Maggie's FarmWe are a commune of inquiring, skeptical, politically centrist, capitalist, anglophile, traditionalist New England Yankee humans, humanoids, and animals with many interests beyond and above politics. Each of us has had a high-school education (or GED), but all had ADD so didn't pay attention very well, especially the dogs. Each one of us does "try my best to be just like I am," and none of us enjoys working for others, including for Maggie, from whom we receive neither a nickel nor a dime. Freedom from nags, cranks, government, do-gooders, control-freaks and idiots is all that we ask for. |
Our Recent Essays Behind the Front Page
Categories
QuicksearchLinks
Blog Administration |
Thursday, May 10. 2012The Renewed American Revolution: The 9th AmendmentWith the enlargement of federal powers and intrusions into individual’s lives, the 9th Amendment to the US Constitution, part of our Bill Of Rights, may well gain more judicial attention. The 9th Amendment should be elevated to central prominence, as it was intended, in applying judgment of all federal legislation, regulations and actions. Our revolution is based in restriction of central powers and must again be reignited to, no exaggeration, save our liberties. Here's the spare words of the 9th Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The 9th Amendment is the least cited or relied upon in Supreme Court cases. The lack of agreement among constitutional scholars as to the specific meaning of the 9th Amendment is largely the reason. This lack of agreement also exceeds the general lack of agreement – usually along liberal and conservative lines – as to many other sections of the Constitution. Focus on transgressions of the first eight Amendments, more specific as to particular rights, and cases specifically concerned with how broad should be an enumerated (listed) power, was usually enough until now. But constitutional scholars do agree on a basic point: the 9th Amendment was intended to be a guiding construct to interpretation of the rest of the Constitution, although specifics may be either lacking or in contention. After all, the 9th Amendment was considered necessary to be part of our Bill Of Rights without which the Constitution would not have been ratified. Today, there are new factors requiring more attention to the 9th Amendment: the cumulative and continuing expansion of federal legislation into territories formerly outside its enumerated reserve, the almost unchecked latitude claimed by federal regulatory rules, and technologies’ facilitation of increased central controls and uniformity. The runaway employment of the federal purse and tax to compel obedience is, simply, out of control at the same time that it is evident that the economic security of the nation is imperiled by it. There is an unprecedented crisis of confidence by most members of the public (the “people” referred to repeatedly in the Declaration of Independence and the Constitution). Polls and protests repeatedly demonstrate the widespread unrest that the “peoples” federal government is unrepresentative of their concerns and needs or not protective of individual rights. This alienation from government is lamented but the proliferation of narrow lobbies at contention with each other has proven to not be the answer, instead furthering discontent and fractiousness rather than encouraging unity and common purpose. This is not so much a liberal or conservative issue but one that gets to the core of our Founders’ construction of the American experiment. Conservative Congressmen and Senators, although much less so than liberals, have often acquiesced in or cooperated in stretching the enumerated powers in the Constitution into areas formerly outside federal action. It is largely libertarian constitutionalists and careful historians of various stripes who are leading the way toward a broader understanding of the 9th so it may more frequently be applied to the protection of individual rights, and by extension to preserving the successful uniqueness of the United States governance. This will not be a one-way street. For example, the results may not please those who support the legislation of traditional moralities. Particularly, the 9th Amendment can be selectively construed by liberals to forbid the federal or state governments from barring an individual’s choices. In the Griswold predecessor to the Roe v. Wade decision that struck down state laws barring abortion, the primary reliance was upon the 14th Amendment that extended the Bill Of Rights to the states, but the 9th was referred to as supporting a “right of privacy” that is not one of the first eight Amendments. Legislators have properly narrowed the carte blanche of Roe v. Wade, and in other Supreme Court decisions the “right of privacy” is seldom mentioned, rather relying on other sections