Let's get something straight about 'enumerated' vs 'unenumerated' rights

This is about the 9th Amendment

Ninth amendment of the US Constitution -- Unenumerated Rights
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Got that?


https://law.justia.com/constitution/us/amendment-09/



RIGHTS RETAINED BY THE PEOPLE

The Federalists contended that a bill of rights was unnecessary. They 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 and thereby lend support to the argument that government was unrestrained as to those rights not listed.

There are thousands of unenumerated rights, though they are not specifically listed, because they are implied. These are also called 'penumbra' rights. The federalists, and those are the guys who succeeded in getting the Constitution ratified, without whom AMerica would not have a constitution, so pay attention to what they argued, that they DID NOT want a bill of rights. Why? Because the constitution, itself, dictates Americans have rights, all kinds of rights. Because some partisans in the future would argue that if it's not in the constitution, it's not a right. And what are some partisans on the right now arguing?

"It's not in the constitution, therefore, 'it's not a right' ".

Well, the framers of the Constitution just told you you are full of it.

Does the constitution spell out that you can purchase a gun? No, it's implied.

That's what the legal concept 'penumbra' means.

https://constitutioncenter.org/blog/contraception-marriage-and-the-right-to-privacy

“The First Amendment has a penumbra where privacy is protected from governmental intrusion,” the Court said. “While it is not expressly included in the First Amendment, its existence is necessary in making the express guarantees fully meaningful.”

It's a legal doctrine:

https://en.wikipedia.org/wiki/Penumbra_(law)

So, I don't want hear any argument that goes 'it's not in the constitution'.

What the constitution guarantees is whatever Scotus says it is.

for 50 years, Scotus told us that Abortion, within the parameters of Roe, was an unenumerated right.

So assert: "It's not in the constitution" is NOT a counter argument.

For 50 years, numerous cases, justices upheld the right of abortion.

What rights the constitution guarantees is whatever Scotus says it guarantees.

It said so for 50 years.

Then it took that right away. That is historical first. Only a hard right ideologue court would take away a right it once granted, after 50 years of precedent upheld my numerous justices of both liberal and conservative flavors. This is not a court chosen by 'the people' it is a court chosen by a minority. This is not democracy, this is tyranny.

[It is a] fundamental maxim of republican government, which requires that the sense of the majority should prevail. --Alexander Hamilton, Federalist #22


That's all the millions of woman affected by the Dobbs decision will know.

What they will not care about is this court's 'reasoning'.

 

It proves that, to most on the right, their adherence to "what our founders wanted" is more dependent on the "convenience" of the moment rather than in actual principle.

 

And that's a problem, without discussing anything on reasoning nothing can be achieved. So as an example, you cite the 9th amendment and the enumerated rights concept. Very good, this is a debate that's still happening to this day and is as unsettled in 2022 as it was in 1787. Who exactly codifies a right? How or why is a right codified to begin with? Like anything else when we draw subjective lines, they're fuzzy and they can be crossed over, re-written or mocked.

As it pertains to the Dobbs decision and what you're upset about(IE: The federalists didn't want a list of rights, because it would be argued that if certain rights weren't listed then they wouldn't be allowed.). That's what the 10th Amendment is actually for, the 9th/10th go together to give privilege to the people(not that we exercise this as a people. A monolithic American experience has become impossible at the turn of the century). But to be more specific, the SCOTUS did not rule that people couldn't have an abortion. Just that Roe/Casey were both improperly decided with the 14th as a basis.

Instead, one would use the 9th/10th as the basis for abortion law. The problem is, there was/isn't yet a national law. And so by returning it to a states decision, there are some for/some against. Very basically, abortion is at the same place as marijuana.

Now, the other question pertinent to your issue is: Why was Roe/Casey inadequate to the 14th Amendment? For that, the answer actually lies in your OP.

“The First Amendment has a penumbra where privacy is protected from governmental intrusion,” the Court said. “While it is not expressly included in the First Amendment, its existence is necessary in making the express guarantees fully meaningful.”

Simply put, Abortion is not 'necessary in making the express guarantees fully meaningful'. Because here's the text of the 14th Amendment:

https://www.law.cornell.edu/constitution/amendmentxiv

"
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."



Excuse the random change in font due to the copy/paste. But in any event, there are several arguments or problems that exist with an Abortion application to the 14th. Some are picky and others are legitimately problematic. So here's a picky example: It says "citizens of the United states" and yet abortion is a privilege specifically for women. Right here alone, it can be argued that abortion cannot be faithfully applied to the 14th, because it's a privilege that belongs to only one class of people.


