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[SCOTUS] thread (Leak talk over thar)

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  • Commander ZoomCommander Zoom Registered User regular
    edited May 3
    So another mark in the "actually this is not new, but they'd rather you didn't know that" column.

    I'm certainly grateful there was a brief window when the Court wasn't shit, but it's given a lot of people (myself included) a very distorted image and let us pretend it was always or at least usually thus, rather than merely what it should be.

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  • AngelHedgieAngelHedgie Registered User regular
    Something to remember - the last two Chief Justices made their careers in the conservative set by attacking the right to vote.

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  • chrisnlchrisnl Registered User regular
    So not related to the current controversy, but why does SCOTUS routinely ignore the 9th Amendment? It is arguably the most important one, given the sheer scope of the rights it enshrines, and yet I never see it cited in a ruling or even discussed anywhere.

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  • enlightenedbumenlightenedbum Registered User regular
    For the same reason it ignores the first clause of the Second and most of the Fifteenth.

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  • Phoenix-DPhoenix-D Registered User regular
    For the same reason it ignores the first clause of the Second and most of the Fifteenth.

    aka "That's inconvenient to us"

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  • GoumindongGoumindong Registered User regular
    edited May 4
    chrisnl wrote: »
    So not related to the current controversy, but why does SCOTUS routinely ignore the 9th Amendment? It is arguably the most important one, given the sheer scope of the rights it enshrines, and yet I never see it cited in a ruling or even discussed anywhere.

    The short answer is that it doesn’t ignore it or well… hasnt until now.

    The 9th amendment rarely gets cited because in practice what it gets cited as other rights. Roe doesn’t cite the 9th amendment because it ignores the article or because the right it cites isnt a 9th amendment right but because the part that establishes the right as a 9th amendment right is not spelled out in the amendment but rather the historical application of the right. So Roe talks about the history of the right to privacy and it’s application and meaning rather than saying “it’s a 9th amendment right”.

    Edit: Roe is the most prominent example of a 9th amendment right but there are others (not that I can name them off the top of my head)

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  • HefflingHeffling No Pic EverRegistered User regular
    I, as many have, have been thinking a lot about the Supreme Court, and I've come to the conclusion that even the Founding Fathers would be appalled at the current state of SCOTUS. One of their rallying cries was "No taxation without representation!" But SCOTUS is appointed by the President and Congress, and is a lifetime appointment. The fact that it's a lifetime appointment means that once appointed, a SCOTUS Judge will continue to rule regardless of the wheels of democracy putting another party into power. This makes SCOTUS anti-democratic, as they may no longer represent the will of the people. Which is exactly what we're seeing with Roe V Wade.

    The solution I propose is that each member of SCOTUS should have to go through a re-nomination / approval any time a President swears their oath of office (I'm assuming a re-elected president has to re-swear the oath). This would create a 4 year cycle in which SCOTUS members could be replaced to better represent the will of the people. I would also pass a law that says that if Congress does not hold a vote for a Presidential nominee for SCOTUS within a reasonable timeframe (say, 30 days) then the nomination automatically passes.

    Article II Section II of the US Constitution states:
    He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

    The above proposal is within the framework of the Constitution, as there is no requirement that the appointment be lifelong.

    My preference would be to have each member of SCOTUS be elected for 6 year terms, with 3 members going up for election every 2 years. But that wouldn't fit the USC so isn't feasible.

  • MrMisterMrMister Jesus dying on the cross in pain? Morally better than us. One has to go "all in".Registered User regular
    edited May 9
    My understanding is that there are two main reasons the 9th amendment is not commonly cited:

    1) There's a reasonable historical argument that the 9th and 10th amendments are purely redundant with the rest of the text--they were included only to reassure some signers that the amendments comprising the bill of rights weren't going to transform the government from one of enumerated powers into one which was allowed to do anything not explicitly contradicted by Amendments 1-8. If that's accurate, there will never be a need to cite the 9th and 10th directly, as all they do is reiterate what is manifest in the original document.