of the Constitution. Similarly, restricting the contractual rights and obligations of union between same-sex couples may be struck down by a renewed 9th Amendment, although there are strong Constitutional "states rights" arguments to the contrary. Legislation for “civil unions” has been a correct step, but sacrament, i.e. “marriage”, should be left to voluntary houses of worship. In other words, elevating the 9th Amendment may be disruptive but experience shows that widely acceptable adjustments will result. There is little or no evidence that our justified interests in strengthening family life is seriously undermined by abortion in reasonable cases, as woeful or immoral as it is, nor by civil unions. There are far more direct influences on family life. The upcoming ObamaCare individual mandate decision from the Supreme Court was argued around the Commerce and Necessary and Proper clauses of the Constitution, relying more on their injunction by the Obama administration and more common precedents. I haven’t read all the plentitude of briefs submitted but don’t recall the 9th Amendment being raised or focused upon. If there were wider attention to the 9th, perhaps it would have added force to the opponents’ arguments. That is why prudent legislators and judges are even more necessary to avoid excesses in any direction. Ultimately, that comes back to the “peoples” power to elect representatives. That is why the role of legislators is so important. Further, unless found to clearly cross a line of enumeration, the Supreme Court tends to defer to the Congress. The other reason that legislative elections are so important is the Senate must agree to Supreme Court appointments by the President. The current Supreme Court frames its decisions in Constitutional text, understandings and precedents, their applications often leaning away from many liberal assertions. Future decisions and Court members would be influenced by a renewed interest in the 9th Amendment. To get to the point, Patrick Henry said,
In drafting the 9th Amendment, perhaps the wording by Madison would have been preferable.
But, that was not to be. Constitutional scholar Robert Bork famously said that the 9th Amendment is like an inkblot, which without more specificity could be subject to many interpretations and, thus, cannot by itself protect an unwritten right not included in the Constitution. That is true. Nonetheless, the 9th can not only buttress the restriction of other sections of the Constitution but also lends credence to the intended limited meaning of other sections. On the other hand, 9th Amendment law professor Randy Barnett suggests that a layman’s reading of the words of the 9th Amendment is most reliable. That may also be true. But there are many laymen. Barnett points us to “natural rights”, but aside from they being innumerable are also subject to selection or contention as to whether there are any. Others point to any individual rights that existed in each state prior to joining the Union. But many were not listed, are arcane, or not applicable to many of today’s issues, aside from many state restrictions on individual freedoms unacceptable today. I particularly point the reader to Randy Barnett’s law journal argument (download here), and to Kurt Lash’s two-part exploration of the “lost” history and jurisprudence of the 9th Amendment (Part 1 history, Part 2 jurisprudence). There are disagreements but a commonality that we have paid too little attention to the 9th and that it may and should today more enter into judicial decisions, as it did before the New Deal. As Lash ends his second Part,
One cannot predict with specificity where a renewed prominence may lead this or future Supreme Courts. One can predict with confidence that it will heighten respect for individual rights, in keeping with today’s and tomorrow’s challenges to them. Comments
Display comments as
(Linear | Threaded)
So, it seems to simply say that you can't use the Constitution's language protecting one right to infringe on other rights. Just because the Constitution might accidentally say that it's ok to disparage a person's rights while protecting other rights, the rights of the people reign supreme to the wording of the Constitution. Never looked that this issue before, thanks for the post.
As a Naval Officer, I took an oath to protect and defend the Constitution.
Why can duly elected politicians, who take basically the same oath, categorically ignore constitutional limits and defy the will of the people? What enforcement power do we the people have when the Senate ignores their constitutional responsibility and refuses to produce a budget? How do we reign in the leviathan? Who is John Galt? Why can duly elected politicians, who take basically the same oath, categorically ignore constitutional limits and defy the will of the people?
