If the Right Doesn't Like the Right to Privacy.... Let THEM Repeal the 9th

[ZombieGak]

In a recent web discussion about strategies to protect unenumerated constitutional rights such as privacy and the right to choose, someone suggested the Democrats should advocate amendments to guarantee these rights.

I could not disagree more.

Even if some amendments managed to be ratified, there will be an endless list of other rights the radical Right would try to restrict. Even the concept of one person/one vote is under attack!

As if the current Democratic strategy isn't already on shaky ground, this amendment proposal perpetuates a defensive posture and dooms the Democrats to endlessly pursue amendment after amendment. If they don't... and if Griswold or Roe are overturned... what's the fallback position to guarantee these rights on the FEDERAL level? There is none. The issues will revert to the states resulting in a patchwork of conflicting laws.

Democrats are making a strategic blunder of monumental proportions by basing their arguments on stare decisis... previous court rulings. They need to aggressively reframe the debate and this requires going on the offense to find in the Constitution a broader source of rights as the REAL legal basis for the right to privacy and the right to choose.

I believe the Democrats and their political allies should dust off that long-ignored, but all important, ninth amendment which says:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Rightly the 9th is the REAL basis for such basic but unenumerated rights as privacy and the right to choose. This should NOT be that difficult a case to make given what James Madison wrote about the intent of this amendment. I posted his thoughts in the previous blog article.

Yes these unenumerated rights are largely in the minds of the beholder which may be why the Democrats historically have avoided the 9th. But given how our system delegates powers from the People to the states and federal governments... and how the 9th guarantees rights are retained by the People... then it's clear Original Intent placed the burden of proof on GOVERNMENT to find a legal justification to restrict rights... not for the PEOPLE to constantly fight for rights that government never should have restricted in the first place.

In politics conceiving a good offense is just the start. The Right MUST be effectively put on the defensive. My suggestion... by insisting the right to privacy or to the right to chose are already protected not by court rulings but by the Bill of Rights itself, Democrats should stake out a position and coordinate talking points that if the Right opposes these unenumerated rights, their ONLY constitutional option is to repeal the 9th amendment.

[BootinUp]

1. Good strategy I agree K&R

[ZombieGak]

2. I don't see any downside to this strategy... do you?

It accomplishes several goals... it get's the Dems out of the trap they've created for themselves. It reframes the debate along common sense line most might agree with. It might serve as a wedge issue pitting the social conservative Right that wants to restrict rights against those on the Right who see themselves as defenders of the Constitution. And generally pulls the plug from the Right's position and puts them on the defensive. Now they won't give up quietly but now they be arguing that the 9th doesn't mean anything... and that's a lot more risky that arguing that stare decisis can be reversed.

I think if there's any downside it's that the Dems will have to confront their own hostility to the 9th and the very concept of unenumerated rights.

[BootinUp]

3. So what are reasons

Dems don't feel comfortable with the ninth in your opinion?

[ZombieGak]

4. it's too tempting for politicians to restrict rights

My main reason for suspecting the Dems have no use for the ninth is because even when it could work in their favor... they never use it as an argument as the gun nuts do the 2ed.

Why don't the Dems strongly defend the 9th? I think, in part, it's because it's easier to comprehend an enumerated right than it is an unenumerated one... even though our system is based on the People delegating powers to government... not surrendering all their rights. It may be that over time it was easier to just assume only eneumerated rights counted... or as some Right winger told me... no one needed any more rights then existed in the 1790s. But... ignored or not, the 9th amendment must mean something else it would not be there.

I think long ago politicians of all stripes also realized, for whatever reason, that it was easier to write bad law that that exceeded the law's intent than to craft good that focused on a legitimate social issue. Sometimes political pressures mount and no side wants to appear soft on crime, drugs, teen drinking, whatever. They had immunity to pass Draconian laws knowing full well they would stand unless struck down by a court.

[ieoeja]

6. Two in a row.

I was just going to post to say that I agree with you wholeheartedly on the 9th Amendment (and 10th, for that matter) versus Everything Conservative. Would like to add that I agree with you on your take on why politicians of any stripe shy away from the 9th.

Take the current imperial presidency established to counteract the threat of full scale nuclear war. It makes perfect sense that Mutual Assured Destruction only works if the president can react immediately to a massive missile launch against the country. If s/he requires a formal declaration of war, then in such an event we would all be dead before we could retaliate.

