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The "Silent" Ninth Amendment of the Constitution


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lotuseclat79's Avatar
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24-Apr-2007, 11:53 AM #1
The "Silent" Ninth Amendment of the Constitution
Article here. (4 webpages)

The ninth amendment of the Constitution of the U.S. reads:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others tetained by the people."

The first Amendment right of free speech and the Fifth Amendment right to avoid self-incrimination are well known, but the Ninth Amendment is ignored. Pity, because it bears directly on abortion, the right to die, and gay rights.

The history of the Constitution reveals the purpose of the Ninth and the Founders' intent: to protect what constitutional lawyers call unenumerated rights -- those rights the Founder assumed and felt no need to specify in the Bill of Rights. Unenumerated rights include, for example, the right to privacy.

Daniel A. Farber, a law professor at the University of California at Berkeley, has written a new book entitled: Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have, ISBN-10: 0465022987, ISBN-13: 978-0465022984.

Book Description
An original and wide-ranging argument for an overlooked part of the Constitution--the "subversive" Ninth Amendment--and why it is crucially important.

The Ninth Amendment lurks like an unexploded mine within the Bill of Rights. Its wording is direct: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." However, there is not a single Supreme Court decision based on it. Even the famously ambitious Warren Court preferred to rely on the weaker support of the Fourteenth Amendment's Due Process Clause for many of its decisions on individual rights. Since that era, mainstream conservatives have grown actively hostile to the very mention of the Ninth Amendment.

Farber makes an informed and lucid argument for employing the Ninth Amendment in support of a large variety of rights whose constitutional basis is now shaky. The case he makes for the application of this unused amendment has profound implications in almost every aspect of our daily lives.

From Publishers Weekly
Farber, a constitutional law professor at the UC-Berkeley law school (Desperately Seeking Certainty), challenges the Supreme Court's current jurisprudence regarding "fundamental rights," arguing that rather than relying on the Constitution's due process clause, these rights—which touch on many controversial issues like abortion, consensual sex, gay marriage and the right to die—would better be supported by the Ninth Amendment. That amendment says that the enumeration of certain rights in the Constitution "shall not be construed to deny or disparage others retained by the people." Farber deals with the tricky question of what rights are fundamental (he concludes there is a right to terminate unwanted medical intervention but not a right to assisted suicide) and the legal basis for such rights. He also makes lucid and convincing criticisms of particular Supreme Court approaches in abortion rights, for instance. This is potentially an important book that offers a new approach to how courts should interpret the Constitution when balancing fundamental individual rights against government incursions, an approach Farber believes will hold up better to challenges than a due-process approach. Farber writes well for the general public and succeeds in building a case that will resonate with both liberals and populist-conservatives.

-- Tom
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24-Apr-2007, 08:45 PM #2
Quote:
Originally Posted by lotuseclat79
The history of the Constitution reveals the purpose of the Ninth and the Founders' intent: to protect what constitutional lawyers call unenumerated rights -- those rights the Founder assumed and felt no need to specify in the Bill of Rights. Unenumerated rights include, for example, the right to privacy.
No that is what liberals and liberal judges came up with: "unenumerated rights". Meaning ones that don't exist, ones created out of whole cloth for the purpose of advancing a liberal agenda. Made up law.
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25-Apr-2007, 01:15 AM #3
Quote:
Originally Posted by lotuseclat79
The history of the Constitution reveals the purpose of the Ninth and the Founders' intent: to protect what constitutional lawyers call unenumerated rights -- those rights the Founder assumed and felt no need to specify in the Bill of Rights. Unenumerated rights include, for example, the right to privacy.
No--that interpretation is the exact opposite of what was the original intent of that Amendment. This states is succintly:

Quote:
It is clear from its text and from Madison's statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.
http://caselaw.lp.findlaw.com/data/c...n/amendment09/

The Ninth Amendment was barely ever mentioned until fairly recently when liberals on the court decided that instead of it serving as a restraint on the exercise of federal power, it really meant they were free to "invent" whatever "right" they believed the Constitution guaranteed (or more correctly--what they wanted the Constitution to guarantee).
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25-Apr-2007, 02:00 AM #4
Quote:
Originally Posted by lotuseclat79
Article here. (4 webpages)

The ninth amendment of the Constitution of the U.S. reads:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others tetained by the people."

The first Amendment right of free speech and the Fifth Amendment right to avoid self-incrimination are well known, but the Ninth Amendment is ignored. Pity, because it bears directly on abortion, the right to die, and gay rights.

The history of the Constitution reveals the purpose of the Ninth and the Founders' intent: to protect what constitutional lawyers call unenumerated rights -- those rights the Founder assumed and felt no need to specify in the Bill of Rights. Unenumerated rights include, for example, the right to privacy.

