Ninth Amendment - Uneumerated Rights - or Illegitimate?

Findlaw ^ | 9/8/02 | unknown

[SpencerRoane]

No framer/ratifier of the Ninth or Fourteenth Amendment would have thought that either Amendment protected sodomites from prosecution (by the individual states) as sodomites.

[inquest]

I don't believe that the privileges-and-immunities clause has any such effect (and neither, by the way, do the courts, as they've opted for the "due-process clause" route for incorporation of the BOR, which I still disagree with). Privileges and immunities are not the same as rights, in the absolute sense. They include such things as land ownership, standing to bring suit to court, immunity from extradition, etc.

The overall meaning of the 14th amendment, as far as I can see from reading it, is only to prohibit the worst types of abuse of state power, not to impose a general political morality on the states. For that, the states have their own constitutions with their own bills of rights.

[Roscoe]

No framer/ratifier of the Ninth or Fourteenth Amendment would have thought that either Amendment protected sodomites from prosecution (by the individual states) as sodomites.

Ask tpaine.

[mrsmith]

It's ba-ck... (did I call that right or what?)

"Justice Goldberg, concurring, devoted several pages to the Amendment"
But only one cite of a Founder, and that was the Madison quote that Story's remarks were based on.

I think the frequently cited Anti-federalists' concerns that the Constitution did not protect the common law was the basis for it as it was for most of the BOR.

The most liberal construction of the amendment would be that it reserved the rights "held" when it was ratified.
Using it to claim any other "rights" - like "natural rights, economic rights, privacy rights, labor rights..." - is not AFAIK supported by the Founder's view of it at the time. New "rights" must be expressed in the legislature.

[inquest]

I agree, but that is not a rights-based prohibition. I want every provision I can find to bind the hands of the national government when it is not truly dealing with national matters. So did the ratifiers (as distinguished from the original framers) of the original Constitution.

Well, that's why the BOR is there, to clear up any possible confusion. In other words, the whole thing is more or less a "rule of construction", so to speak.

[Roscoe]

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

"But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government--not against those of the local governments." -- Barron v. Baltimore, 7 Pet. 243 1833

[SpencerRoane]

#19
The ninth, as it was originally conceived, was to apply only to the federal government,
and as such, it made perfect sense
_________________________________

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

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.
#19"

There really should be some minimal educational requirements for posting on constitutional issues. The original Bill of Rights applied only against the federal government. Any uncertainty on this point was settled by Barron v. Baltimore in the 1830s. There was a lunatic abolitionist fringe that thought it shoudn't be that way, but that fringe was vastly outnumbered.

To say that the Marshall Court was a "states rights" court is a hoot. John Marshall epitomizes the judicial quest for broad national powers. His court included Justice Story, another national power man. The fact that a Marshall-Story Court would unanimously apply the bill of rights only to the federal government merely underscores the extremist/meshuganna nature of those who thought otherwise.

[inquest]

Yeah yeah yeah yeah, and then we went back and forth until you brought up the 14th amendment, which had nothing to do with whether or not the 9th, as it was originally conceived, applied only to the feds.

Any chance you'd like to respond to #64 with a relevant argument this time?

[Roscoe]

There really should be some minimal educational requirements for posting on constitutional issues.

Amen.

[SpencerRoane]

"I don't believe that the privileges-and-immunities clause has any such effect (and neither, by the way, do the courts, as they've opted for the "due-process clause" route for incorporation of the BOR, which I still disagree with)."

Well, the courts sometimes get things wrong. The debate over the meaning of the 14th Amendment has gone on too long for me to re-enter it in detail tonight. One thing that most scholars agree on, however, is that whatever substantive rights (be they expansive or narrow) the framers meant to protect in Section 1, the P&I Clause was the vehicle intended to convey such rights. In other words, the Slaughterhouse Court got it wrong.

This is a separate question from the incorporation controversy. I agree with you that the weight of historical evidence is against the incorporation theory, but the evidence both textual and historical is a lot closer than conservatives would like to admit.

[SpencerRoane]

Yes, but not only a rule of construction.

