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View Diary: Understanding the Right to Privacy And the Right to Choose (322 comments)

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  •  Plenty of writing on the 9th (none)
    Read Laurence Tribe, for example.

    While the 9th is key to understanding the abortion dispute, it tends not to be relied on in opinions (Justice Goldberg was a notable exception) because it doesn't have its own content.  This allows Scalia to disparage it, and allowed Bork to deem it a dead letter and say that it should be ignored.  To my mind, this was the basic reason Bork was unqualified to be on the Supreme Court:  he looked at the text of the 9th Amendment and said "we should flat out ignore it."  But making an affirmative particular case for a given right based on the 9th is difficult (though easier with privacy than with pretty much anything else); rather, the 9th can be seen as empowering both common law, human rights, and (increasingly) international law versions of rights.

    The Right's concern that the 9th can be used by judges to make up new rights is not totally nuts, by the way; they do serve a role in keeping us honest.  What it is, rather, is highly overblown.

    "If you [just] wanted to reduce ignorance, you could ... abort every Republican baby in this country, and your ignorance rate would go down."

    by Major Danby on Wed Oct 19, 2005 at 07:47:10 AM PDT

    [ Parent ]

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