Hey DMB,
I hope you don't mind if I make a comment or two...
DMB
Further, this same idea was latter built into the Constitution. The
amendment process itself is an open door for the evolution of rights.
Finally, the 9th amendment explicitly tears that door off its hinges... "The
enumeration in the constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people." Article IX
RICK
I think you're clearly correct in asserting that the constitutional
amendment process was the framers way of leaving the door open for the
evolution of rights. However, you should know that your interpretation of
the 9th amendment is hotly disputed by many legal scholars.
The Bill of Rights was assembled by Madison from suggestions of the
legislatures of all States (and, of course, his own ideas). These
suggestions (which have been published in dozens of books on Madison and the
Constitution) contain several '9th amendments' which resemble the one
Madison actually included. Exactly what Madison intended the final product
to mean is a mystery lost to the ages. One popular view is that the 9th was
included only to undermine politically powerful anti-federalists who tried
to block ratification of the Bill of Rights by arguing that enumerating some
rights and not others would be tantamount to shedding the unenumerated
rights.
Currently, there are two basic schools of thought:
School #1 is the position you put forth above. It's a quite reasonable
interpretation that espouses the view that the 9th amendment was intended to
leave the door open for the enumeration of NEW rights.
School #2 would point out that the plain text of the amendment protects
only 'rights retained by the people'. That is, it does not pronounce on or
protect any NEW rights, only on UNENUMERATED rights already retained by the
people under the Common Law at the time of the framing of the amendment.
This school would point out that interpreting the amendment as School #1
does makes the amendment process a cumbersome redundancy since any NEW
constitutional rights would be recognizable under the 9th amendment. It
would also point out that this interpretation would make the amendment a
perfect answer to the concerns of the anti-federalists at the time of the
framing.
The US Supreme Court currently endorses school #2. To win on a 9th
amendment claim one must show that the right being advocated was one
retained by the American People under the Common Law in 1776 (one exception
is recognized where the 9th amendment is said to protect rights 'essential
to the functioning of an adversarial system of justice'--- but it has only
very rarely been successfully argued).
Personally, I'm with School #2 also. I think interpreting the 9th to be
a source of NEW rights would make the Constitution TOO Dynamic. Such an
interpretation would be to make the Constitution itself subject to explicit
legislative/judicial rewriting without having to go through the amendment
process. But the amendment process is SUPPOSED to be cumbersome... A
Constitution is supposed to be mostly Static.
The framers wanted it to be hard to change the Constitution and to see
why one need look no further than their own state constitution. State
constitutions are notoriously easy to amend and as such their amendments
usually number in the hundreds (sometimes in the thousands). Many states
include such trivialities as parking codes and littering laws in their
constitutions. The Federal Constitution has only 27 amendments after over
200 years. According to a textbook I own, as of 1995 the Constitutions of
the 50 states contained over 6000 amendments.
A constitution so easily and frequently changed isn't much of a
Constitution at all.
alright... nuff said
rick
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