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

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  •  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.


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