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View Diary: The Power Of The State: Privacy Rights and Economic Rights (296 comments)

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  •  It goes further than that (none)
    Just because it has been tradition to have confidentiality with a lawyer doesn't mean it's an inalienable right that must, therefore, be enshrined somewhere (if not explicitly) in the constitution.

    Using this example, I contend that the "tradition" wsa one that was recognized and upheld in courts of law prior to our revolution.  Therefore by virtue of the 9th, it is enshrined in our Constitution.  States may not pass laws that violate this right.

    This is in contrast to a right to play cards for money.  Just because we can today does not mean the state may not pass a law to change that tomorrow.  

    So, in contrast to our right to lawyer confidentiality which does exist, the right to gamble does not exist.

    •  So we have a right to anything traditional? (none)

      Everything prior to 1776 is just grandfathered in?  If I recall, it was customary and even often expected for a husband to beat his wife (Only tangentially related link, provided for background.)


      Should that right extend into the present day under the 9th amendment because it existed in english common law?  If that's true, wouldn't it take a constitutional amendment to outlaw beating your wife?  If not, why not?


      •  Not really (none)
        Only if you assume the following:

        1.  A woman did not qualify as a citizen (the answer was not obviously "no", prior to the 14th amendment and women's suffrage, the 19th Amendment).

        2.  A man had the right to beat his wife.  That is to say that it was a tolerated custom that was not negligently allowed or not prosecuted.

        Anyway, after the 14th was ratified and after women's suffrage any pre-exisiting right, if such existed, was certainly removed.
        •  Ok, but what you're saying... (none)

          ...is that it would be included via the 9th amendment, but it would be overruled by later amendments?


          That may work for the (admittedly extreme) case of wife beating, but I'm sure there's parts of english common law (not my specialty) that you can think of that shouldn't qualify as "rights" in the modern day.

          •  Over my head (none)
            You described what I meant well.

            I'm afraid that I also lack a good understanding of our common law.  I am speaking on a conceptual basis, as well as I understand it and can only provide some further examples that I know of.  The right of spouse to withhold testimony in criminal proceedings is not enumerated in our Constitution, but was retained as an unenumerated right from the 9th.  If not, then how did we come by this right?

            Just to be a bit more clear, I define an individual right (under the US Constitution) as something that government at any level may not (lawfully) pass a law against, without amending the Constitution.

            •  Aren't you begging the question? (none)

              The right of spouse to withhold testimony in criminal proceedings is not enumerated in our Constitution, but was retained as an unenumerated right from the 9th.  If not, then how did we come by this right?


              ...you're assuming we possess this right.  Technically, we can do anything we please so long as there is no law against it.  If no law against such had ever been passed, how would we make the distinction below:


              Just to be a bit more clear, I define an individual right (under the US Constitution) as something that government at any level may not (lawfully) pass a law against, without amending the Constitution.


              That's a fine definition, but at what point can you make new laws as society sees fit?  Do you have the right to chose your own doctor, because you have historically been able to pay them for services?  If we institute national health care, can restrictions on paying a doctor cash to jump line be struck down on the basis that we have a 9th amendment right to buy treatment from a doctor?

              •  Liberty vs Right (none)
                To answer your first question, My assumption is that any level of government may force a spouse to testify in a criminal proceeding.  If the state attempted to pass a law to require it, I think that such a law could not be upheld.  Therefore, that is a spouse's right.

                Let's see if the distinction between liberty and right is useful.  If there is no law against an activity, then we are at liberty to perform that activity.  If a law may legally be passed against performing that activity then the activity is not a right.

                So, we are at liberty to do anything that is not against the law.  We have the right to anything that may not be Constiutionally legislated against.

                •  But as long as we have a liberty... (none)

                  ...how do we know if it's a right?  If I pass a law making something illegal that was not before, how do I know whether I've violated a right not previous enumerated?

                  •  Commn Law (none)
                    One must look to the rights the we enjoyed under British rule.  If we had the right prior to ratification, then our government (at any level) may not pass a law against it.  Such a law should be ruled unconstitutional by the courts.
                    •  But as we've established, some are ridiculous. (none)

                      Plus, that's ignoring the issue that parts of the US (Louisiana) weren't founded on British common law to begin with!

