Ninth Amendment - Uneumerated Rights - or Illegitimate?

Findlaw ^ | 9/8/02 | unknown

[inquest]

You're right that the debate over the 14th can certainly get involved and convoluted, so for me to give all my reactions to the incorporation doctrine would stir it all up again, and you seem like someone who's familiar with most of the arguments. So I'll just confine myself to three observations.

The first is that I don't believe that the BOR represents privileges of citizenship, because a privilege implies something that is unavailable to people outside the group (i.e. non-citizens), whereas the BOR applies to "persons", not just citizens.

Second, the 5th amendment provides against violations of due process. So I'm at a loss to understand why such a protection would be explicitly repeated in the 14th, if it's already implied by the P&I clause.

And third, and perhaps most important, if the framers of the 14th had truly meant to incorporate the BOR against the states, I see no reason why they couldn't have made that explicit. Especially for something as momentous as this, I would think they would have wanted to be very clear about it. "No State shall abridge any of the rights enumerated in the first 8 articles of amendment to the Constitution." Done. In fewer words than they ended up using. I can't for the life of me understand why they didn't just come out with it if that's what they wanted to say.

[Cultural Jihad]

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

Agreed. Otherwise, we'd have high school dropouts with a mail order doctorate degrees on law running for the office of Chief Justice of the Texas Supreme Court. ;)

[inquest]

Your diversionary tactics still aren't working. At issue is what the 9th said originally. The 14th amendment has no bearing on that particular question.

Again, would you like to respond to #64 with a relevant argument?

[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." - inquest

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.
116
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"Your diversionary tactics still aren't working. At issue is what the 9th said originally. The 14th amendment has no bearing on that particular question."

We know what the ninth 'said'. You deny its clear intent to retain rights for the people.
Your 'diversionary' repetition bores me. Get a new line, or bug out.

[tpaine]

I really twisted old Tex's knickers this time didn't I? It appears that is remarks on the 9th being "illegitimate" have not gotten the reaction he intended.

[Texasforever]

Tpaine I want to thank you for all the publicity. You are my very bestest friend.

[general_re]

Thread here, thread gone, thread back again - I can't keep up ;)

[tpaine]

You're more than welcome, tex.
Heres your original post, still up on the libertarian thread - the kind of publicity you love.
Lets see if it passes the anono-mod decency test on this thread, one more time.
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To: Le-Roy

"What does that amendment say, and how can it possibly be construed in any other way? Do you propose to assert that that amendment is in some manner illegitimate?" Le-roy

It is and always has been an illegitimate amendment. I can define anything under the sun as a 9th amendment "right". I can claim it is my 9th amendment "right" to fornicate with a goat on my front porch and it is as legitimate as you claiming you have a 9th amendment right to shoot me if I do. The 9th amendment is like a letter to Santa, only kids aged 3 to 8 years old believe in it.

210 posted on 9/8/02 12:54 AM Pacific by Texasforever

[tpaine]

'Tex' apparently has a personal protector on the mod squad, that pulls embarrassing threads & posts for him. -- No big deal.

[SpencerRoane]

"The first is that I don't believe that the BOR represents privileges of citizenship, because a privilege implies something that is unavailable to people outside the group (i.e. non-citizens), whereas the BOR applies to "persons", not just citizens."

[Excellent point--and one not often made. On the other hand, the drafters of the 14th Amendment weren't known for their attention to these particular kinds of details.]

"Second, the 5th amendment provides against violations of due process. So I'm at a loss to understand why such a protection would be explicitly repeated in the 14th, if it's already implied by the P&I clause."

[Maybe because the P&I clause was only intended to cover citizens, while the due process clause covered the broader category of persons. But this goes against my point above that the 14th amendment's framers were not exactly the Elders on the Rhine.]

"And third, and perhaps most important, if the framers of the 14th had truly meant to incorporate the BOR against the states, I see no reason why they couldn't have made that explicit. Especially for something as momentous as this, I would think they would have wanted to be very clear about it. "No State shall abridge any of the rights enumerated in the first 8 articles of amendment to the Constitution." Done. In fewer words than they ended up using. I can't for the life of me understand why they didn't just come out with it if that's what they wanted to say."

[Fair point--and in my view a pretty good one. Maybe they wanted incorporation plus natural rights. Maybe they intentionally kept it vague because they knew they couldn't otherwise get it ratified.]

[SpencerRoane]

"Agreed. Otherwise, we'd have high school dropouts with a mail order doctorate degrees on law running for the office of Chief Justice of the Texas Supreme Court. ;)"

I thought it was the OTHER Don Yarborough!

[Texasforever]

Tpaine please tell me how my opinion is wrong? People have a "right" to do anything they please. If that goes unchallenged then it is recognized as a "right". However; there is a process in this country that allows those that do not agree that "goat fornication" is a "right” until established by a 3rd party intervener (judicial or legislative). There is absolutely no human activity that cannot be claimed as a 9th amendment right. For that reason alone the 9th amendment is a dead letter.

[tpaine]

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.
6 posted on 9/8/02 10:08 AM Pacific by Arkinsaw

[Texasforever]

That explanaition gives no one that disputes that "right" the "right" to dispute it.

[hosepipe]

Sacrifices of our Founding Fathers -
http://www.FreeRepublic.com/forum/a37e7c1773ae8.htm

[tpaine]

Lay off the sauce, tex, and maybe in the morning you'll be able to 'get' it.

[Texasforever]

Lay off the sauce, tex, and maybe in the morning you'll be able to 'get' it.

So trying to discuss this with you means that I must be on the "sauce". Maybe you are right.

[Roscoe]

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

He lurches from disaster from disaster.

[breakem]

I think it was Bill Buckley who said: better to be governed by the first 100 names in the phone book than graduates of the Harvard Law School.

[tpaine]

What is this, the good tex - bad tex act?
Yesterday I made your teeth itch, today you want a cozy chat?

You too crazy for me sucka. Take a hike.