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Author Topic: How the 9th Amendment provides for mutable fundamental rights
Pete at Home
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http://www.ornery.org/cgi-bin/ubbcgi/ultimatebb.cgi?ubb=get_topic;f=6;t=014904

quote:
Originally posted by RickyB:
[Noel] "You do understand that case law is not synonymous with the U.S. Constitution?"

Rulings on case law become an extension of the constitution. They say "the highest authority in the land has determined that this part of the constitution means THIS".

The difference, of course, is that case law precedent is easier to reverse than the language of the constitution itself. Just get a different bench to rule otherwise and that ruling then becomes the reigning constitutional interpretation, binding upon lower courts.

"[Noel]: "The formula is correct, the question becomes; What rights are "immutable"?"

Actually, no. The ninth Amendment provides that

quote:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Reactionaries* might read this restrictively, e.g. to mean that only rights retained by the people in 1789 may be recognized.

*I say reactionaries, because of self-titled conservatives, only Robert Bork seems to interpret the 9th Amendment as restrictively as some so called Liberals interpret the 2nd Amendment!

But as (properly IMO) understood by the Supreme Court, the 9th provides that when rights become embedded in our traditions, that they may become constitutional rights.

For example, in the Dickerson (2000) decision, Chief Justice William Rehnquist wrote that Miranda warnings had "become embedded in routine police practice to the point where the warnings have become part of our national culture. This is significant, because Justice Rehnquist had opposed the original Miranda (1966) decision. And he had not changed his opinion about his original decision -- his opinion made clear that his new decision was based on traditions, perceptions, and norms that had developed since 1966.

But hopefully not as mutable as [URL=http://www.ornery.org/cgi-bin/ubbcgi/ultimatebb.cgi?ubb=get_topic;f=6;t=014904 ]the thread [/URL] that I took this discussion from!

[ June 24, 2011, 12:32 PM: Message edited by: Pete at Home ]

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JWatts
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quote:
Originally posted by Pete at Home:
But as (properly IMO) understood by the Supreme Court, the 9th provides that when rights become embedded in our traditions, that they may become constitutional rights.

Yes, they may, but that's where all the points of contention start. [Big Grin]

There are at least two criteria that affect this:

1) Does the 'new' right potentially conflict with an enumerated right? If so the enumerated right should always trump the 'new' right.

2) Is the 'new' right substantial in weight and have a substantial amount of popular support?

Clearly in the case of the Miranda ruling, the right had great effect and was nearly universally observed.

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Pete at Home
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quote:
Originally posted by JWatts:
quote:
Originally posted by Pete at Home:
But as (properly IMO) understood by the Supreme Court, the 9th provides that when rights become embedded in our traditions, that they may become constitutional rights.

Yes, they may, but that's where all the points of contention start. [Big Grin]

There are at least two criteria that affect this:

1) Does the 'new' right potentially conflict with an enumerated right? If so the enumerated right should always trump the 'new' right.

I strongly agree with you there, so long as we distinguish between a right (which pertains to the people) and a power (which pertains to the people). Otherwise, the commerce clause would allow the feds to impose a tax on breathing.

quote:
Originally posted by JWatts:
2) Is the 'new' right substantial in weight ... ?

I'm not sure what "substantial in weight" means in the context of a right, and am uncomfortable handing blank checks to those that would circumscribe rights.

quote:
and have a substantial amount of popular support
I'd say a substantial amount of popular recognition. Everyone knows it's there; though they might not "support" it. I like your "universally observed construction better:
quote:
Clearly in the case of the Miranda ruling, the right had great effect and was nearly universally observed.
Yep!

[ June 24, 2011, 02:52 PM: Message edited by: Pete at Home ]

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JWatts
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quote:
Originally posted by Pete at Home:
[QB]
quote:
Originally posted by JWatts:
There are at least two criteria that affect this:

1) Does the 'new' right potentially conflict with an enumerated right? If so the enumerated right should always trump the 'new' right.

I strongly agree with you there, so long as we distinguish between a right (which pertains to the people) and a power (which pertains to the people). Otherwise, the commerce clause would allow the feds to impose a tax on breathing.

The current administration is trying to regulate CO2 production and place a tax on not being sick. So yes this is a very good point.

quote:
Originally posted by Pete at Home:
quote:
Originally posted by JWatts:
2) Is the 'new' right substantial in weight ... ?[

I'm not sure what "substantial in weight" means in the context of a right, and am uncomfortable handing blank checks to those that would circumscribe rights.