    2) The 9th says nothing about what those rights still reserved to the people are supposed to be, and is therefore procedurally unhelpful. If judges are allowed to find whatever rights they want in the 9th, then the judiciary really is an unelected super-legislature with near-infinite powers. Not that this has always dissuaded judges--as far as I can tell as a non-lawyer, the doctrine of "substantive due process" is just the same as "whatever rights I want, but I claim that they fall under the 14th instead of the 9th." Nonetheless, judges who want to be, or at least be perceived as, not merely imposing their policy preferences may correspondingly want to avoid basing their rulings in tendentious interpretations of the highly indeterminate notion of "rights reserved to the people."

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  • PolaritiePolaritie Sleepy Registered User regular
    MrMister wrote: »
    My understanding is that there are two main reasons the 9th amendment is not commonly cited:

    1) There's a reasonable historical argument that the 9th and 10th amendments are purely redundant with the rest of the text--they were included only to reassure some signers that the amendments comprising the bill of rights weren't going to transform the government from one of enumerated powers into one which was allowed to do anything not explicitly contradicted by Amendments 1-8. If that's accurate, there will never be a need to cite the 9th and 10th directly, as all they do is reiterate what is manifest in the original document.

    2) The 9th says nothing about what those rights still reserved to the people are supposed to be, and is therefore procedurally unhelpful. If judges are allowed to find whatever rights they want in the 9th, then the judiciary really is an unelected super-legislature with near-infinite powers. Not that this has always dissuaded judges--as far as I can tell as a non-lawyer, the doctrine of "substantive due process" is just the same as "whatever rights I want, but I claim that they fall under the 14th instead of the 9th." Nonetheless, judges who want to be, or at least be perceived as, not merely imposing their policy preferences may correspondingly want to avoid basing their rulings in tendentious interpretations of the highly indeterminate notion of "rights reserved to the people."

    The 9th is difficult.

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

    That said, I do feel that the judiciary is generally in violation of this, because if you say the courts can only recognize rights explicitly named in the constitution you have, in fact, construed the enumeration of some (and not others) in such a way as to "deny or disparage" the rest.

    Unfortunately the only way to be consistent with the 9th is for the judiciary to decide whether a right not enumerated in the constitution exists on its own merits. And if it does, it must be protected equally to those enumerated (because otherwise you've disparaged it). And you may not use it not being enumerated as a rationale. The problem of course is that at this point you basically have nothing to go on, except you must make a decision. Congress could recognize a right by statute, in which case the courts would have a clear argument to hold it equal to those enumerated in the constitution. But beyond that it's basically philosophy in various flavors, which is understandably unappealing to the judiciary. But it's the only thing that satisfies the 9th.

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  • Dark_SideDark_Side Registered User regular
    edited May 13
    I caught one of NPR's shows doing an hour on the SC and if the public is losing faith in it today. The show was both horrifying and illuminating. Horrifying because both the host and the guest were engaging in that annoying, overly-chipper delivery, and glossing over of disturbing news, that Kai Ryssdal is so known for. At one point the guest, who reports on the court, kind of cheerily admitted that the 2024 election will very likely go straight to the court, who could write a terrible opinion that finds for the GOP, and violence would basically erupt in the streets. She also pointed out that now the court is having multiple leaks per week, and the most recent ones appear to be aimed directly at publicly embarrassing Roberts, as if someone else on the court was "trying to to true him up." I think Alito really is engineering a complete takeover.

    It was very illuminating though because they were taking listeners' calls and emails. And every. single. listener that phoned or emailed was disgusted with the court and laid out a litany of complaints. Usually you get one milquetoast, both sides'er, but people are clearly pissed.

    The guest also brought up the fact that the court is basically trolling us now, both in Thomas's recent speech, and also in the downright mean, dunking on the libs, draft opinion that Alito wrote. The show basically made it clear that this court doesn't give a damn about pretense anymore, and this is a likely suicide pact that will see the court's legitimacy gone. And a lot of bad things come after that happens.

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  • Commander ZoomCommander Zoom Registered User regular
    I admit I would prefer if they destroy their legitimacy before they're in a position to decide the next election.

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  • DarkPrimusDarkPrimus Registered User regular
    edited May 13
    I admit I would prefer if they destroy their legitimacy before they're in a position to decide the next election.