Because they can. With no media taking its traditional role (opposed to being the current Leftist mouthpiece\herald), it is a daunting task to hold them accountable, but doable with today's technology and alternative media. What enforcement power do we the people have when the Senate ignores their constitutional responsibility and refuses to produce a budget? Voter imposed term-limits, the State Governor's recalling them home to answer for their actions, Civil lawsuits for their dereliction of duty at the state level. Hard to do in Leftist states, but there are actions. How do we reign in the leviathan? Term limits, Balanced budget amendment, the many States calling an Article Five convention, State level nullification to Federal mandates, etc. There are others, but each State has other options available. here's a few points:
1. under the constitution, there are no absolute rights. exercise of any right inevitably infringes on another right. the constitution provides a mechanism for balancing the interests of some rights-holders vs. other rights holders. the relative importance of the interests determines where the fulcrum of the balance is. e.g., political speech is extremely important and the reasons against it slight, so the government has a very heavy burden in regulating speech content. there's a lesser burden in regulating how (time place and manner) speech is exercised. advertising, on the other hand, can be content regulated more easily because it is of lesser importance and the public has a high interest in preventing overly false advertising. 2. since Marbury v. Madison, the ultimate arbiters of what the constitution "really" means are the feeberal courts and ultimately the supreme court. what they say it means is what it means. you might not like it, and bloggers, op-ed writers and political websites might rail unto the ends of the internets, but that's the bottom line. although I hope the USSC uses the 9th Amendment or reinterprets the commerce clause to rein in the reach of congress, until it does, we're all stuck. 3. even so, as horrendous as some judicial decisions have been, there's always the hope that they can be corrected on appeal, or by act of congress. this is vastly superior to constitutional interpretation by citing the "will of the people" as justification for personal preferences. if we can't ultimately trust the procedural rules the constitution imposes as well as its substantive protections, we might as well start sharpening the knives. 4. John Galt was leftfielder and batting champion of the St. Louis Browns. Responding to your #1. I don't see it that way. We the People are the Rights holders. We have tasked the government, and consented to its limited exercise of some powers, to secure some of our Rights, in some times and places and for some or all of us.
What you mean when you say "there are no absolute rights", is that living in an imperfect world, it's near impossible to secure a Right for All of Us all the time. So we have to make some choices about how much we want the government to do. Meaning that in some times and places, you may have a hard time exercising your rights, and no one is compelled to help you. What the 9th says, is just because we asked the FedGov to secure some Rights for some time/place/persons, We the People reserve the power to secure more of our rights through means other than the government. And the Govmt does not have any power to stop Us. the constitution speaks in absolutes: "congress shall make no law ..", "... shall not be infringed", "right .. shall not be violated", "no person .. shall be deprived of due process".. etc. but in practice, these are not absolutes. many USSC cases say this, here's one: United Public Workers v. Mitchell - 330 U.S. 75, 95-96 (1947)
I'll give you some examples. You want to stump for your candidate, the essence of protected first amendment rights; I want to sleep at night, so the government passes a law prohibiting you from using a bullhorn at midnight on my residential street: a time place and manner restriction that puts your right against mine. the government content restricts your first amendment speech rights to publish troop transport movements during wartime. that's your right against the government's interests. there's a right to due process and freedom from unreasonable searches and seizures, but there are tens of thousands of court cases trying to figure out what process is due and what searches are unreasonable. you have a right to counsel, but not before grand juries. the second amendment guarantees a right to bear arms, but you can't own and fire surface to air missiles. here's the way the courts (but rarely the legislature) analyze this in the context of the first amendment: When assessing the constitutionality of any electronic media regulation, courts generally employ the well-known balancing test in which the First Amendment rights of the speaker are weighed against a substantial or compelling government interest. This traditional balancing test involves asking whether the gravity of the "evil" sought to be prevented by the government regulation justifies the extent of the infringement on free speech imposed by the regulation. First explicitly articulated by Chief Judge Learned Hand in United States v. Dennis (1950), the test was later adopted by the Supreme Court (Dennis v. United States, 1951), and soon became a prominent component of the Court's First Amendment analysis (see Frantz, 1962; Posner, 1986). klicken sie hier for source for the most part, the legislature and courts make decisions between your rights and my rights, or your rights and public rights/interest (because the public has a right to safe troop movements, and quiet at night, and not getting the crap beaten out of it by overzealous police trying to get a confession). and while I'd be inclined to trust the judgment of any MF commentator for an inherent feel for constitutional rights, the "we the people" argument is used by a club by diverse groups as code pinko, wannabe nazis, pro-abortion and pro-life advocates, and even degenerate fans of open wheel racing; in other words, there's a lot of circular reasoning or question begging in making that kind of appeal. regarding your 9th Amendment comment, you need to be very careful about making any thumbnail summation f what it means, because what it means is very complex and contextual. however, the USSC said in U.S. Public Workers: "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail." so it looks like the real question, not surprisingly, is what are the granted powers. Perhaps the term "will of the people" is a little imprecise in my first usage. Elected representatives that disregard the "will of their constituents" is the issue. We have allowed the representative process to deteriorate to the point where elected officials do not feel compelled to represent all of the people in their district/state/nation. Furthering a larger agenda is more important to certain members of legislative bodies than respecting and representing the interests of "we the people" who elected them.