Essentially I mean non-trivial. While, a 'right' to not mow your grass might be considered a Constitutional right, it's been generally considered a much lower level 'right', because the effects of such regulation have been slight.

But I concede trying to construct such practical differences in the various levels of 'rights' is probably hopeless.


quote:
Originally posted by Pete at Home:
quote:
and have a substantial amount of popular support
I'd say a substantial amount of popular recognition. Everyone knows it's there; though they might not "support" it. I like your "universally observed construction better.
Yes, popular support is probably too broad a term. I'll stick with nearly universally observed.
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Pete at Home
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Cool! We looks like we have a unanimous opinion of 2/2.

quote:
There are at least two criteria that affect whether a right has become embedded in our traditions and thus has become a fundamental constitutional right:

1) Does the 'new' right potentially conflict with an enumerated right of the people? If so the enumerated right should always trump the 'new' right.

2) Is the 'new' right non-trivial, and is it nearly universally observed?

Sounds good to me.
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Pete at Home
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quote:
[pete said]: as long as we distinguish between a right (which pertains to the people) and a power (which pertains to the people).
[pete meant]: as long as we distinguish between a right (which pertains to the people) and a power (which pertains to the government).
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hobsen
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quote:
For example, in the Dickerson (2000) decision, Chief Justice William Rehnquist wrote that Miranda warnings had "become embedded in routine police practice to the point where the warnings have become part of our national culture. This is significant, because Justice Rehnquist had opposed the original Miranda (1966) decision. And he had not changed his opinion about his original decision -- his opinion made clear that his new decision was based on traditions, perceptions, and norms that had developed since 1966.
This is a very interesting point of view, and makes good sense, as should perhaps be expected of someone who becomes Chief Justice.
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KidTokyo
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I think the original and intended meaning of the ninth amendment is simply that the enumerated rights are not to be construed as an exclusive list of rights. Unfortunately, I don't see how it can mean much more than that -- and Bork was right to call it an "inkblot."

That said, I have no problem with using it in the present era as Pete suggests. I do not consider the "original intent" of the (long deceased) authors to be binding on those currently engaged in the task of living.

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Pete at Home
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If we all agree on something else, then there's no problem with changing the constitution. But without some sort of anchor that causes meaning to persist, tossing completely aside the intent of those that originally voted on the constitution and its amendments, would be the same as tossing aside the constitution entirely for another form of government.

Most of the Supreme Court Justices who authored case-law on the constitution are also deceased, and some of them also owned or justified ownership of slaves. Shall we disregard their opinions as well? [Roll Eyes]

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KidTokyo
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quote:
But without some sort of anchor that causes meaning to persist, tossing completely aside the intent of those that originally voted on the constitution and its amendments, would be the same as tossing aside the constitution entirely for another form of government.
Obviously, I'm not arguing for "tossing completely aside" anything any more than those who are not originalists. The English language is an anchor, as is precedent. However, by the same token, the meaning has to be "anchored" in the needs of the present. We live in a drastically different society.

quote:
Most of the Supreme Court Justices who authored case-law on the constitution are also deceased, and some of them also owned or justified ownership of slaves. Shall we disregard their opinions as well?
I don't know why you leap to such an extreme. Who said anything about "disregarding?" There is value in studying the past. I just said that the opinions of those dead are not binding on the living, because the living have it within their power to find new meaning. Just stating the obvious, really.

[ June 26, 2011, 02:34 AM: Message edited by: KidTokyo ]

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RickyB
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"Most of the Supreme Court Justices who authored case-law on the constitution are also deceased, and some of them also owned or justified ownership of slaves. Shall we disregard their opinions as well?"

Their opinions on slavery? We do already. [Smile]

[ June 26, 2011, 02:57 AM: Message edited by: RickyB ]

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Pete at Home
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quote:
Originally posted by KidTokyo:
quote:
But without some sort of anchor that causes meaning to persist, tossing completely aside the intent of those that originally voted on the constitution and its amendments, would be the same as tossing aside the constitution entirely for another form of government.
Obviously, I'm not arguing for "tossing completely aside" anything any more than those who are not originalists. The English language is an anchor, as is precedent. However, by the same token, the meaning has to be "anchored" in the needs of the present. We live in a drastically different society.

quote:
Most of the Supreme Court Justices who authored case-law on the constitution are also deceased, and some of them also owned or justified ownership of slaves. Shall we disregard their opinions as well?
I don't know why you leap to such an extreme.

