9'th Amendment is a dead letter because it's a wish-list. How do you determine what is and isn't a right under the 9'th Amendment?

Justice Scalia has said exactly that-- he refuses to consider the 9th Amendment in any case because he has no basis, other than his own preferences, to decide which rights it protects. Chief Justice Burger once tried, in a concurring opinion, to list the rights he thought the 9th Amendment protects-- IIRC, he mentioned the right to travel from state to state, the right of a criminal defendant to be presumed innocent, and a few others.

Maybe I am reading this differently. If I live in "each State" which would mean any State, then I would be entitled to the priveledges and immunities of citizens in any other State.

I think that reading is not accurate, as it would be a direct violation of the concept of states rights.

A state can not make something a crime which is solely dependent upon the "offender" simply possessing and object or engaging in an activity while being located in a specific geographic area.

They do it all the time. Obtain a one-ounce bag of pot in Colorado, get stopped and it is a summary offense. Now, drive with that bag of pot to Arizona, and you can get thrown in jail.

Once again, that happens all the time.

Chief Justice Burger once tried, in a concurring opinion, to list the rights he thought the 9th Amendment protects-- IIRC, he mentioned the right to travel from state to state, the right of a criminal defendant to be presumed innocent, and a few others.

That's interesting - do you recall the case where Burger said that? That would make two cases where the 9'th is mentioned, since the only one I can think of off the top of my head is Goldberg's concurrence in Griswold...

They do it all the time.

Sure they do - I do not deny that. But they do it under the "color of law". Its the whim of man, nothing more. It does not respect individual rights; it supports whatever a group of people who vote someone into office, gain favor with and bribe them, want. This is not a concept of a "free country". One's "freedom" does not entail the right to determine what others do.

There are many "powers" that no level of government legitimately can possess. They do, but its not legitimate. Its all "the color of law". "They" have the badges and guns - and the gold.

This clause is basicall dead, but the way, and was all-but forgotten until Justice Thomas brought it out of the basement in a dissent in Saenz v. Roe in 1999.

His dissent contains the best analysis of the clause as anything that has been published in the last, say, 200 years.

http://supct.law.cornell.edu/supct/html/98-97.ZD1.html

I think that discussion might have had more to do with the commerce clause thatn the privileges&immunities clause,

You may be correct on that. Its all "intertwined", though. Without "uniform" laws governing behavior that does not violate rights, we could have very little "interstate commerce". That's why the feds have extorted away and usurped certain rights from the States - not to give them back to the rightful owners - the people, but to make their own rules. Its not right for either level of government to do so.

Neither the 9th or 10th have played any real role in constitutional law. There have been no significant rulings that I am aware of which have invoked either amendment as a justification for the ruling.

Their initial meaning was to allow state police power to function with out regard to the federal government. Health regulations things like that were local/state concerns. States were to be allowed to deny constitutional rights to the chattel of the Slaveocrats.

And as you say these were wish lists much like the "rights" Reverend Al and Jesse are always yammering on about.

The complete irrelevence of these amendments is pointed out by the refusal of the Slaveocracy to claim their rebellion was based on them.

My view is that they were a sop to the anti-Federalists which both sides knew were nothing but rhetorical, face-saving devices.

Thanks for the link.

We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.

He had me going until then. I have to tune someone out when they say "good of the whole". Sorry, Thomas is just another "Whatever those who are in power say is good for you, goes" types. All the other "rights" and "liberties" he speaks of are negated by "good for the whole".

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