It's actually the second phrase of this section that was the basis for Roe, but also its undoing. The "shall any state deprive any person of life, liberty or property".
In the contextualist doctrine, this was specifically in reference to the rights of the freed slaves and did not inference reproductive rights. That was just a convenient argument that cant be found, inferred or otherwise. But a more damning question is that though a 'state' can't deny a person life, liberty or property, can people?
Well,obviously no, murder's a thing. So if a person cannot deny life, liberty or property and if we can conclude that scientifically the end term of a pregnancy is a vital fetus. Well, you know the rest.

So you see, the reason the law was overturned is that the 14th Amendment is insufficient to defend reproductive rights, because it was never written with that intention to begin with. Even Ginsburg understood that the 14th was not the right place to make the argument, though she was in favor for abortion. She knew this day would come. Democrats are basically now crying that they had 50 years to make it federal law, and chose not to do so. But given people's preference for these choices, Kansas shows you how the democracy will actually play out as citizens reject extreme measures against abortion(as most support early-term abortions and only late-term if threat to a mother's life, rape or incest.)

 

Our forefathers got it right. You can call them "god-given rights", or "natural rights" or "human rights", but they don't NEED to be codified. They are the consequence of an objective moral principle. This moral principle is expressed in the Preamble of the Constitution. These rights trump the Constitution.

Our country was the major responsible for writing the International Declaration of Human Rights. The Preamble being a major guiding light. And we were leaders in upholding those rights up until the time the Republican Party started to turn to the extreme right.

The International Declaration of Human Rights is NOT complete. But it does contain a broad set of rights that objectively hold.

 

the purpose of the 14th amendment was to quash, constitutionally, the ridiculous notion of "states rights."

under the 9th amendment only people have rights. under the 10th amendment states have no "rights," only powers.

the states who held that they somehow had the right to define some citizens as second class and subservient to "real americans" were thoroughly defeated. the 14th amendment defined all citizens as equally protected by law.

your other stuff, that men can't have abortions so women can't have that right? any man that needs an abortion has a right to one. and as for the fetuses , "all persons born ....." does not apply to them.

 

the universal declaration of human rights is an incredible achievement.

OHCHR | Universal Declaration of Human Rights - English

 

Let me put down your liberal rant in the easiest and simplest possible terms: Why isn't there a clause nullifying the 10th Amendment in the 14th Amendment? If it were to be read or interpreted the way you would like it to be.(PS. No court would agree with your interpretation), this is because if the States have no rights, then the federal government would not be formed. Indeed, the states are recognized within the country as a whole. Your local firefighters are not funded by Washington.

Like, how little of history do you actually know of the Continential States? The States used to have their own currency and tried their own thing but it resulted in mass inflation(well, that and the crops). That's why the Constitution exists to begin with, to solidify the union of States.

Without the Constitution, there would be no union. Without the States, there wouldn't be a country. Why do you think the States ratified the Constitution? Why didn't the Constitution null and void the existence of the States in 1787? In other words, your entire screed here is devoid of even the simplest of critical thinking and its insulting, both to myself and you.

So please, in the future before going on a screed ask yourself 'does this actually make sense'. I'll tackle the last point you tried to make. That "Persons born" would mean that it wouldn't apply to pregnancies. There's so many things I could point to, to negate this(double murder charges when a pregnant woman is killed) or I could point to @Golem here using the preamble of the Constitution which ordains the "pursuit of life, freedom and happiness." and make the conservative argument that by engaging in abortion, one prevents that very pursuit of life, freedom and happiness.

Again, as I stated earlier the 14th Amendment was not written with 'reproductive rights' in mind so therefore, an implication argument does not inherently exist. Implication means that it can 'be read to infer'. It has to have at least some hint in the language, and I don't mean that a person could say "this says this to me". No, it has to be in universal language. As an example, the 2nd amendment is pretty clear and dry. That's why Liberals have had a hard time with it.

But even if we somehow granted the 14th amendment this inferring that doesn't actually exist, what if the framers did tackle the question? What would they perceive as the moment of conception? To them, if they had our technology they would identify it as most Christians do: At the point of conception(ie: As the egg fertilizes.) Because from this point onward, a human fetus WILL be born. You can't argue otherwise, that it's non-sentient or any of the above. Those were convenient arguments created, but not based on any scientific point in fact.

The liberal argument for abortion would make sense if any other lifeform but a human could be bore from a pregnancy, but the reality is: Humans can only give birth to humans. That's it, period. Liberals do not have the lawful or moral grounds for 'early access abortion', it doesn't exist no matter how many words you twist.

The argument for abortion, can be had in family planning. it can be had citing the prosperity of children for those who want the child as opposed to those who don't. Rape, incest, threat to the mother, etc. These are all much, much, MUCH stronger arguments. But abortion as a 'right', does not have even a candle of political argument in America or even the rest of Western Civilization.