    Okay, let's say that the general public perception becomes that the current SCOTUS is no longer legitimate. Before the election this year, even.

    What's the remedy for that? Because without the vote turning into the Democrats getting 2/3rds of the Senate and holding onto control of the House in the 2022 elections, the only means within the system I see is Biden going "Okay time to increase the size of SCOTUS" and packing the damn thing. Which would still require enough Dem votes to play along.

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  • JragghenJragghen Registered User regular
    DarkPrimus wrote: »
    I admit I would prefer if they destroy their legitimacy before they're in a position to decide the next election.

    Okay, let's say that the general public perception becomes that the current SCOTUS is no longer legitimate. Before the election this year, even.

    What's the remedy for that?

    Things not to be discussed on this forum.

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  • Dark_SideDark_Side Registered User regular
    If the US political apparatus was still functioning, court reform. But at this point I don't see how this all doesn't end in civil upheaval and riots. Because eventually Democratic states and possibly cities are going to refuse to follow the court's orders.

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  • monikermoniker Registered User regular
    DarkPrimus wrote: »
    I admit I would prefer if they destroy their legitimacy before they're in a position to decide the next election.

    Okay, let's say that the general public perception becomes that the current SCOTUS is no longer legitimate. Before the election this year, even.

    What's the remedy for that? Because without the vote turning into the Democrats getting 2/3rds of the Senate and holding onto control of the House in the 2022 elections, the only means within the system I see is Biden going "Okay time to increase the size of SCOTUS" and packing the damn thing. Which would still require enough Dem votes to play along.

    The thing about enforcing laws is that there isn't enough law enforcement to actually compel people. As we've seen with COVID and masking or other policies that were basically toothless in the face of people not wanting to bother and willing to bear the social sanction. A Court without public legitimacy is one that will struggle to have it's Opinions followed in anything other than, say, 'all deliberate speed'

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  • TetraNitroCubaneTetraNitroCubane The Djinnerator At the bottom of a bottleRegistered User regular
    moniker wrote: »
    DarkPrimus wrote: »
    I admit I would prefer if they destroy their legitimacy before they're in a position to decide the next election.

    Okay, let's say that the general public perception becomes that the current SCOTUS is no longer legitimate. Before the election this year, even.

    What's the remedy for that? Because without the vote turning into the Democrats getting 2/3rds of the Senate and holding onto control of the House in the 2022 elections, the only means within the system I see is Biden going "Okay time to increase the size of SCOTUS" and packing the damn thing. Which would still require enough Dem votes to play along.

    The thing about enforcing laws is that there isn't enough law enforcement to actually compel people. As we've seen with COVID and masking or other policies that were basically toothless in the face of people not wanting to bother and willing to bear the social sanction. A Court without public legitimacy is one that will struggle to have it's Opinions followed in anything other than, say, 'all deliberate speed'

    COVID policy enforcement was toothless because law enforcement had no desire to actually heed it, not because they were spread too thin.

    The police have been almost universally Pro-COVID.

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  • SeñorAmorSeñorAmor !!! Registered User regular
    DarkPrimus wrote: »
    I wonder what they get rid of next, interracial or gay marriage, or if they'll do a twofer

    The draft specifically calls out Lawrence v Texas and Obergefell v. Hodges as cases similar to Roe v Wade in that they are rights "not deeply rooted in history" and lacking implicit Constitutional protection.

    This really bugs me. What's the accepted definition of "deeply" here? How many years until something is "deeply rooted in history"? 50? 100? What if it's 200 years but something has only been around for 199 years? There's a lot of shit "deeply rooted in history" that's ridiculously bad and a lot of very new stuff that's been good thus far. Effect on the populace should be a much higher-weighted metric for something than judging something based on how long it's existed.

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  • DarkPrimusDarkPrimus Registered User regular
    SeñorAmor wrote: »
    DarkPrimus wrote: »
    I wonder what they get rid of next, interracial or gay marriage, or if they'll do a twofer

    The draft specifically calls out Lawrence v Texas and Obergefell v. Hodges as cases similar to Roe v Wade in that they are rights "not deeply rooted in history" and lacking implicit Constitutional protection.

