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Discussion in 'Too Hot for Swamp Gas' started by GatorBen, Aug 12, 2013.
Yes. The 4th amendment has been trampled on for far too long.
Among others *cough* tenth
Helix is still bitter about having to quarter those troops.
Of course, there's a suit in Colorado that's basically going to beg the questions of whether or not incorporation touches the 3rd Amendment and, if so, whether 'soldiers' would also apply to law enforcement. Family apparently had their home commandeered by the police as part of an investigation.
I heard about that one. Actually, been trying to keep tabs on it. Thanks for mentioning it Mich.
And 9th. Of the two, the far more egregious, imo.
We want to breathe life back into the Griswold concurrence? Because that's essentially one of the only times the Ninth has been cited for protecting an unenumerated right without significant and compelling citation to where it arises elsewhere in the Constitution.
There's the academic's darling of an argument about using it to supplement and provide more constitutional grounding to substantive due process rulings, but it has essentially never been treated as providing substantive rights, more just as a tool of interpretation to say that we shouldn't strictly apply expressio unius to the first eight amendments.
If we're going to say that it's been trampled on, it's been being trampled on ever since it was enacted. What meaning with any grounding in jurisprudence can we give to it other than what it already has?
It's fair to say that the federal courts have been blatantly ignoring the plain language of the 9th and 10th Amendment since the beginning. Contrary to popular jurisprudential myth, they aren't actually either one particularly opaque or mysterious. But they would also give the federal courts a lot less to do in general if their words were given their full effect instead of the meager (10th) or nonexistent (9th) effect they actually are given.
I wasn't referring to Griswald specifically, but yes, overall, I think the legislative branch and the courts should give a lot of credence to skepticism of ANY law that prohibits ANY behavior, unless there is a compelling state interest in doing so.
Despite all the legal angst about the wording, it seems pretty clear to me.
This is particularly well put;
Just wanted to be sure, frequently the people who are crying for the Ninth Amendment to mean something are the same ones blasting the one case arguably finding a right arising from it as being the chief example of "judicial activism."
The cause for the judicial hand-wringing over the Ninth is that it doesn't say what the "others retained by the people" are. Clearly it doesn't mean you have a right to do anything that the Constitution doesn't prohibit, but it doesn't provide any guidance as to where that line is, which is largely why it has been interpreted nearly solely as a guide to interpreting the others that says "don't be too narrow" without giving rise to any other substantive constitutional rights (which I think inherently seems right, even if we knew what the "others" were, it doesn't say that they are constitutionally protected from the exercise of the enumerated powers of the federal government, just that the enumeration of the first eight Amendments is not intended to "disparage or deny" the "others").
To be honest, IMO at least, the easier way to get to what you want would be to try to breathe life back into the PI clause, because we at least in theory have some method of setting forth what the privileges or immunities enjoyed by American citizens at the time of its adoption were, whereas there isn't any guidance as to what the "others" referenced in the Ninth Amendment is referring to.
(And this is setting aside the argument that the Ninth is essentially coequal with substantive due process, because I'm certain we have some participants in this argument who loathe the mention of that concept.)
I don't see why it's lack of an exhaustive list matters, especially since, in modern parlance, the whole point of the amendment is to say "the previous enumerated rights are not an exhaustive list". The 9th Amendment basically sets out a rule of construction -- that the benefit of the doubt should always go in favor of finding an individual right (and by which I mean what today we call 'negative rights', as 'positive rights' would be much more likely to not be called rights of any kind by those who wrote the language) and not a government power.
IMO, I think substantive due process was a way to try to reinvent the 9th Amendment without ever acknowledging that they had been ignoring it.
Eh, I think SDP more replaced what the PI clause was supposed to do without overruling the Slaughter-House Cases and throwing open the door for a sea of potential "privileges of citizenship" to be litigated than anything else (and yes you found an odd duck who thinks the PI clause has substantive meaning but the Ninth Amendment doesn't substantively mean much).
My chief issue with going after the Ninth to reinvigorate it is that - even if given the broad individual rights argument that is argued for it, I still don't think it would mean a lot. That would make it a check on regulating the exercise of those unenumerated rights except through the exercise of enumerated powers, but a challenge that Congress exceeded its enumerated powers already does the same thing.
A topic where most of us are in agreement? The world must be ending soon.
I had no problem with the court striking down laws prohibiting birth control
I think it says a person retains ALL RIGHTS, unless the state has a legitimate cause to regulate it.
Agreed. I think the people have a right to decided when and if they want to take birth control, when and if they want to be a parent and the right to body determination. They just don't have the right to give another person the right extinguish a human life to pursue those rights
This was particularly well put.