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"A Universe of Rights, possessed by the People"

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  • Strongly Liberal Democrat
    Democrat
    Portland, OR
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    Back in 2000, Harvard historian Bernard Bailyn gave a speech which he explained what the Ninth Amendment meant to him. He stated that the Ninth Amendment guaranteed "a universe of rights, possessed by the people — latent rights, still to be evoked and enacted into law....a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law."

    Although the Ninth Amendment isn't one that most people refer to when they discuss the major amendments of the Constitution, this Amendment can not go unnoticed. What our Ninth Amendment states is that our founding fathers knew that things would come up in the future and they wanted to guarantee that it was stated that we are born with more rights than they had specifically listed.

    Thoughts on the effect that the Ninth Amendment has had on American society throughout the years?
  • Democrat
    Philly, PA
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    jaredsxtn Wrote: Back in 2000, Harvard historian Bernard Bailyn gave a speech which he explained what the Ninth Amendment meant to him. He stated that the Ninth Amendment guaranteed "a universe of rights, possessed by the people — latent rights, still to be evoked and enacted into law....a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law."
    That sentiment is just a rewording of James Madison's "great residuum" characterization of our rights. It is from Madison's address when he was introducing the proposed Amendments to Congress. It just explains that the Constitution is a charter of conferred powers that the people grant to government; it was understood that everything not conferred was retained by the people.


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    "It has been said, by way of objection to a bill of rights, . . . that they are unnecessary articles of a Republican Government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. . . .

    It has been said, that in the Federal Government [that a bill of rights] are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a call of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. . .

    It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

    [that clause being what would become the 9th Amendment]

    Madison's Introduction of the Bill of Rights
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    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    The 9th Amendment (as well as the 10th) has its roots in the Federalist's arguments against adding a bill of rights to the Constitution.

    As noted above, the Federalists thought adding a bill of rights was unnecessary, dangerous and absurd.

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    "I . . . affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"

    Federalist 84
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    Of course the Federalists "lost" the argument over adding a bill of rights but the 9th and 10th Amendments stand as testament that their consideration of the relationship between conferred government powers and the never parted with, retained rights of the citizen were universally accepted by the federal framers and the state ratifiers.

    jaredsxtn Wrote:Thoughts on the effect that the Ninth Amendment has had on American society throughout the years?
    The 9th Amendment has had a tough road being respected. It doesn't contain a substantive immunity to be claimed by a citizen like the 1st, 2nd, 3th or 5th,. . . it is just a rule of Constitutional interpretation. The principles of a generalized right to liberty it recognizes were pretty much killed by the Supreme Court in 1873 in a case called The Slaughterhouse Cases. SCOTUS essentially nullified the 14th Amendment's "privleges or immunities" clause leaving only "due proces" to decide the applicability of the Bill of Rights to invalidate government action. This requires a case by case, fact by fact examination and does not lend its self to establishing any general rules that government can't act in any fashion impacting this interest.

    Slaughterhouse changed the rules from inspecting the Constitution to see what the government is allowed to do, to instead deciding whether or not the citizen should be allowed to do what he claims is a right.

    That generalized right to liberty was invigorated by the Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1965) in which the "prenumbral rights" theory was advanced. Justice Douglas wrote that the specific specific guarantees of the Bill of Rights have penumbras "formed by emanations from those guarantees that help give them life and sub-stance," and that the right to privacy exists within this area. This of course led to Roe v Wade and Planned Parenthood v Casey establishing unenumerated rights to abortion and contraceptive services.

    I consider the prenumbral rights theory an acceptable work-around of Slaughterhouse; of course that opinion is disputed to the point of dismissing the foundational principles of the 9th Amendment.

    Those principles embodied in the 9th Amendment are troublesome for some groups on the left and the right. On the left, statist Social Democrats are frustrated because their agenda demands the acceptance that rights flow from the government and the state can and must limit rights for the good of society (add in a pinch of Bolshevist communitarianism for good measure). This is quite evident in the late 20th century attacks on the right to arms employing assorted invented "collective right" interpretations of the 2nd Amendment. Now, those supposed constitutional "justifications" have been abandoned and replaced with just blatant, un-camouflaged, "who gives a shit what the Constitution or what SCOTUS says". (e.g., Washington DC, Chicago and Feinstein, Schumer, McCarthy, Holder, Obama etc)

    On the right we see dogma governed social/cultural conservatives off the constitutional rails with their all-encompassing opposition to abortion / gay rights (and the white-hot hatred for the prenumbral rights theory that "created" those "invented" rights). Those social / cultural agendas pollute their constitutional thinking with the, "it's not in the Constitution, so it's not a right" or "where's that right in the Constitution?" legal arguments. This position is in opposition to the principles of conferred powers and retained rights and the concept that the Bill of Rights is not the exhaustive listing of the citizen's rights and thus, at complete odds with the principles underlying the 9th Amendment.

    I personally am a Constitutionalist and have really grown to hold deep disdain for dogma governed social/cultural conservatives. I hate being lumped in with them (especially because I'm socially left of center).

    It would do the reasonable left some benefit to make a distinction between Constitution focused political conservatives like me and "dogma governed social/cultural conservatives" because on many political issues we two are at deep philosophical odds.