    This really bugs me. What's the accepted definition of "deeply" here? How many years until something is "deeply rooted in history"? 50? 100? What if it's 200 years but something has only been around for 199 years? There's a lot of shit "deeply rooted in history" that's ridiculously bad and a lot of very new stuff that's been good thus far. Effect on the populace should be a much higher-weighted metric for something than judging something based on how long it's existed.

    Whatever Alito feels like. He has a history of doing supposed "exceptional carve-outs" only to use the supposed exceptional carve-out to further carve away protections even against groups he specifically identifies as exempt in the same decision he's citing.

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  • daveNYCdaveNYC Why universe hate Waspinator? Registered User regular
    SeñorAmor wrote: »
    DarkPrimus wrote: »
    I wonder what they get rid of next, interracial or gay marriage, or if they'll do a twofer

    The draft specifically calls out Lawrence v Texas and Obergefell v. Hodges as cases similar to Roe v Wade in that they are rights "not deeply rooted in history" and lacking implicit Constitutional protection.

    This really bugs me. What's the accepted definition of "deeply" here? How many years until something is "deeply rooted in history"? 50? 100? What if it's 200 years but something has only been around for 199 years? There's a lot of shit "deeply rooted in history" that's ridiculously bad and a lot of very new stuff that's been good thus far. Effect on the populace should be a much higher-weighted metric for something than judging something based on how long it's existed.

    Irrelevant. The SCOTUS already ignored the second half of the 15th amendment (The Congress shall have the power to enforce this article by appropriate legislation.) in order to nuke preclearance in Shelby. The 'deeply rooted in history' is just putting an Originalism spin on "Because 'Fuck you', that's why."

    Shut up, Mr. Burton! You were not brought upon this world to get it!
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  • spool32spool32 Contrary Library Registered User regular
    DarkPrimus wrote: »
    SeñorAmor wrote: »
    DarkPrimus wrote: »
    I wonder what they get rid of next, interracial or gay marriage, or if they'll do a twofer

    The draft specifically calls out Lawrence v Texas and Obergefell v. Hodges as cases similar to Roe v Wade in that they are rights "not deeply rooted in history" and lacking implicit Constitutional protection.

    This really bugs me. What's the accepted definition of "deeply" here? How many years until something is "deeply rooted in history"? 50? 100? What if it's 200 years but something has only been around for 199 years? There's a lot of shit "deeply rooted in history" that's ridiculously bad and a lot of very new stuff that's been good thus far. Effect on the populace should be a much higher-weighted metric for something than judging something based on how long it's existed.

    Whatever Alito feels like. He has a history of doing supposed "exceptional carve-outs" only to use the supposed exceptional carve-out to further carve away protections even against groups he specifically identifies as exempt in the same decision he's citing.

    Can you give an example of this?

  • SiliconStewSiliconStew Registered User regular
    SeñorAmor wrote: »
    DarkPrimus wrote: »
    I wonder what they get rid of next, interracial or gay marriage, or if they'll do a twofer

    The draft specifically calls out Lawrence v Texas and Obergefell v. Hodges as cases similar to Roe v Wade in that they are rights "not deeply rooted in history" and lacking implicit Constitutional protection.

    This really bugs me. What's the accepted definition of "deeply" here? How many years until something is "deeply rooted in history"? 50? 100? What if it's 200 years but something has only been around for 199 years? There's a lot of shit "deeply rooted in history" that's ridiculously bad and a lot of very new stuff that's been good thus far. Effect on the populace should be a much higher-weighted metric for something than judging something based on how long it's existed.

    There isn't one. It's bullshit Alito just made up because they have no actual legal basis for the ruling.

    Just remember that half the people you meet are below average intelligence.
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  • monikermoniker Registered User regular
    SeñorAmor wrote: »
    DarkPrimus wrote: »
    I wonder what they get rid of next, interracial or gay marriage, or if they'll do a twofer

    The draft specifically calls out Lawrence v Texas and Obergefell v. Hodges as cases similar to Roe v Wade in that they are rights "not deeply rooted in history" and lacking implicit Constitutional protection.