                      •  I don't follow you (none)
                        But as we've established, some are ridiculous

                        I'm not sure we established this, but let's go forward assuming that we have.  Lots of laws are ridiculous.  Are they therefore not allowable?

                        You're correct about LA, but they inherited the same rights as other US citizens by virtue of joining the Union.

                        •  On a different angle (none)

                          We have a number of enumerated rights in the 1-8th amendments, which were previously upheld in english common law.  If the 9th amendment truly enshrines english common law "rights" and rights, why are some enumerated and some are not?


                          I just don't see an "active" interpretation of the 9th amendment as enumerating unspoken rights as anything but an exercise in wish-fulfillment.

                          •  Quoth Madison (none)
                            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 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.

                            That clause beceome the 9th.  Furthermore:

                            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

                            The use of the phrase retained by the people informs me that he was referring to those rights which we already possessed prior to ratification.

                          •  But his argument is mainly against Federalism. (none)

                            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 more an argument for the 10th amendment and a limit to federalism than unenumerated rights held specifically by the people.


                            His statements happen long before Wickard vs. Filburn which would see the near complete subversion of the 10th amendment.  Indeed, the 9th amendment was essentially ignored as indeed being superflous until well after the 10th amendment was substantially weakened.  It was only then that interest in it revived.


                            His comment about "inserted merely for greater caution" backs my view to a certain extent. Retained takes on a very different definition after Filburn.  Prior to that case, the federal government had very limited powers, and anything not explicitly granted to it was untouchable, simply because the power was not delegated.


                            As for "by the people" rather than "by the people and states," recall that this was still well before the Bill of Rights applied to the state governments!

                          •  Wickard v Filburn (none)
                            This decision allowed growth of the Commerce and 'necessary and proper' clauses, thus bringing more powers into the scope of Article 1, Section 8.  You and I are probably in agreement that such an expansion was not in line with the letter and intent of the Constitution.  That and much more damage has been done to the 10th.

                            I'm not sure where you're going here.  Are you saying that the retained rights are those of the states?  If so, to an extent I have to agree with you historically.  However, subsequent to the 14th I think that the limitations on the states therein left those retained rights in the hands of the individuals.

                          •  Not quite where I was going. (none)

                            I'm not sure where you're going here.  Are you saying that the retained rights are those of the states?  If so, to an extent I have to agree with you historically.  However, subsequent to the 14th I think that the limitations on the states therein left those retained rights in the hands of the individuals.


                            Well, yes, although this is kind of academic to the core issue.  I'm basically asserting that it is a reasonable view to see the 9th as not granting any actual rights.  Essentially, it is a guard against Federalism, stating that the government doesn't get any magical unenumerated powers just because they aren't specifically barred from doing something.


                            The 10th essentially superceded it, and the 9th has only come back into the limelight because Wickard vs. Filburn essentially killed the 10th.  Thus the need to mint new "rights" when we want to prevent the Federal government from doing something.


                            That's a terribly sloppy approach to law though.  Once you starting coining rights to give people abortion because it's "popular" the constitution doesn't seem like much of a limit on anything anymore.


                            Additionally, we've probably made this article completely unreadible via too many replies now.


                          •  I enjoyed it (none)
                            I just wanted to take a moment to mention that I enjoyed our discussion.
          •  Blackstone (none)
            The reference to our common law that I have heard mentioned most often (including by the SCOTUS) is Balckstone's Commentaries.  Here is a relevant (andperhaps amusing, given its archaism) passage:

            http://www.yale.edu/...

            THE hufband alfo (by the old law) might give his wife moderate correction h. For, as he is to anfwer for her mifbehaviour, the law thought it reafonable to intruft him with this power of reftraining her, by domeftic chaftifement, in the fame moderation that a man is allowed to correct his fervants or children ; for whom the mafter or parent is alfo liable in fome cafes to anfwer. But this power of correction was confined within reafonable boundsi ; and the hufband was prohibited to ufe any violence to his wife, aliter quam ad virum, ex caufa regiminis et caftigationis uxoris fuae, licite et rationabiliter pertinet k. The civil law gave the hufband the fame, or a larger, authority over his wife ; allowing him, for fome mifdemefnors, flagellis et fuftibus acriter vering him, for fome mifdemefnors, flagellis et fuftibus acriter verberare uxorem ; for others, only modicam caftigationem adbibere l.

            It's fascinating reading, in a way 8^)

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