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To: GretchenM

Our rights are not granted by documents. They are sometimes confirmed in them, or enshrined in them, but they are not granted by them. And the absence of a right from the text of a documents does not mean, in the least, that the right does not exist and is not fundamental.


5 posted on 07/20/2006 10:26:59 AM PDT by lugsoul (Livin' in fear is just another way of dying before your time. - Mike Cooley)
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To: lugsoul

Nicely said... (And that's a great quote on your home page)


8 posted on 07/20/2006 10:31:06 AM PDT by A. Goodwin
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To: lugsoul
Our rights are not granted by documents. They are sometimes confirmed in them, or enshrined in them, but they are not granted by them. And the absence of a right from the text of a documents does not mean, in the least, that the right does not exist and is not fundamental.

Well said. This is one point many, many freepers fail to grasp.

12 posted on 07/20/2006 10:36:10 AM PDT by MACVSOG68
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To: lugsoul

Bravo, well stated.


14 posted on 07/20/2006 10:38:33 AM PDT by Constitution Day (Down with Half-Assery!)
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To: lugsoul
And the absence of a right from the text of a documents does not mean, in the least, that the right does not exist and is not fundamental.

Right, but how do you base a coherent jurisprudence on unwritten laws without just making things up as you go along?

I also doubt the right to fornicate is existent, let alone fundamental.

24 posted on 07/20/2006 11:04:54 AM PDT by Dumb_Ox (http://kevinjjones.blogspot.com)
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To: lugsoul
Our rights are not granted by documents. They are sometimes confirmed in them, or enshrined in them, but they are not granted by them. And the absence of a right from the text of a documents does not mean, in the least, that the right does not exist and is not fundamental.

Ah yes, the faulty libertine reading of the 9th Amendment.

I first must ask, are you familar with the phrase "Designatio unius est exclusio alterius, et expressum facit cessare tacitum."? That phrase goes to the heart of why the 9th Amendment was included in the Bill of Rights.

James Madison made this clear when he stated:

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 urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.

You see, the Libertine rewrite of the 9th Amendent was addressed and REJECTED by a Federal District Court in Alabama in 1980:

"In contrast to the first eight amendments, the Ninth Amendment does not specify any rights of the people, rather it serves as a savings clause to keep from lowering, degrading or rejecting any rights which are not specifically mentioned in the document itself. The Ninth Amendment does not raise those unmentioned rights to constitutional stature; it simply takes cognizance of their general existence. This is not to say that no unenumerated rights are constitutional in nature, for some of them may be found in the penumbras of the first eight amendments or in the liberty concept of the Fourteenth Amendment and, thus, rise to constitutional magnitude. It is only to say, however, that unenumerated rights do not rise to constitutional magnitude by reason of the Ninth Amendment. The foregoing interpretation of the Ninth Amendment is supported by the history of that provision, which reflects that the Ninth Amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution. 1 Annals of Congress 438-40 (1789); II Story, Commentaries on the Constitution of the United States 626-27 & 651 (5th ed. 1891). Therefore, this court is of the opinion that there is nothing in the Ninth Amendment to be incorporated by the Fourteenth Amendment as the Ninth Amendment is merely a rule of construction. The alternative interpretation, which is unacceptable to this court, would be to construe the Ninth Amendment as incorporating all fundamental rights into the Constitution, although they were never intended to be rights of constitutional magnitude." CHARLES v. BROWN, 495 F. Supp. 862 (N.D. Ala. 1980)

The 6th Circuit adopted this reasoning in Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991):

We agree with the district court that the ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment "was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution." Charles v. Brown, 495 F. Supp. 862, 863-64 (N.D. Ala. 1980). Accordingly, Gibson's ninth amendment claim holds no merit.

The reasoning of the Alabama Court is largely correct, allow me to explain why. If one trys to morph the 9th Amendment into a magic guarentee of a specific right that someone dreams up, then you run into a fundamental problem, Judges, not the people become the final arbiters on what is included in the 9th Amendment.

Let's say that an adult libertarian NAMBLA member claims a fundamental right under the 9th amendment to engage in sexual relations with an 8 year old boy. Where does the 9th Amendment say that this right doesn't exist? You might scoff at such an idea, and rightly so, but the NAMBLA member could use the 9th amendment, along with the aid of a sympathetic judge, to invent such a right out of thin air.

Used in that manner, the 9th Amendment would be nothing more than a Rorschach blot, one whose meaning would change depending on what creative "right" one could invent and attempt to invoke. What's dangerous about this is that it would be the unelected and largely unaccountable Judge, not the elected and accountable represenative, that would be making the final decision on the value of the claimed "right".

The fact of the matter is, [T]he Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even afarther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people." Troxel V Granville 530 US 57 (2000) (Scalia, J. Dissenting).

With all that said, I must add this caveat, please do not misinterpret what I am saying as to be "There are no unenumerated rights" as that reading would be patently incorrect.

It's just that the libertine rewrite of the 9th Amendment as actually granting substantive rights is patently flawed.

113 posted on 07/20/2006 8:26:59 PM PDT by ghostmonkey
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To: lugsoul

Coyuldn't have said it better myself.

Bravo.


120 posted on 07/20/2006 8:51:47 PM PDT by Luis Gonzalez (Some people see the world as they would want it to be, effective people see the world as it is.)
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To: lugsoul

Our rights are not granted by documents. They are sometimes confirmed in them, or enshrined in them, but they are not granted by them. And the absence of a right from the text of a documents does not mean, in the least, that the right does not exist and is not fundamental.
-lugsoul

Beautiful. Immediately stolen for re-use, not necessarily with attribution! Thanks for saying this.


243 posted on 07/23/2006 12:19:24 PM PDT by dcwusmc (The government is supposed to fit the Constitution, NOT the Constitution fit the government!)
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