My apologies for not clearly distinguishing which part of what I said was a reply to what you said, to the part where I switched tracks and addressed the extreme point of view that Everard/PSRT recently articulated on another thread. I have actually heard the same view articulated by an appellate level judge -- in private, of course; he'd never say something like that on the record. [Frown]

quote:
Originally posted by RickyB:
"Most of the Supreme Court Justices who authored case-law on the constitution are also deceased, and some of them also owned or justified ownership of slaves. Shall we disregard their opinions as well?"

Their opinions on slavery? We do already. [Smile]

Yes, but there we've amended the constitution. We still maintain the late 19th century interpretation of the Privileges and Immunities clause, even though it's clear that the reactionary justices that wrote this opinion, did so in defense of Jim Crow, sharecropping, and the like. In that light, it would seem like hyporcisy for someone to say (not that you're saying that now) that we should disregard the opinions of those that voted to enact the Constitution or its amendments, because of their abhorrent views on slavery etc., without saying that we should disregard the opinions of subsequent justices that held the exact same views.

[ June 26, 2011, 08:26 AM: Message edited by: Pete at Home ]

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noel
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Pete,

This thread makes some valid conclusions regarding transformation of third tier rights into second tier standing; both of which always remain "mutable".

My original comment:

"The formula is correct, the question becomes; What rights are immutable?"...

Was prompted by Funean's comment:

"It's wonderful that your neighbors are such nice people that they would welcome me and my family (I sincerely wish I could believe it). However, given an up/down choice between people liking me and being kind, and having immutable rights protected by law, I will always choose the latter."

The rights that she is concerned with are trandscendant of codified law. They are first tier human rights among which our Constitution (a second tier national compact) lists as life, liberty, and the pursuit of happiness (property).

My question to her was how first tier rights translate into third tier community standards.

[ June 27, 2011, 08:41 PM: Message edited by: noel ]

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Pete at Home
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I used the term mutable because I'm leery about the way that lefties use the term "evolving" in this context. But I'm not sure I follow you, Noel.
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noel
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Okay:

- Basic human rights are immutable. They touch the core of that which makes us sapient beings, and are necessary for our *wholeness*. Most of civilized history has come at the sacrifice if individual autonomy, and liberty (first tier).

- The American experiment was designed to balance civilization with what was understood as a state of nature... ie., entrusting a national government with limited power to curtail unlimited individual liberty in the interest the collective good (second tier).

- Powers not so loaned to the national government were retained by the states, or people respectively to form enclaves of like minded communities (third tier).


My conversation with Funean sought to isolate the acceptable amount of supression which unlimited liberty could be expected to bear before *fundamental* rights were violated.

She would allow much less than me as relates to the subject of publicly expressed sexuality (I think). Hence; What rights are truely "immutable", and why?

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Pete at Home
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Would you say that freedom of the press isn't a basic human right? And yet clearly it's mutable ... there's no freedom of the press of press technology doesn't exist.

Freedom from unreasonable searches would mean little in a society of naked hunter-gatherers.

need I go on?

If rights vest in sapient beings, surely the vesting of such rights occurs according to the reasonable expectations of those beings within their own culture, technology, and other facts.

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noel
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A naked hunter-gatherer would still have a reasonable expectation of retaining the product of his labor... otherwise, why hunt, or gather?

The absence of a written language would impede a free press, but not the need for reliable information on herd migration routes, or edible vegetation locations (which also coincide with water).

The immutable right to sustain the instruments of acquisition might require cosmetic tuning, but it is constant in a life well lived.

[ June 27, 2011, 10:23 PM: Message edited by: noel ]

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JWatts
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quote:
Originally posted by noel:
The absence of a written language would impede a free press, but not the need for reliable information on herd migration routes, or edible vegetation locations (which also coincide with water).

I think in this case, the right to a 'free press' would essentially mean the right to publicly criticize the tribal Chief's decisions.

And of course the right to bear arms would translate to not restricting weapons to a select group.

Your point is well made.

[ June 28, 2011, 02:41 PM: Message edited by: JWatts ]

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