Does The 9th Amendment Protect RESPONSIBLE Drug Use?

[ulTRAX]

I personally believe that people should have the right to do anything that doesn't harm others. This does not mean I define "harm" in narrow terms. Pollution or second hand smoke would qualify as harm in my book.

Therefore I believe that any law that exceeds legitimate intent... where there is no compelling state interest, to be an abuse of state power.

We all know politicians are a lazy lot frequently writing bad laws which take away rights from individuals or groups that are NOT causing any social problem. For instance about 10 years my state, in attempt to get young men from killing themselves driving drunk they simply raised the drinking age from 18 to 21. Groups who were not even part of the problem were caught in the net... those who drink responsibly and don't drive, young women, etc. If the problem was drunk driving then THAT behavior should have been targeted thus covering ALL age groups. We saw how politicians, fearing that they would be accused on being soft on drug use, got into a blood frenzy writing scorched-earth laws that raise penalties beyond all reason. The high penalties against crack vs. ordinary cocaine are good examples. So are the draconian drug laws in NY instituted by the "liberal" Nelson Rockefeller back in 1973.

In the Constitution is that forgotten 9th amendment that the states insisted be written into the Constitution: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." There's some overlap
with the 10th. Here's a discussion of it:
http://caselaw.lp.findlaw.com/data/constitution/amendment09/index.html

Probably the most famous case involving the 9th is Griswold v Connecticut in which restrictions against birth control were found unconstitutional.

It seems clear that the original intent of this amendment was to uphold John Locke's doctrine of natural rights... that rights exist as a state of being (minus slaves, of course), and government must have some legitimate intent before restricting them. Here's a source: http://radicalacademy.com/lockebio.htm I don't know if it's the best discussion. Here's an additional contemporary source on how natural rights were viewed by the French in 1789: http://www.yale.edu/lawweb/avalon/rightsof.htm If you've never read
the Rights of Man... do yourself a favor. It builds a much more reasoned argument about rights than is in our Constitution. For instance:

"4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law."

While the American Left just seems to ignore the 9th, Orwellian Neanderthals such as Scalia go further. He has turned the Constitution on its head claiming there are no rights that are not enumerated... and government can do anything not prohibited.

Whoa!

It's not clear to me just why the 9th seems to be a forgotten amendment. It's really something to cherish. I can only suspect that both sides of our limited political spectrum fear it would open up a Pandora's Box.

For instance, are scorched-earth laws written by Neanderthal or lazy politicians that unjustly restrict the rights of responsible citizens unconstitutional? Can a case be made that the 9th REQUIRES laws to be written in ways that CLEARLY STATE LEGITIMATE INTENT, target ONLY a well-defined problem, and in ways that maximize the freedoms of responsible people? Should citizens have the right to sue politicians for "political malpractice" if they willfully push for laws that violate this standard?

Which brings me to my question: does the 9th protect responsible drug use?

[skids]

1. Wrong SCOTUS to bring it in front of.

A case might be made, but you wouldn't want it heard by the current (and likely, the future) docket.

Drug law reform is making progress, but not through philosophical arguments. As is typical, money talks, and with current state budget deficits, several decrim bills are making it much further based on the cost savings of removing some of the more draconian and counterproductive laws.

What holds this back to some extent is blackmail by the federal government: often things like federal contributions to highway funding are tied to compliance with federal drug laws in one way or another. Decrimilize drugs, lose your federal pork.

[ulTRAX]

3. you pose a chicken and egg example

Yes, current laws may link federal aid to things like a state's drinking age etc. But this is a chicken and egg situation. Obviously the 9th was never used to protect responsible drug use in those days BEFORE the anti-drug laws became so Draconian.

I am interested in why those deeper philosophical arguments about the 9th are seemingly absent from public discourse. All we usually hear about are the enumerated rights. (I'll have to look into the ACLU's position)

Bork considers the 9th an inkblot on the Constitution. Scalia's intellectual dishonesty is appalling. But where is the rest of the nation?

Given the difficulty of passing amendments, the 9th is anything but an inkblot.

It reminds me of a pharaoh's name being chiseled from the temples.

It's all rather Orwellian.

[jobycom]

2. Good, but you'll have to explain further

Just what right are you saying that drug use falls under? Privacy? Pursuit of happiness? Etc.

Drug use is not a right, it's an action, just as bathing or kissing or blowing up toads with firecrackers. (I'm not a lawyer, just philosophizing. If a legal expert says I'm wrong here, I probably am.) According to points 4 and 5 of Locke, laws can restrict an action if it is hurtful to society, and natural rights have no limits except those which interfere with other people's rights. It would be hard to argue that bathing or kissing hurts society or interferes with other rights in and of themselves. Bathing in a public fountain, or kissing someone who doesn't want to be kissed, could be a different story. So it isn't the action by itself, it's how the action affects society, and whether it falls under a protected right.