Daniel A. Farber, a law professor at the University of California at Berkeley, has written a new book entitled: Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have, ISBN-10: 0465022987, ISBN-13: 978-0465022984.

Book Description
An original and wide-ranging argument for an overlooked part of the Constitution--the "subversive" Ninth Amendment--and why it is crucially important.

The Ninth Amendment lurks like an unexploded mine within the Bill of Rights. Its wording is direct: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." However, there is not a single Supreme Court decision based on it. Even the famously ambitious Warren Court preferred to rely on the weaker support of the Fourteenth Amendment's Due Process Clause for many of its decisions on individual rights. Since that era, mainstream conservatives have grown actively hostile to the very mention of the Ninth Amendment.

Farber makes an informed and lucid argument for employing the Ninth Amendment in support of a large variety of rights whose constitutional basis is now shaky. The case he makes for the application of this unused amendment has profound implications in almost every aspect of our daily lives.

From Publishers Weekly
Farber, a constitutional law professor at the UC-Berkeley law school (Desperately Seeking Certainty), challenges the Supreme Court's current jurisprudence regarding "fundamental rights," arguing that rather than relying on the Constitution's due process clause, these rights—which touch on many controversial issues like abortion, consensual sex, gay marriage and the right to die—would better be supported by the Ninth Amendment. That amendment says that the enumeration of certain rights in the Constitution "shall not be construed to deny or disparage others retained by the people." Farber deals with the tricky question of what rights are fundamental (he concludes there is a right to terminate unwanted medical intervention but not a right to assisted suicide) and the legal basis for such rights. He also makes lucid and convincing criticisms of particular Supreme Court approaches in abortion rights, for instance. This is potentially an important book that offers a new approach to how courts should interpret the Constitution when balancing fundamental individual rights against government incursions, an approach Farber believes will hold up better to challenges than a due-process approach. Farber writes well for the general public and succeeds in building a case that will resonate with both liberals and populist-conservatives.

-- Tom

Good post!

Likethe Right Wing likes to say, "education is too important to be left to educators", our rights are too important to be left to lawyers!
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25-Apr-2007, 02:08 AM #5
Quote:
Originally Posted by bassetman
Good post!

Likethe Right Wing likes to say, "education is too important to be left to educators", our rights are too important to be left to lawyers!
LOL! The judges that interpret the Constitution are all lawyers!!!
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25-Apr-2007, 03:25 AM #6
Quote:
Originally Posted by Mulder
LOL! The judges that interpret the Constitution are all lawyers!!!

They don't have to be. but, are, and I see you got the point!
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25-Apr-2007, 07:45 AM #7
Quote:
Originally Posted by gbrumb
No that is what liberals and liberal judges came up with: "unenumerated rights". Meaning ones that don't exist, ones created out of whole cloth for the purpose of advancing a liberal agenda. Made up law.
Hi gbrumb,

Despite what you would like to believe, the 9th Amendment was specifically included by our founders because "unenumerated rights" were in 1791 believed to in fact exist - no question.

Even Mulder, despite his right-wing leanings would have to agree (but only if he could put his partisan leanings aside for the good of the American people - uh, we'll give him the benefit of the doubt), and gbrumb, if you are also a lawyer, your belief predominates your understanding of law and the Constitution. Your assertion that "unenumerated rights" don't exist would be found false in front of the Supreme Court. The Supreme Court is sworn to protect our Constitution as is our POTUS. While the POTUS might agree with you and see your "false assertion", the Supreme Court would not - despite their being lawyers and the last word on the Constitution.

As everyone knows, the Supreme Court's pendulum of decisions can swing either right or left given the demands of the American populace vs the makeup of the court (right-middle-left). Upon discovering the book, it seemed a worthy topic of discussion in CD. As such, the author of the book issues a broadside to everyone. The question for the future is how will "unenumerated rights" as embodied by the 9th Amendment become canonized in legal decisions and become law. Given the current makeup of the Supreme Court, what's the probability that the Supreme Court would side with your point of view? I would give it a better than even chance at this point it time. However, laws based on the 9th Amendment could see the light of day in State legislatures, and only after the time it takes for a challenge to those laws would the Supreme Court ever see such a challenge to the 9th Amendment.

In the case where a change would be made to the 9th Amendment presumably to clarify it or remove it from the Constitution, regardless of which of two proposal routes is taken, the amendment must be ratified, or approved, by three-fourths of states.

-- Tom

P.S. All laws are "made up law" - by legislatures.
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25-Apr-2007, 08:04 AM #8
Quote:
Originally Posted by bassetman
They don't have to be. but, are, and I see you got the point!
But did you get the point?? Do you ever get the point??
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25-Apr-2007, 01:36 PM #9
Quote:
Originally Posted by TooBad
But did you get the point?? Do you ever get the point??

