Thread: The Ultimate Purpose Of The Right To Free Speech - Re-established through the 9th AMD.

Originally Posted by ChrisABrown

Courts are not mentioned in the 9th amendment, the people are. We, as a majority have more authority than the courts and essentially have the right to DEFINE rights not listed. No where are courts given that authority.

It does not have anything to do with what I'm saying. Like Lincon said in 18959, "the people are the rightful masters of the congress and the court".

Are you saying there is something wrong with this concept fully supported by the constitution? Are you trying to deny or disparage this right to define rights not listed but retained?

You can make a claim to having a right under the terms of the 9th Amendment, but for that claim to have any legal validity, you have to get a court to rule in your favor... wouldn't you agree? We're a nation of laws, not of men and as such, the rights we hold true have to be consistent with the law.

As far as the 9th Amendment goes, I would say that it obviously gives scope for the existence of unenumerated rights... but it'd be a gross overreach to take it as a blank check for any unenumerated right you can dream up. If you want to make a constitutionally valid argument for the existence of a specific unenumerated right, then I would say that you have to first make a legal case for it's existence. To make such a legal case, you have to clearly define the right you wish to assert and explain how the enumerated rights in the first 8 Amendments can be combined to legitimately argue for the existence of the new unenumerated right.

Even if I don't quite understand your First Amendment argument, I do understand that you feel it gives scope for your argument. Fair enough.... but the First Amendment has literally been the subject of a multitude of rulings of the Supreme Court over the years, and I can't think of any of them which support your interpretation. So the First Amendment isn't enough to make your case... you need to combine it with another right granted by the Constitution before you can start to make a case. A 9th Amendment right can only exist as a hybrid of other rights.

Originally Posted by Cordelier

You can make a claim to having a right under the terms of the 9th Amendment, but for that claim to have any legal validity, you have to get a court to rule in your favor... wouldn't you agree? We're a nation of laws, not of men and as such, the rights we hold true have to be consistent with the law.

As far as the 9th Amendment goes, I would say that it obviously gives scope for the existence of unenumerated rights... but it'd be a gross overreach to take it as a blank check for any unenumerated right you can dream up. If you want to make a constitutionally valid argument for the existence of a specific unenumerated right, then I would say that you have to first make a legal case for it's existence. To make such a legal case, you have to clearly define the right you wish to assert and explain how the enumerated rights in the first 8 Amendments can be combined to legitimately argue for the existence of the new unenumerated right.

Even if I don't quite understand your First Amendment argument, I do understand that you feel it gives scope for your argument. Fair enough.... but the First Amendment has literally been the subject of a multitude of rulings of the Supreme Court over the years, and I can't think of any of them which support your interpretation. So the First Amendment isn't enough to make your case... you need to combine it with another right granted by the Constitution before you can start to make a case. A 9th Amendment right can only exist as a hybrid of other rights.

Are you familiar with Griswold v. Connecticut, and do you have an opinion about the court's invocation of the 9th in that case?

Originally Posted by Thoreau72

Are you familiar with Griswold v. Connecticut, and do you have an opinion about the court's invocation of the 9th in that case?

I am, and I agree with the decision (especially Goldberg's concurring opinion)... if we don't have a right to privacy - privacy in our homes, in our relationships, and over our own bodies.... then what rights do we have? Free speech, gun ownership and all the rest are pretty hollow consolations if you don't even have domain over yourself.

Originally Posted by Cordelier

You can make a claim to having a right under the terms of the 9th Amendment, but for that claim to have any legal validity, you have to get a court to rule in your favor...

Lol, courts are not laws, and there is no law stating that the 9th is subject to the ruling of a court. This is particularly true when a majority asserts their definition of a right.

This is not me, this is the American people. Try to make that distinction.

Any right a Citizen can dream up that does not violate and existing right falls fairly under the 9th Amendment.

Originally Posted by Cordelier

A 9th Amendment right can only exist as a hybrid of other rights.

Where does the constitution say that?

