Rick and all: Thanks for the response, Rick. I did some trimming for the
sake of brevity. hope its fairly clipped. New comments are below.
DMB invoked the 9th....
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 points out that...
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...
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).
DMB replies...
Right. I'm familiar with the strict constructionist school. Its associated
with the right, which is pretty well represented in the Supreme Court. The
logic of strict construction says we should take the vote away from women
and re-enslave everyone with a drop of African blood. Bigots love that
school of thought. You don't want to be hanging around those guys, do you?
Its absurd to talk about expansion of rights in terms of traditional rights
already in existence just in terms of logic. To talk about new rights by
going backward expansion is equally irrational. Its just wrong on so many
levels.
Rick wrote....
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.
DMB...
Huh? How does adding new articles to the bill of rights disrupt the
amendment process? That IS the amendment process. If there's a procedural
problem it is solved as such. A strait forward reading of the 9th amendment
does nothing to disrupt that intentionally cumbersome process. I don't think
its dynamic enough as far as adding rights. And the strict construtionist
reading makes this process completely static and undermines the whole
purpose of it. Its just wrong on so many levels.
I'm not just calling names here. I think its important to see the political
aims and motives behind these two schools. Like so many of the buzz words
and ideological weapons used by the right, this one shows a certain
hostility for rights. It reveals an anti-intellectual attitude even as it
poses as scholarship just as creation science is anti-scientific.
Pirsig's descriptions of the 4th code are demonstated over and over, that's
what makes it so useful. It works.
DMB
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