So you'd have to be clear what right you are claiming "responsible drug use" falls under, and you'd also have to prove that society is not harmed as much by this action as by violating that right. We all know we can't express ourselves in ways that kill people, no matter what the First Amendment says. ("Fire" in a theater, etc.). Actions can be outlawed, even if they fall under protected rights, if those actions violate other people's rights.

On drug use specifically, the argument is that drugs hurt society in a number of ways: increase violent behavior, cause dangerous driving habits, whatever. A further argument is that since drugs are addicting, they affect a person's right to choose whether they will do drugs. I'm sure I could think of a few more. What you'd have to demonstrate, it seems to me, is that a person CAN use drugs responsibly, in a way that does not endanger the rights of others or society in general. And you'd have to define which right is being violated by these laws.

That's my take. Good points you make. I'm on your side, and I wouldn't use drugs if they were legal. You are clearly on the right path.

One point, on whether you can sue the government for malpractice-- there is a better method. Laws can be appealed through criminal courts. If you can get before a court with your points, and have a good lawyer establish a precedent history that defends you, or at least doesn't sink you, then you could make that argument before someone who has the power to do something.

Pretty damn cool nation we live in, when it works.

[ulTRAX]

4. that's why I cited RESPONSIBLE drug use

Yes, an argument can be made that ANY drug use poses a risk to society. But history should prove it's an intellectually dishonest argument. Much of the crime associated with drugs may not be inherent in the business, but a byproduct of government prohibition.

But what of the other social costs?

What needs to be targeted are NOT responsible drug users who may enjoy a joint at home... but those who are IRRESPONSIBLE drug users. Hell, I don't want anyone high on pot at the wheel of a car. I don't want kids smoking pot and skipping school. I don't want anyone stealing old lady's pocketbooks or doing B&Es to pay for drugs.

What I was suggesting was a balance between maximizing freedoms for responsible adults.... while targeting that which DOES pose an actual danger to society.

How can this be accomplished?

How is it done with guns and alcohol? There might be age imitations. There could be a permit granted after someone is screened. There can be high penalties if someone gives/sells pot to someone who's underage or does not have a permit. A high penalty if a crime is committed under the influence. If sales were legalized, pot could be taxed to cover social costs.

It doesn't seem that difficult a task to find a balance IF IF IF someone wants to.

Obviously politicians don't.

[jobycom]

5. That wasn't my point

I know what you meant by "responsible." My point is, the 9th Amendment talks about "rights" not "actions." Drug use is an action, not a right. That action might be covered under a right, but it isn't actually a right in itself. You have to figure out which rights are violated by drug laws. As in Roe v Wade, where abortion was defended under the right of privacy, or, though it was used wrongly, the Republicans voiding votes in Florida under the right to "Equal Protection." The right doesn't have to be explicitly spelled out in the Constitution, and that's where the 9th Amendment comes into play. But to defend drug use, or anything, under the 9th, you have to explain what right the anti-drug laws are violating.

As for the idea that most of the harm of drug use comes from it being illegal, yes and no. I agree that's what's happening. But the other side argues that drugs are criminalized to protect society from their ill effects, and then other laws have to be passed to enforce the anti-drug laws, and even though these other laws wouldn't exist if drugs were legal, the fact that drug use is illegal for other reasons justifies these other laws. I'm not saying I agree, just that you'd have to get around that argument.

[ulTRAX]

6. the ninth is to limit government power... not to restrict citizens

Jobycom wrote: "But to defend drug use, or anything, under the 9th, you have to explain what right the anti-drug laws are violating."

I don't agree. So under what enumerated right do we have the right to eat, sleep, marry, establish a business, get an education, etc?

Your approach is a slippery slope that places the burden of proof on citizens to prove they have non-enumerated rights. I remember someone from the Lung Association saying it was OK to prohibit smoking because there was no constitutional right to smoke. You have us working with a set number of enumerated rights upon which to build a case for subsidiary rights. Implicit in your argument is if rights are not enumerated then government has a right to restrict the actions of citizens.

You seem to be taking the side of those like Scalia who believe there are no constitutional protections for non-enumerated rights. New rights must be CREATED by new laws or amendments to the Constitution.

Am I understanding your position correctly?

I tend to agree with this author that the ninth is clear: to set restrictions on government's power.

"The Ninth Amendment to the Constitution does not specifically identify any individual rights like the eight amendments that precede it, rather the Ninth Amendment sets forth a rule of construction that is to guide one when interpreting the Constitution. It makes the drafter's intent clear that the enumeration of certain rights in the body of the Constitution or in the Amendments thereto shall not be considered to be exhaustive or all inclusive, but rather illustrative. Moreover, when read in conjunction with the Tenth Amendment the principal of individual sovereignty and a limited government of delegated powers is firmly established. Therefore the Ninth Amendment, when interpreted in accordance with the Tenth Amendment, should be read as establishing a rule of construction that demonstrates that the Constitution, as a whole, should be construed to mean that the people retain all powers (i.e. right or authority) not delegated to the United States by the Constitution nor delegated to their respective State governments by the several State Constitutions."
Source: http://web.archive.org/web/20040212084043/http://awlawfirm.com/Articles/9thAmendment.htm