    This really bugs me. What's the accepted definition of "deeply" here? How many years until something is "deeply rooted in history"? 50? 100? What if it's 200 years but something has only been around for 199 years? There's a lot of shit "deeply rooted in history" that's ridiculously bad and a lot of very new stuff that's been good thus far. Effect on the populace should be a much higher-weighted metric for something than judging something based on how long it's existed.

    Roe is 50 years old, so...

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  • Captain InertiaCaptain Inertia Registered User regular
    SeñorAmor wrote: »
    DarkPrimus wrote: »
    I wonder what they get rid of next, interracial or gay marriage, or if they'll do a twofer

    The draft specifically calls out Lawrence v Texas and Obergefell v. Hodges as cases similar to Roe v Wade in that they are rights "not deeply rooted in history" and lacking implicit Constitutional protection.

    This really bugs me. What's the accepted definition of "deeply" here? How many years until something is "deeply rooted in history"? 50? 100? What if it's 200 years but something has only been around for 199 years? There's a lot of shit "deeply rooted in history" that's ridiculously bad and a lot of very new stuff that's been good thus far. Effect on the populace should be a much higher-weighted metric for something than judging something based on how long it's existed.

    It’s a euphemism for “doesn’t make mediocre white men uncomfortable”

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  • MorganVMorganV Registered User regular
    SeñorAmor wrote: »
    DarkPrimus wrote: »
    I wonder what they get rid of next, interracial or gay marriage, or if they'll do a twofer

    The draft specifically calls out Lawrence v Texas and Obergefell v. Hodges as cases similar to Roe v Wade in that they are rights "not deeply rooted in history" and lacking implicit Constitutional protection.

    This really bugs me. What's the accepted definition of "deeply" here? How many years until something is "deeply rooted in history"? 50? 100? What if it's 200 years but something has only been around for 199 years? There's a lot of shit "deeply rooted in history" that's ridiculously bad and a lot of very new stuff that's been good thus far. Effect on the populace should be a much higher-weighted metric for something than judging something based on how long it's existed.

    It’s a euphemism for “doesn’t make mediocre white men uncomfortable”

    Which dovetails neatly with "independent women, non-whites, and non-straight people having any rights make mediocre white men uncomfortable"

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  • DarkPrimusDarkPrimus Registered User regular
    edited May 13
    spool32 wrote: »
    DarkPrimus wrote: »
    SeñorAmor wrote: »
    DarkPrimus wrote: »
    I wonder what they get rid of next, interracial or gay marriage, or if they'll do a twofer

    The draft specifically calls out Lawrence v Texas and Obergefell v. Hodges as cases similar to Roe v Wade in that they are rights "not deeply rooted in history" and lacking implicit Constitutional protection.

    This really bugs me. What's the accepted definition of "deeply" here? How many years until something is "deeply rooted in history"? 50? 100? What if it's 200 years but something has only been around for 199 years? There's a lot of shit "deeply rooted in history" that's ridiculously bad and a lot of very new stuff that's been good thus far. Effect on the populace should be a much higher-weighted metric for something than judging something based on how long it's existed.

    Whatever Alito feels like. He has a history of doing supposed "exceptional carve-outs" only to use the supposed exceptional carve-out to further carve away protections even against groups he specifically identifies as exempt in the same decision he's citing.

    Can you give an example of this?


    Another thing, per [Jamelle Bouie]'s great column, is that Alito specifically has a history of writing opinions where he pretends to ringfence a decision, then extends it in the next opinion. His three anti-public-employee-union opinions - Knox, Harris, Janus - were like that.

    Harris v Quinn was especially egregious in this regard. He developed a neologism, the "fully-fledged public employee," to make clear he wasn't including them in that decision, then went right ahead and included them in Janus v AFSCME.

    (The specific Jamelle Bouie piece Dave Kemper is replying to here, but it is more about the aims of the conservative court more than Alito's personal history. Bouie has written many a column on SCOTUS history though, so it would not surprise me if Kemper is recalling another one or three when making that comment.)

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  • Dark_SideDark_Side Registered User regular
    I mean really it's supportin
    moniker wrote: »
    SeñorAmor wrote: »
    DarkPrimus wrote: »
    I wonder what they get rid of next, interracial or gay marriage, or if they'll do a twofer

    The draft specifically calls out Lawrence v Texas and Obergefell v. Hodges as cases similar to Roe v Wade in that they are rights "not deeply rooted in history" and lacking implicit Constitutional protection.