The term "we the people" is, indeed, often misused and the words stolen by groups with a variety of questionable intentions. But the historical concept is that of a democratic elective process leading to an acceptable consensus and a general agreement of all of the governed in the path that the government is taking. We have lost sight of these lofty goals and the governing process has been corrupted by the pursuit of political power for the power itself. "John Galt" infers the sense of exasperation and futility one feels when the machinery of government no longer seems responsive to the people who elect them. The writers of the Constitution assumed a level of principle, honor, and integrity would exist in the society and thereby in the representatives elected to run the machine. Somehow we need to regain these ideals and perhaps we can establish a more Civil Society. "But the historical concept is that of a democratic elective process leading to an acceptable consensus and a general agreement of all of the governed in the path that the government is taking. We have lost sight of these lofty goals and the governing process has been corrupted by the pursuit of political power for the power itself."
I don't think history bears that out. from the days following independence, there has been vigorous political factionalism and the failure of consensus. the articles of confederation are the first of many examples of that. the most prominent failure being the strong central government view of hamilton vs the jefferson and the thirty years of brokered deals between northern and southern staes over economic policy and slavery: the Compromise of 1790, the Missouri Compromise in 1820, Compromise of 1850, the Kansas–Nebraska Act of 1854 and some ugly court decisions (e.g. Dred Scot). there was consensus only in the sense that civil war was delayed, but views became ever more polarized. all came to a crashing Fail in 1860. and even after the 13th Amendment did away with that 3/5 of a man obscenity, ask any black American if he or she thinks that 90 years of jim crow laws and "separate but equal" (Plessy v. Ferguson, 1896) represented general agreement of all the governed. I suggest that to make american exceptionalism work, we need to reject the notion of the "good ol' days" as something we should return to. we americans should acknowledge our faults and limitations and tendencies towards falling into "us vs them" factionalism but strive for the as-yet unrealized ideals of the general agreement of all the governed. Galt is a whining quitter. who needs him? Ah, the 9th Amendment. Ok, let's try this one:
Part 1. According to Wickard v. Filburn, Congress may regulate any activity which -affects- interstate commerce. Specifically, wheat grown for consumption on a family farm (not resale) was deemed to affect commerce, and therefore could be regulated. Part 2. Breast feeding has been the norm since the dawn of time, and therefore is a natural right. Indeed, many states recognize it as normal and proper public behavior. The 9th amendment proclaims the protection of rights that they "...shall not be construed to deny or disparage others retained by the people." By the Wickard standard, anything that might be sold to a consumer can be regulated, because it "affects" interstate commerce. Therefore, because somebody somewhere may want to sell infant formula or even breast milk (wet nurses are still out there and still needed), Congress is authorized to regulate breast feeding, even in the home, and in the family. As Justice Thomas dissented in Gonzales v. Raich (wherein Wickard's reasoning was applied): “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States." And so, breast feeding is commerce. Yes/No? Resolution, anybody? 10 paces, turn and fire! that's just a reductio ad absurdum argument using the commerce clause. are you suggesting congress couldn't write a bill regulating breast feeding that wouldn't pass constitutional muster?
Yes, my point exactly, which exposes the flaw behind Wickard.
The constitutional authority is to Regulate Commerce among the States, but Wickard morphed that into regulating That Which Affects Commerce anywhere. By logical application of Wickard via Gonzales, a product (marijuana) went nowhere but directly from the planter to the user, directly affecting nobody else, but Indirectly affecting Commerce because somebody might have wanted to sell to the user. The Wickard standard of "affecting commerce" subjects the entirety of human interaction to Congressional regulation, which is, of course, absurd. The restriction of authority over only Commerce among the States no longer exists because of Wickard. we'll see, after National Federation of Independent Business v. Sebelius and Florida v. Department of Health and Human Services later this year.