[inquest]

One thing that most scholars agree on, however, is that whatever substantive rights (be they expansive or narrow) the framers meant to protect in Section 1, the P&I Clause was the vehicle intended to convey such rights. In other words, the Slaughterhouse Court got it wrong.

This is a separate question from the incorporation controversy.

OK, just for the sake of clarity, I have to ask what you mean. You seem to be acknowledging that the P&I clause did not apply the BOR against the states, but that it still applied some other types of rights. Would these be different from the ones I mentioned in #102? I'm just curious to know (not trying to start an argument here :) ) what you think the most plausible interpretation of that clause is.

[inquest]

Yes, but not only a rule of construction.

You're right, it has profound philosophical implications as well, and as such I agree it's a national treasure. But from a strictly legal standpoint, I would argue that it's little more than a rule of construction, not that that should diminish its stature.

[tpaine]

"There really should be some minimal educational requirements for posting on constitutional issues."


How true. - The rest of your post only removed all doubt. - It was a 'hoot' of opinions dressed as pronouncements from on high.

[SpencerRoane]

I think you and I are talking about the same category of rights--the Corfield v. Coryell rights. But I don't think it is inherently unbelievable that a ratifier in the 1860s would have thought that the Privileges and Immunities of U.S. citizens meant more. The first 8 amendments had applied against the federal government. Would it have been so crazy to think that the privileges of U.S. citizenship included the rights protected by these amendments? If I remember correctly, the Senator who introduced the Amendment in the Senate specificaly stated that it covered the bill of rights (or at least the first 8 amendments). Many of the 14th Amendment's opponents made similar claims. Again, I come down with those who argue against incorporation on textual and historical grounds. But I see it as a pretty close question. And this has serious implications if you are talking about rolling back 60 years of constitutional rulings.

[tpaine]

"you brought up the 14th amendment, which had nothing to do with whether or not the 9th, as it was originally conceived, applied only to the feds."

The 14th was ratified because the 9th, and all the rest of the BORs were being violated by the states after the civil war. -- The 1868 debates are in the congressional record for all to see.

Your denials of known facts are ludicrous. What is it about the 'states rights' mania that brings out the worse in men? Strange to reject your own inalienable rights.

[SpencerRoane]

"How true. - The rest of your post only removed all doubt. - It was a 'hoot' of opinions dressed as pronouncements from on high."

I supported my view of your constitutional illiteracy with a statement which you are apparently incapable of factually refuting.

[x]

There was some original context for the Amendment: the common law, the Magna Charta, the Anglo-American legal tradition. The rights recognized by the tradition were not to be abridged simply because the authors of the Bill of Rights failed to mention them.

Today's justices aren't bound by tradition. They are to be philosopher-kings, who divine the answers on their own, using their own intellect and theories. And indeed, the old common law or traditional understanding isn't as valued as much as it once was. Once you go beyond the enumerated rights in Amendments 1-8, if justices, judges or law professors or many others want to determine what additional rights we have, they often turn to philosophy, rather than precedent.

The case with the 14th Amendment was similar. There was presumed to be some corpus of basic civil rights to be guaranteed by the Amendment, but there was no definition of just what those rights were. And this was a recipe for mischief by the courts.

So what we're left with is the either/or, either for individual freedom or government power. But I think we're all aware of cases when either one or the other should be curbed. Notice I'm not saying that legitimate individual rights or liberties should be curbed, but that courts could define as individual rights not to be infringed by government action things that we would recognize as no rights at all. We would not, I suppose, think it a victory for liberty if things that we had long regarded as crimes were somehow turned into rights overnight by justices. A better drafted amendment wouldn't leave us in such a limbo.

[tpaine]

"I supported my view of your constitutional illiteracy with a statement which you are apparently incapable of factually refuting."

No, you didn't. Your statements on that post were tired old opinions I've heard successfully refuted many times before.
Why should I bother? Put something new on deck, or shut up.

[Texasforever]

I really twisted old Tpaines knickers this time didn’t I? It appears the thread has not developed as he intended.