JMak
DP Veteran
- Joined
- Sep 18, 2008
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I see your point about divining things from the penumbras of Amendments, but I do not agree that rights must be explicitly or even indirectly referenced in the Constitution in order for them to exist. As I said...
If there is a claim of a fundamental right which cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from infringment?
I don't think that the court can without engaging in a constitutionally dangerous game of peering into the shadows eminating from the first eight amendments.
The court's divination of a privacy right didn't need the Ninth as a basis for such a right. The Griswold Court found such a right from the first eight rendering the 9th unnecessary. Hence, if you cannot find a right in the first eight, the ninth doesn't all-of-a-sudden make it appear.
It seems your issue with the right to privacy isn't necessarily the concept itself but rather its improper utilization. Just because the concept is abused or distorted by the judiciary does not mean the concept itself is invalid. Individuals do have a right to privacy, how far that right extends is another matter entirely.
Not really. My issue involves the divination of such a right from the first eight amendments. This is a reflection of the danger I just noted above. Hence, my problem ain't the abuse of such a right by the Courts, but the abuse of the Court's power to divine such a right in the first place.