I think that the Federalist Papers touched on the arguments that led to the Bill of Rights and especially the 9th.
Those opposed to the ratification of the Constitution argued that it wasn't constraining enough, that its enumerated powers would expand over time. Hamilton et al argued that oh no, the federal government would do just what the constitution required it to do and no more. Hamilton and the Federalists lost that argument, of course, or at least decided to compromise, and the first 10 amendments were added as a result. Since they couldn't decided to include ALL the rights given to free men in one list, the 9th seems a way to includes others not otherwise specified but otherwise further restraining the expansion of the new central government. I agree with your goal of actually LIMITING the power of the federal government, but it seems to me that the 10th Amendment is the one that will accomplish this goal.
Here's the text: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Seems pretty clear to me. Wickard v Filburn, and subsequent rulings, expanded the Commerce Clause to allow the federal govt to legislate on, quite literally, anything. As a result, the 10th Amendment was judicially (ie. unconstitutionally) overturned. The 9th Amendment, on the other hand: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. " This basically says that there are Civil Rights that are not specifically listed in the Constitution. This is a judicial activists' wet dream of an Amendment. It gives them carte blanche to invent, willy nilly, any new 'right' they please. This is NOT an amendment that can be used to rein in excessive government power. Rather, if used, it would most likely be used by activist judges to legislate from the bench their personal preferences on social issues (abortion, gay marriage, etc, etc, etc.). Bruce,
I was rummaging around Maggie's looking for another old post when I stumbled on this beaut. In light of the recent NSA situation, I thought this was an intriguing read because privacy 'rights' are tied up almost entirely in this Amendment (thought several others play a role). The problem with privacy (and any other right which may fall under protection of the Ninth Amendment) is the lack of specificity which you mention (via Bork), and the fact that privacy remains only a 'right' insofar as how far various SCOTUS opinions can take it. There have been several dissents which have clearly stated there is no right to privacy in the Constitution, and this remains a staple of language among politicians and even lawyers (I hear it every time I'm in the Legal Department reviewing operational procedures, though this is not their guiding principle, just a standard statement of fact to frame the discussion). But the Ninth Amendment was clearly written for just such a right as 'privacy', which is nowhere clearly and directly addressed by the founding fathers (and I don't buy the argument that they used different words for it back in the day). I will disagree with your comment that use of the Ninth Amendment would have bolstered opposition to the ACA, since it could just as easily be argued "everybody has a right to access to health care, which is only impeded due to lack of access to insurance", and that may be a counterbalance the to the use you were suggesting above. The problem, of course, is that the whole of the Constitution actually protected citizens clearly and properly, and the addition of the Bill of Rights was a muddled affair, with some opposing it because they felt the Constitution itself went far enough (it probably did) and getting specific would open the door to government abuse (which is clear it has, though there is no way to tell if this would have happened without the Bill of Rights....better to have them than not, in my opinion, since most humans do get very literal). It's astounding to me that the Constitution is designed to protect citizens from government by limiting government, but the entire history of our nation has been to seek to expand government (particularly since the end of the Civil War) influence in our lives. We believe government can keep us safe from terrorists by letting them spy on us 'because we have nothing to hide'. But the Boston bombers, in a plot designed perfectly to be caught by such spying, were still moderately successful. We believe the government can keep us healthy by offering us access to health care. But never mind the cost and the fact that a simple review of other nations shows reduced access when the government is involved, rather than increased access. We believe all that matters is having the 'right' people in charge and giving them the 'right' powers, and the world will become a beautiful place, without thinking that the wolf will appear in a sheep's skin, and the 'right' powers will be put to use against ourselves in order to protect us 'better'. Thomas Paine said "An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself." He understood unintended consequences quite well. |
Tracked: May 11, 05:35
Tracked: May 11, 05:35
Tracked: May 11, 05:35
Tracked: May 11, 05:36
Tracked: May 11, 05:36
Tracked: May 11, 05:36
Tracked: May 11, 05:36