However, the presidency only needs that sort of power for that one scenario. But that hasn't stopped the granting of all sorts of extra-constitutional powers to the presidency. The War Powers Act, for instance, which most people seem to see as limiting presidential powers actually authorizes any president to invade any country any time s/he decides so long as s/he seeks congressional authority within 3 days AFTER THE FACT.

And we do this because every legislator in Washington dreams of the day s/he will be president, and will want all that power at his/her disposal.

[ZombieGak]

7. not sure what you're saying...

You wrote: "I was just going to post to say that I agree with you wholeheartedly on the 9th Amendment (and 10th, for that matter) versus Everything Conservative."

While I was not intending to discuss the 10th here... are you suggesting that Conservatives generally have had no use for the 10th? As the source of state rights it seems many older style conservatives have loved the 10th. I'm reminded of Reagan's new federalism and the devolution of federal power back to the states. It just seems that many of the NEWER radical social conservatives have sought to have the federal government interfere with states when it comes to the right to choose, the right to die, etc.

[ieoeja]

8. Read the 10th.

"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."


Check out those last four words, "or to the people". Conservatives conveniently ignore that portion of the 10th Amendment which reinforces the 9th Amendment. There are three sides to every debate on the correct application of the 10th Amendment. Those sides are:

o Federal Powers
o State Powers
o Civil Rights (i.e. the people)

Now consider the Conservative versus Liberal positions on 10th Amendment issues...

On the Voting Rights Act, desegration, affirmative action, women's rights, Gay rights, freedom of speech issues, and (by self definition) Civil Rights the Liberals are using Federal Power to protect Civil Rights. If those rights are constitutional, then the Liberal position is constitutional.

Conversely, when Conservatives claim Federal Powers supercede States Powers in cases like Assisted Suicide, Medical Marijuana, etc the CONS are opposing rights of the individual and simultaneously attacking States Powers. They have no constitutional grounds on which to base their argument in those issues.

So, no, Conservatives are NOT the defenders of the 10th Amendment. They cherry-pick the words within the 10th Amendment and spin to make it sound like they are.

[ZombieGak]

9. got ya

Though I see the 9th and the primary source in protecting unenumerated rights... the 10th deals with delegated powers.... though one can make a case that this protects the rights to maintain those powers. Curiously that "Originalist" Scalia believes the federal government is not limited to areas it's authorized to operate in. He believes the fed can do anything not prohibited.

As for Dems, it's not as if Dems recognize all rights either. I'd argue that their dedication to unenumerated rights is in direct proportion to the strength of a constituency group in the Democratic coalition. For instance the 9th would seem to protect responsible drug use and requires government to craft laws that do not exceed legitimate intent. But where are the Dems on this issue?

[ZombieGak]

5. Madison on the Bill of Rights

As to history of the Bill of Rights and particularly the 9th, James Madison, who might know a thing or two about the original intent, wrote:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

SOURCE: www.usconstitution.net/madisonbor.html#Sec5

"Madison wrote in a letter to Jefferson explaining why he didn't at first believe the omission of a Bill of Rights in the original Constitution was of much consequence:

"I have not viewed it in an important light --
1. because I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted."

SOURCE: http://www.constitution.org/jm/17881017_bor.txt

He believed that it was in the very nature of the Constitution a clear contract between government and the "People" that government only had limited powers and the People retained all other rights.

[radio4progressives]

10. You have a Good Point..

The Ninth Amendment is rarely if ever heard cited in any case...

Amendment IX

The enmeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people

but is it cancelled out in Amendment X?

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

Isn't this a States Rights argumment?

[ZombieGak]

11. is the 9th canceled out by 10th?

No more than any of the other enumerated rights would be. It's really a bastardization of the Constitution to realize the ninth was included to make the clear point that the enumerated rights were NOT meant to be an exhaustive list... then to see politicians of all strips just ignore the ninth.

[radio4progressives]

12. LOL .. another good point.. eom

[ZombieGak]

13. here's a good discussion about the 9th

http://caselaw.lp.findlaw.com/data/constitution/amendment09/

It starts:

"Rights Retained by the People
Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those."

I think it's a mistake to put so much stake in the USSC idea that there are implied penumbral rights needed to make enumerated rights meaningful just as it's a mistake for Dems to place all their eggs in the Stare Decisis basket. Both approaches undercut the Ninth which is unambiguous in its intent.