    This really bugs me. What's the accepted definition of "deeply" here? How many years until something is "deeply rooted in history"? 50? 100? What if it's 200 years but something has only been around for 199 years? There's a lot of shit "deeply rooted in history" that's ridiculously bad and a lot of very new stuff that's been good thus far. Effect on the populace should be a much higher-weighted metric for something than judging something based on how long it's existed.

    Roe is 50 years old, so...

    It's just a renewal of the same old originalism bullshit. The natural counterpoint is to question Alito on qualified immunity. Because the court has made it abundantly clearly that they're tired of judges kicking QI cases up to them. But there is nothing in the constitution about QI either. And QI as a judicial concept for police officers isn't all that old either.

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  • tbloxhamtbloxham Registered User regular

    MorganV wrote: »
    SeñorAmor wrote: »
    DarkPrimus wrote: »
    I wonder what they get rid of next, interracial or gay marriage, or if they'll do a twofer

    The draft specifically calls out Lawrence v Texas and Obergefell v. Hodges as cases similar to Roe v Wade in that they are rights "not deeply rooted in history" and lacking implicit Constitutional protection.

    This really bugs me. What's the accepted definition of "deeply" here? How many years until something is "deeply rooted in history"? 50? 100? What if it's 200 years but something has only been around for 199 years? There's a lot of shit "deeply rooted in history" that's ridiculously bad and a lot of very new stuff that's been good thus far. Effect on the populace should be a much higher-weighted metric for something than judging something based on how long it's existed.

    It’s a euphemism for “doesn’t make mediocre white men uncomfortable”

    Which dovetails neatly with "independent women, non-whites, and non-straight people having any rights make mediocre white men uncomfortable"

    I'm a mediocre white man, and I manage to be perfectly comfortable with people who aren't like me doing the things they want to do.

    Honestly, while both personal and systematic racism/sexism/classism and so on are a huge part of WHY our country struggles, I almost think that blaming them lets some people off too easy. As if its somehow an excuse for powerful white people. If you are the head of the system, then you can DO something about systematic racism. If you are an individual white person, you don't need to BE personally racist. Many people are personally racist. Sometimes the system helps make them that way. Systematic racism is not your personal fault and is more important than your personal behavior, even if you (a white person without power) are racist. UNLESS, you are a damn supreme court justice writing laws to enshrine systematic racism in the system

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  • HakkekageHakkekage Space Whore Academy summa cum laudeRegistered User regular
    Polaritie wrote: »
    MrMister wrote: »
    My understanding is that there are two main reasons the 9th amendment is not commonly cited:

    1) There's a reasonable historical argument that the 9th and 10th amendments are purely redundant with the rest of the text--they were included only to reassure some signers that the amendments comprising the bill of rights weren't going to transform the government from one of enumerated powers into one which was allowed to do anything not explicitly contradicted by Amendments 1-8. If that's accurate, there will never be a need to cite the 9th and 10th directly, as all they do is reiterate what is manifest in the original document.

    2) The 9th says nothing about what those rights still reserved to the people are supposed to be, and is therefore procedurally unhelpful. If judges are allowed to find whatever rights they want in the 9th, then the judiciary really is an unelected super-legislature with near-infinite powers. Not that this has always dissuaded judges--as far as I can tell as a non-lawyer, the doctrine of "substantive due process" is just the same as "whatever rights I want, but I claim that they fall under the 14th instead of the 9th." Nonetheless, judges who want to be, or at least be perceived as, not merely imposing their policy preferences may correspondingly want to avoid basing their rulings in tendentious interpretations of the highly indeterminate notion of "rights reserved to the people."

    The 9th is difficult.

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

    That said, I do feel that the judiciary is generally in violation of this, because if you say the courts can only recognize rights explicitly named in the constitution you have, in fact, construed the enumeration of some (and not others) in such a way as to "deny or disparage" the rest.

