Ninth Amendment - Uneumerated Rights - or Illegitimate?

Findlaw ^ | 9/8/02 | unknown

[tpaine]

ping

[longshadow]

How say you?

If the framers of the Bill of Rights meant for the Ninth Amendment to be the equivalent of an inkblot, they would have put an inkblot there.

They didn't.

BTW, There's an excellent book available on the 9th Amendement ("Rights Retained by the Poeple"?), whose author I cannot recall at the moment.

[AnnaZ]

I was just discussing the 9th Amendment with my brother yesterday, so I thank you for this, especially the judicial inferences.

 

The 9th Amendment reminds us, I believe, that we are a free people. People tend to forget that the Constitution exists to limit the power of the government, and to guarantee the power of the people. If it ain't enumerated, but it ain't infringing on someone else's life, liberty and pursuit of happiness, it's a right.

 

(And don't ever waste a second paying attention to anything "no pardons" posts.)

[Arkinsaw]

It is and always has been an illegitimate amendment.

I would say, that having been ratified by the people through their States, that its legitimate even if some guy on a website says its not. LOL

[Arkinsaw]

But if there is a claim of a fundamental right which cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from abridgment?

Thats a really easy test.....does it promote the liberty and general welfare of the people or diminish it, and was it viewed historically as a sphere in which the government traditionally could not intrude at the time of ratification.

If it is contrary to the promotion of liberty then it is not a fundamental right (the right to shoot people randomly without due process), if it diminishes the general welfare of the ratifiers (the people of the ratifying States)then it is not a fundamental right (covers goat fornicating I believe). If it was viewed at the time of ratification or through long historical precedent as an area that the government could not intrude upon then it is a 9th amendment right (the right to choose Coke over Pepsi, the "individual" right to keep and bear arms, the right to home school, but not the right to fornicate with goats on the front porch).

These are easy, common sense tests based on the long-standing traditions of our country as to what are and what are not God-given rights. The detractors complaints are misdirected towards the Constitution when they should be directed directly at those who misinterpret it. Their misinterpretations in response do not help.

[tpaine]

Here s a link to the thread mentioned.
Le-Roy starts off the topic of rights in a post to JR at #194:

Libertarian Party candidate forced off state ballot
Address:http://www.freerepublic.com/focus/news/746356/posts

[tpaine]

Your book is cited in the last footnote above.

The Rights Retained by the People: The History and Meaning of the Ninth Amendment (Randy E. Barnett, ed., 1989

Gotta remember to use your 'inkblot' line on tex. - Funny -

Thanks.

[Lurker]

Tex is one of those 'cafeteria conservatives' dontchaknow.

He picks and chooses the parts of the Constitution he likes, and ignores the ones he doesn't. It's kind of like being a pro-abortion Catholic.

It's also one of the reasons that talking to Tex is a lot like trying to teach a pig to sing. It wastes your time, and annoys the pig.

Regards,

L

[tpaine]

The 9th Amendment reminds us, I believe, that we are a free people. People tend to forget that the Constitution exists to limit the power of the government, and to guarantee the power of the people. If it ain't enumerated, but it ain't infringing on someone else's life, liberty and pursuit of happiness, it's a right.
 
(And don't ever waste a second paying attention to anything "no pardons" posts.)

---

Thanks Anna. -- The tex/roscoe/noP/cultist crowd here is a constant source of amazement for me. They all claim to be 'conservative', -- yet day after day post the most ludicrous BS about our constitutional free republic.
Weird people.

[tpaine]

"It is and always has been an illegitimate amendment." - tex

I would say, that having been ratified by the people through their States, that its legitimate even if some guy on a website says its not. LOL
5 po
__________________________________

You should hear tex when he gets started on the 2nd amendment.
-- Maybe, if we get lucky, he can tell us again how states have a 'right' to prohibit guns.

[inquest]

Well, I think you know where I'm about to go with this, because we've been through this before. The real issue isn't what the 9th amendment says, but the 14th. The ninth, as it was originally conceived, was to apply only to the federal government, and as such it made perfect sense, for it only meant to dispel the notion that the listing of powers that are off-limits to the feds, does not mean they can do anything that isn't expressly off-limits. IOW, they're still limited only to the powers positively granted to them, and only those powers that are truly necessary and proper to carry them into effect.

I still argue that that hasn't changed, despite the 14th amendment. To say that it applies to the states (which already have plenary, not enumerated powers) creates an untenable situation, one that I believe Texasforever raised a valid (if unsavory) point against.

[tpaine]

Ahhhh yes, but some of us enjoy pig hunting, and all the squealing heard when they're cornered.

[mrsmith]

Justice Story: "§ 1898. The next amendment is: "The enumeration in the constitution of certain rights shall not be construed to deny, or disparage others retained by the people." This clause was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others; and e converso, that a negation in particular cases implies, an affirmation in all others.1 The maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies. The amendment was undoubtedly suggested by the reasoning of the Federalist on the subject of a general bill of rights."

The use of the Amendment by Justices Douglas and Ginsburg is an abomination. It was meant to preserve rights already in the common law and not to create new ones.

From the context of the thread a reasonable person would assume that Tex was speaking of the use of the 9th Amendment for "support of the most dangerous political heresies" as 'illegitimate'- or ask him to clarify.

[AnnaZ]

Heh heh heh... I see you caught my sneak-tip message.

;^)

Some folks are just plain cantankerous. (Or is that pronounced "hubris"?)

[realpatriot71]

How say you?

These guys hate EVERYTHING about the Constituion except for the part about guns and God - everything after that is just "details" getting in the way of their christian theocracy. These people do not love freedom, they hate it, and they hate those that stand up for principles of freedom and liberty. Definitely NOT conservatives, but something else entirely, something very frightening . . .

It doesn't suprise me at all that they would take a stance on the 9th amendendment the way they do.

[tpaine]

Well, I think you know where I'm about to go with this, because we've been through this before. The real issue isn't what the 9th amendment says, but the 14th.

The 14th was ratified to correct this misconception you have & many others had, about the 9th. This fact is well documented from the 1868 congressional debates.

The ninth, as it was originally conceived, was to apply only to the federal government,

Simply untrue. The 'supremacy clause', Art VI, specifically says that states laws are BOUND to obey the supreme law of our constitution.

and as such it made perfect sense, for it only meant to dispel the notion that the listing of powers that are off-limits to the feds, does not mean they can do anything that isn't expressly off-limits. IOW, they're still limited only to the powers positively granted to them, and only those powers that are truly necessary and proper to carry them into effect.

The ninth ALL-ways made perfect sense. The Marshall court in 1833 simply decided to ignore this 'sense' for 'states rights' political reasons. -- You still do the same.

I still argue that that hasn't changed, despite the 14th amendment. To say that it applies to the states (which already have plenary, not enumerated powers) creates an untenable situation, one that I believe Texasforever raised a valid (if unsavory) point against.

You've never explained this 'untenable sitution'. Can you?

[Roscoe]

The use of the Amendment by Justices Douglas and Ginsburg is an abomination. It was meant to preserve rights already in the common law and not to create new ones.

The Ninth Amendment was not intended to overturn the common law's prohitions on sodomy, prostitution and the various other vices that Libertarians seek to reinvent as "Constitutional rights."

"Some form of limitation on spirits has been part of this continent's history since the first European settlers arrived. Originally, these limitations were imposed to prevent drunkenness among the colonists."

The Making of Prohibition