 

If the constitution says whatever the SCOTUS says it says then I don’t understand why you’re upset? Because the SCOTUS is now saying it doesn’t say abortion is a right.

 

We are CREATED with self-evident certain rights such as the right to the life created, not born with those rights. All born gets you is citizenship if it happens here or your parents are already citizens.

Ninth Amendment
"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."

"Powers" and "rights" being interchangeable here under most interpretations.

Tenth Amendment:

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.

In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). " style="box-sizing: border-box; color: rgb(0, 104, 172); cursor: pointer; vertical-align: top; font-weight: 700; font-size: 12.8px; line-height: 0.8em; border-bottom: 1px dotted;">1 Marshall rejected the proffer of a Tenth Amendment objection and offered instead an expansive interpretation of the necessary and proper clause See discussion under “Coefficient or Elastic Clause,” supra. " style="box-sizing: border-box; color: rgb(0, 104, 172); cursor: pointer; vertical-align: top; font-weight: 700; font-size: 12.8px; line-height: 0.8em; border-bottom: 1px dotted;">2 to counter the argument. The counsel for the State of Maryland cited fears of opponents of ratification of the Constitution about the possible swallowing up of states’ rights and referred to the Tenth Amendment to allay these apprehensions, all in support of his claim that the power to create corporations was reserved by that amendment to the states. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 372 (1819) (argument of counsel). " style="box-sizing: border-box; color: rgb(0, 104, 172); cursor: pointer; vertical-align: top; font-weight: 700; font-size: 12.8px; line-height: 0.8em; border-bottom: 1px dotted;">3 Stressing the fact that the amendment, unlike the cognate section of the Articles of Confederation, omitted the word “expressly” as a qualification of granted powers, Marshall declared that its effect was to leave the question “whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument.” 17 U.S. at 406. “From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.” United States v. Darby, 312 U.S. 100, 124 (1941). " style="box-sizing: border-box; color: rgb(0, 104, 172); cursor: pointer; vertical-align: top; font-weight: 700; font-size: 12.8px; line-height: 0.8em; border-bottom: 1px dotted;">4

https://www.law.cornell.edu/constitution-conan/amendment-9
https://www.law.cornell.edu/constitution-conan/amendment-10/tenth-amendment-early-doctrine

 

You ask who codifies the right? Well the Supreme Court Declares it. If the court employs the doctrine of the penumbra and confers a right as it interprets the Constitution thus, it is a right as much as any other right in the bill of rights. The only time in history has the court conferred a right and taken it away is with this court Who were appointed by a president elected by a minority of the population.

In my view there should be an amendment to the Constitution whereby if a president is elected by a minority of the population any appointment to the Supreme Court shall require a 2/3 vote in the senate. And in my view it is a gross injustice that a minority elected president is allowed to appoint 3 hard right ideologues to the Supreme Court and thus throw the court completely out of whack with the values of the majority of the electorate.

FYI, for some reason Your quotations weren't marked up in you're OP but we're in my quotation. Go figure. What I do is when I copy and paste the The text I right click and select paste as text and that strips the style sheets from the post. If you're on a Mac I don't know how to do it

 

you need a new copy of the constitution, because yours gets the 9th all wrong. amendment 9 says nothing about powers or states.

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

the 10th amendment, on the other hand, is all about powers and those go to the states only if not prohibited by the federal goverment. . clearly "powers" and "rights" are not the same thing.

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.

 

A truly great document!

 

"Engaging" in abortion? You do understand that this the MOTHER's decision. How would not forcing a woman to have a baby she doesn't want prevent her from enjoying any of those?

I think you might have gotten your cables crossed here for a bit....

 

We're not talking about the mother, we're talking about the fetus. By aborting the fetus, the mother has deprived her would-be son or daughter from life, liberty and happiness. And given the anti-abortion stance way into the mid-1950's it's pretty clear there's larger precedence for that, then there is for the 'western norms' of today.

Indeed, Liberals couldn't win a precedence argument even if they tried, because the precedence outstrips theirs by hundreds of years prior to Roe V Wade. What Liberals need to understand is that there's no lawful or moral basis for Abortion on a classical sense, that's why Roe had to create one to begin with.

Now, do I agree with conservative outlooks on abortion? Not exactly. I think there's a place for both sides and I think there's a bunch of reform that has to get done, but one such reform has to do with parental rights. If the father doesn't want to be in a mother's life, he has the obligation to effectively communicate that. If the father doesn't want to bare the burden of paying child support, that too should also be communicated. IE: The idea of women-only abortion is impractical as a matter of law.

And when women argue for women-only abortion, they're arguing for an exclusive privilege not a right.(Because in acknowledging the fetus, we also do away with the 'my body, my choice' fallacy. Since it's not her body, her body is temporarily host to an individual life that is called the fetus.)