More often then you'll ever know!
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25-Apr-2007, 02:13 PM #10
Looks like one could pick this apart for intent have differing ideas but clearly one reason this was put into the Bill of Rights was to curtail the federal government from over reaching. sadly that has been an utter failure. We should remove States from the labeling of our country and just say it is the United Socialist Pseudo Society. Makes me think at times I wish the south had won the war.


source: Wiki http://en.wikipedia.org/wiki/Ninth_A...s_Constitution
Quote:
Like Hamilton, Madison was concerned that enumerating various rights could "enlarge the powers delegated by the constitution". Id. Here is the draft of the Ninth Amendment that Madison submitted to Congress in order to solve this problem:

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution. Id.
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25-Apr-2007, 03:09 PM #11
Quote:
Originally Posted by lotuseclat79
As everyone knows, the Supreme Court's pendulum of decisions can swing either right or left given the demands of the American populace
That's exactly what is NOT supposed to happen. The justices are appointed for life specifically so that the people can't exert influence on them (i.e., lobby for their removal if they make decisions that aren't popular).
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25-Apr-2007, 03:11 PM #12
Quote:
Originally Posted by lotuseclat79
The question for the future is how will "unenumerated rights" as embodied by the 9th Amendment become canonized in legal decisions and become law.
No, no, no, no--that's a completely leftist view. The Justices are not supposed to make law, they are supposed to interpret law. If the country wants to give people rights that are not enumerated in the Constitution it can do so by way of the legislators--that's the way its supposed to be done--its not supposed to be done by judges. The judges than look at the laws and say, "do these violated someone's enumerated rights in the Constiution", NOT, "we think people should have this right even though the legislators don't think so!" Do you see the difference? Judges should not be making up rights because then where is the limitation on their power? How do we stop 5 judges from inventing a right that does not exist? . This is what you don't realize or how dangerous it is.
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25-Apr-2007, 03:26 PM #13
Quote:
Originally Posted by Mulder
That's exactly what is NOT supposed to happen. The justices are appointed for life specifically so that the people can't exert influence on them (i.e., lobby for their removal if they make decisions that aren't popular).
Hi Mulder,

I actually agree with you on that point - but, we both know that is not how reality works!

-- Tom
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25-Apr-2007, 03:33 PM #14
Quote:
Originally Posted by Mulder
No, no, no, no--that's a completely leftist view. The Justices are not supposed to make law, they are supposed to interpret law. If the country wants to give people rights that are not enumerated in the Constitution it can do so by way of the legislators--that's the way its supposed to be done--its not supposed to be done by judges. The judges than look at the laws and say, "do these violated someone's enumerated rights in the Constiution", NOT, "we think people should have this right even though the legislators don't think so!" Do you see the difference? Judges should not be making up rights because then where is the limitation on their power? How do we stop 5 judges from inventing a right that does not exist? . This is what you don't realize or how dangerous it is.
Now Mulder, keep your shirtail tucked or you might get a wedgy from all of your posts.

No implication was made that the Justices of the Supreme Courtor any judges are supposed to make law. Indeed, they do interpret law as you say.

Your interpretation of what was implied by my words is a gross distortion of your righty-tighty pov - and, I have to keep telling you - I am an Independent, not a lilberal!

My interpretation of what I said was that in order for any legislation based on the 9th Amendment to get to the Supreme Court it would have to go through the existing judicial process of legislation first and be challenged in the courts - you dummy!

-- Tom
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25-Apr-2007, 09:22 PM #15
Quote:
Originally Posted by lotuseclat79
Even Mulder, despite his right-wing leanings would have to agree (but only if he could put his partisan leanings aside for the good of the American people - uh, we'll give him the benefit of the doubt), and gbrumb, if you are also a lawyer, your belief predominates your understanding of law and the Constitution. Your assertion that "unenumerated rights" don't exist would be found false in front of the Supreme Court. The Supreme Court is sworn to protect our Constitution as is our POTUS. While the POTUS might agree with you and see your "false assertion", the Supreme Court would not - despite their being lawyers and the last word on the Constitution.
I suggest that you read some of the writings of Scalia who states that these "unenumerated rights" don't exist. The fact that a previous Supreme Court found these rights doesn't mean there not subject to later "clarification" by subsequent Courts. Also consider the power you put in these individuals, I should say unelected individuals who can "create" a right which never existed before and can find nio real support in the Constitution. By way of example, what if the Court found that the right to privacy included the right for men to have sexual relations with children. That all laws that punished such behavior are unconstitutional. Its that type of unfettered power the Court claims to have when it can "discover" new rights that don't exist.
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Last edited by GoneForNow; 25-Apr-2007 at 10:14 PM..
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