    Unfortunately the only way to be consistent with the 9th is for the judiciary to decide whether a right not enumerated in the constitution exists on its own merits. And if it does, it must be protected equally to those enumerated (because otherwise you've disparaged it). And you may not use it not being enumerated as a rationale. The problem of course is that at this point you basically have nothing to go on, except you must make a decision. Congress could recognize a right by statute, in which case the courts would have a clear argument to hold it equal to those enumerated in the constitution. But beyond that it's basically philosophy in various flavors, which is understandably unappealing to the judiciary. But it's the only thing that satisfies the 9th.

    The 9th Amd is a rule of construction. It is not a substantive rule. It does not create, assign, define, or reserve rights of the people as against the government. It instructs the interpreter not to construe from the enumeration of rights that no other rights are constitutionally protected; that there are rights reserved to the people and the bill of rights should not be read to be an exhaustive list.

    The judiciary is not "in violation" of this when it decides that, for example, there is no unfettered right to contract (as the Lochner era courts insisted there was). The source of most rights you are familiar with today is the 14th Amd, specifically due process and equal protection. Many -- not all -- of the bill of rights (Amds. 1-8) only apply to the states because they have been incorporated through the 14th to the state governments. Otherwise, the rights in the bill of rights only applied as against the federal government and not as against the states.

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  • PolaritiePolaritie Sleepy Registered User regular
    edited May 13
    Hakkekage wrote: »
    Polaritie wrote: »
    MrMister wrote: »
    My understanding is that there are two main reasons the 9th amendment is not commonly cited:

    1) There's a reasonable historical argument that the 9th and 10th amendments are purely redundant with the rest of the text--they were included only to reassure some signers that the amendments comprising the bill of rights weren't going to transform the government from one of enumerated powers into one which was allowed to do anything not explicitly contradicted by Amendments 1-8. If that's accurate, there will never be a need to cite the 9th and 10th directly, as all they do is reiterate what is manifest in the original document.

    2) The 9th says nothing about what those rights still reserved to the people are supposed to be, and is therefore procedurally unhelpful. If judges are allowed to find whatever rights they want in the 9th, then the judiciary really is an unelected super-legislature with near-infinite powers. Not that this has always dissuaded judges--as far as I can tell as a non-lawyer, the doctrine of "substantive due process" is just the same as "whatever rights I want, but I claim that they fall under the 14th instead of the 9th." Nonetheless, judges who want to be, or at least be perceived as, not merely imposing their policy preferences may correspondingly want to avoid basing their rulings in tendentious interpretations of the highly indeterminate notion of "rights reserved to the people."

    The 9th is difficult.

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

    That said, I do feel that the judiciary is generally in violation of this, because if you say the courts can only recognize rights explicitly named in the constitution you have, in fact, construed the enumeration of some (and not others) in such a way as to "deny or disparage" the rest.

    Unfortunately the only way to be consistent with the 9th is for the judiciary to decide whether a right not enumerated in the constitution exists on its own merits. And if it does, it must be protected equally to those enumerated (because otherwise you've disparaged it). And you may not use it not being enumerated as a rationale. The problem of course is that at this point you basically have nothing to go on, except you must make a decision. Congress could recognize a right by statute, in which case the courts would have a clear argument to hold it equal to those enumerated in the constitution. But beyond that it's basically philosophy in various flavors, which is understandably unappealing to the judiciary. But it's the only thing that satisfies the 9th.

    The 9th Amd is a rule of construction. It is not a substantive rule. It does not create, assign, define, or reserve rights of the people as against the government. It instructs the interpreter not to construe from the enumeration of rights that no other rights are constitutionally protected; that there are rights reserved to the people and the bill of rights should not be read to be an exhaustive list.

    The judiciary is not "in violation" of this when it decides that, for example, there is no unfettered right to contract (as the Lochner era courts insisted there was). The source of most rights you are familiar with today is the 14th Amd, specifically due process and equal protection. Many -- not all -- of the bill of rights (Amds. 1-8) only apply to the states because they have been incorporated through the 14th to the state governments. Otherwise, the rights in the bill of rights only applied as against the federal government and not as against the states.