Originally Posted by ChrisABrown

Lol, courts are not laws, and there is no law stating that the 9th is subject to the ruling of a court. This is particularly true when a majority asserts their definition of a right.

This is not me, this is the American people. Try to make that distinction.

Any right a Citizen can dream up that does not violate and existing right falls fairly under the 9th Amendment.



Where does the constitution say that?

Separation of powers, Chris... Article III invests the judicial power of the US in the Supreme Court. Interpreting the Constitution falls within the scope of judicial power. It's also a function of the judiciary to act as a safeguard of individual rights against any possible tyranny of the majority. Case in point... during the red scares of the 1950's, the majority of the population was willing to do anything to safeguard against communism. This fact was exacerbated by demagogues like Joe McCarthy and was embodied in legislation like the Smith Act. Should it have been illegal to be a member of the Communist party? The majority of the population would have undoubtedly answered "yes".... First Amendment be damned. Disagree with the majority, and you're just another pinko. The Supreme Court is the only institution that can protect individuals from such tyranny.

As for 9th Amendment rights only existing as penumbras of the numerated rights, that's a product of Supreme Court rulings, most notably Griswold v. Connecticut, as has been discussed. When the Bill of Rights was written, they included as list of the rights they considered to be important. The 9th Amendment states that this list isn't exhaustive... that unenumerated rights also exist. So how do we go about discovering such rights and still stay true to the text of the Constitution? The Court has ruled that 9th Amendment rights have to be rooted within the rights granted by the Constitution, ie, the penumbras that exist between two or more of the enumerated rights. What's the alternative? To make up rights out of thin air without reference to the Constitution itself??

Originally Posted by Cordelier

I am, and I agree with the decision (especially Goldberg's concurring opinion)... if we don't have a right to privacy - privacy in our homes, in our relationships, and over our own bodies.... then what rights do we have? Free speech, gun ownership and all the rest are pretty hollow consolations if you don't even have domain over yourself.

So then, would it be appropriate to say that rather in the old common law tradition, the court 'discovered' some new law, a new right, by way of the wisdom of those who wrote the Ninth?

Other than certain procedural rights, the constitution doesn't really GRANT rights, it does however GUARANTEE rights.

Originally Posted by Cordelier

Separation of powers, Chris... Article III invests the judicial power of the US in the Supreme Court. Interpreting the Constitution falls within the scope of judicial power.

Exactly, the court can only interpret the cobstitution, the people can define it.

Originally Posted by Thoreau72

So then, would it be appropriate to say that rather in the old common law tradition, the court 'discovered' some new law, a new right, by way of the wisdom of those who wrote the Ninth?

Other than certain procedural rights, the constitution doesn't really GRANT rights, it does however GUARANTEE rights.

I kind of look at rights like open range... before the white man settled on the continent, there were no fences... vast herds of buffalo roamed from horizon to horizon and the land was owned by no man. But then we came along with our property laws and surveying tools and we mapped the land and divided it up and put up barbed wire. Now your land was defined... it gave the individual ownership of his or her section, but it also limited their range. The rights guaranteed by the first 8 Amendments are like that... they're clearly spelled out in the Constitution. They're your's and mine. But by spelling them out and putting them down on paper, it means that their range is also limited. There always have to be boundaries.

The Ninth Amendment is the constitutional "open range" that still exists out there. It hasn't been surveyed yet. But any good surveyor will tell you that if you want to survey and fence out a piece of land, you can only do it in reference to fixed datums. You need to know the longitude and latitude of your starting point, and where the boundaries lie in relation to the properties that have already been fenced off. Without these references, any land claims you make are just shouts in desolate winds of terra incognita.

Originally Posted by ChrisABrown

Exactly, the court can only interpret the cobstitution, the people can define it.

The people have defined it by writing it, amending it, and ratifying it. After that, it's up to the courts to interpret it's meaning.

Originally Posted by Cordelier

The people have defined it by writing it, amending it, and ratifying it. After that, it's up to the courts to interpret it's meaning.

Then if the people do not like the interpretation they redefine it and the courts have no lawful option except change their interpretation. You've failed to show they have any other lawful course.