Really, all liberal/pro-choice arguments have been since Roe are fallacies, intellectual and even scientific fallacies that some accepted but that doesn't make them any less fallacious.

 

The fetus? The fetus is not a human being. That has been established both by national and international courts. So whether constitutional rights or human rights... your statement is rejected by ALL positions in this debate.

There is no such things as rights of a "potential human". Otherwise even masturbation would violate those rights. So even if we go by "hair-splitting" standards, yours is particularly absurd.

 

Fake News.

Court Opinions Are Not Supreme Law
Article VI of the Constitution describes what qualifies as the law of the land.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…

What's included? The Constitution, congressional law, and treaties.
What's not included? Supreme Court decisions.

"While the court decides the constitutionality of laws, its decisions are not themselves laws."

"The Supreme Court is just a court. It was established to adjudicate cases and controversies before it. Courts cannot make general pronouncements of law; they exist to settle disputes."

"The Supreme Court is prohibited from issuing advisory opinions or ruling on laws that do not arise through litigation. Justices are not consultant scholars but arbiters in the limited setting of a legal case, not general legal or public policy matters. Courts issue their rulings in the form of judicial opinions, laying out the holding and the rationale."

"The Constitution is the supreme law, that text is the law, the ruling is not. As Justice Story said of judicial opinions in Swift v. Tyson, “They are, at most, only evidence of what the laws are, and are not, of themselves, laws.”

It was based on a fiction that the phrase "due process" meant something other than than "Due Process". Everyone always knew that is was but a fiction that prevented the enforcement of actual law, duly passed by elected legislations. That's why when this prohibition against enforcement was finally lifted, those laws were immediately back in force. They are actual laws, Court decisions are not laws. The Court is not the Lawmaking Branch. In our Liberal Constitutional Democracy laws are made by OUR Elected Legislatures, not an unaccountable tribunal. Remember that you are DEMOCRAT not a tribunalist.

50 years goes by fast. Plessy vs Ferguson (1896) was another wrong decision that said that Jim Crow segregation was constitutional.

​

It was controlling legal precedent reaffirmed by the court more than once and stood until Brown vs Board of Education in 1954 forbid segregation in schools. That's 58 years.

https://thefederalist.com/2019/03/22/supreme-court-not-final-say-constitution/

 

There are no "unenumerated rights". So yeah, we got it.

The 9th Amendment doesn't protect "unenumerated rights ". Hell, it doesn't even say "unenumerated rights "...lol

The Left's illiteracy is astounding.

 

Well, a better word might be unlisted rights. And that was the point the OP was making, just because they aren't listed doesn't mean they aren't real, and that is what the 9th is meant to clarify and the 14th wholly supports.

Here's more.

https://en.wikipedia.org/wiki/Unenumerated_rights#In_the_United_States

And here's a deep deep dive if you are really interested in studying this fascinating area further.

​

 

If that's the case, then the right to keep and bear arms will be protected forever, even if the 2nd Amendment is repealed. Right?

 

You get an "A" in creative writing.

 

What's an unenumerated right is in question.
There is no question about enumerated rights.

1. The OP is very much correct about the anti-federalists view that we should not list rights for fear that unlisted rights would become second class.
2. The assumption, and it turns out to have been a damn poor one, was that the Federal government would forever remain within its enumerated powers.
3. The Federalists prevailed and we listed several rights and included the 9th, 10th and the 14th to shore up the unenumerated rights.

If we could have held the line on two, I agree with the anti-federalists, but since we clearly failed, I thank God for the foresight of the Federalists.

And more slowly than steadily we have drawn some lines against the federal expansion beyond enumerated powers and that's a tug of war between We The People and our government that will likely continue for the duration. We've made tremendous progress on the Judiciary, but, we need to make some solid advances in our law schools, we are graduating completely woke fools from our top schools that normally are the folks that will be filling our judiciary. I think that over the next five years or so you'll see undeniable improvement there as the judiciary continues to align with SCOTUS.

 

The 9th Amendment doesn't protect unenumerated rights. Nothing about it's text even sorta says that.

 

illiteracy? really? if the rights which are not "enumerated" are not "unenumerated" what the hell are they?

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

 

I agree that it is no longer a right, that a right is whatever scotus says but that is a separate point from the point that they took away what was granted for 50 years.

The defiance of stare decisis and the denigration of the court thereby is a separate point.

 

As I stated, a court interpretation of a law which alters it's application from prior, or clarifies a prior understanding, it has the effect of law. I didn't say it was law, only that it has the effect of law.

If it's an interpretation of the Constitution, it will stand as the correct interpretation of the Constitution and only SCOTUS can overrule it.

If it's an interpretation of existing law, it will have the effect of law until congress overwrites it.