    When I say I think the judiciary is violating it I mean that they're not following that instruction to them. It doesn't stop the courts from affirming or denying a right, it restricts what grounds they can do so on. An opinion saying the Lochner court was wrong because it's not in the constitution would be in violation. An opinion saying Lochner is wrong because that's absurd is totally fine (with respect to the 9th).

    The conflict I see with holding to it is that it also implicitly means the judiciary can recognize rights beyond those in the constitution, but doesn't provide any guidance for how, which leaves it wide open (and hence more a matter of philosophy). I'd argue that it also means that any such rights must be held as equal to those explicit in the constitution, meaning they can meaningfully restrain Congress (because "or disparage" - though strictly speaking that wouldn't require them to be on the same footing, just not "you have this right but it doesn't matter because it's not in the constitution").

    Basically I think the 9th implicitly grants the courts a lot of leeway to recognize rights as legally protected, but that there's a lot of issues with doing so in practice because it's left wide open what those rights are.

    If we go back to the post I was replying to, I find the first point to be obviously wrong (in regards to the 9th). The second point is broadly correct in that it raises a problem in that it would grant the courts a lot of latitude to overturn things, but it's not like other parts of the constitution aren't regularly interpreted in ridiculously broad fashion anyways (grumble grumble commerce, "neccessary and proper", etc).

    I'll be honest, I'm not sure how I was intended to read your post though, I can't tell if I'm intended to take that as disagreement, correction, etc.

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  • monikermoniker Registered User regular
    Hakkekage wrote: »
    Polaritie wrote: »
    MrMister wrote: »
    My understanding is that there are two main reasons the 9th amendment is not commonly cited:

    1) There's a reasonable historical argument that the 9th and 10th amendments are purely redundant with the rest of the text--they were included only to reassure some signers that the amendments comprising the bill of rights weren't going to transform the government from one of enumerated powers into one which was allowed to do anything not explicitly contradicted by Amendments 1-8. If that's accurate, there will never be a need to cite the 9th and 10th directly, as all they do is reiterate what is manifest in the original document.

    2) The 9th says nothing about what those rights still reserved to the people are supposed to be, and is therefore procedurally unhelpful. If judges are allowed to find whatever rights they want in the 9th, then the judiciary really is an unelected super-legislature with near-infinite powers. Not that this has always dissuaded judges--as far as I can tell as a non-lawyer, the doctrine of "substantive due process" is just the same as "whatever rights I want, but I claim that they fall under the 14th instead of the 9th." Nonetheless, judges who want to be, or at least be perceived as, not merely imposing their policy preferences may correspondingly want to avoid basing their rulings in tendentious interpretations of the highly indeterminate notion of "rights reserved to the people."

    The 9th is difficult.

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

    That said, I do feel that the judiciary is generally in violation of this, because if you say the courts can only recognize rights explicitly named in the constitution you have, in fact, construed the enumeration of some (and not others) in such a way as to "deny or disparage" the rest.

    Unfortunately the only way to be consistent with the 9th is for the judiciary to decide whether a right not enumerated in the constitution exists on its own merits. And if it does, it must be protected equally to those enumerated (because otherwise you've disparaged it). And you may not use it not being enumerated as a rationale. The problem of course is that at this point you basically have nothing to go on, except you must make a decision. Congress could recognize a right by statute, in which case the courts would have a clear argument to hold it equal to those enumerated in the constitution. But beyond that it's basically philosophy in various flavors, which is understandably unappealing to the judiciary. But it's the only thing that satisfies the 9th.

    The 9th Amd is a rule of construction. It is not a substantive rule. It does not create, assign, define, or reserve rights of the people as against the government. It instructs the interpreter not to construe from the enumeration of rights that no other rights are constitutionally protected; that there are rights reserved to the people and the bill of rights should not be read to be an exhaustive list.

    The judiciary is not "in violation" of this when it decides that, for example, there is no unfettered right to contract (as the Lochner era courts insisted there was). The source of most rights you are familiar with today is the 14th Amd, specifically due process and equal protection. Many -- not all -- of the bill of rights (Amds. 1-8) only apply to the states because they have been incorporated through the 14th to the state governments. Otherwise, the rights in the bill of rights only applied as against the federal government and not as against the states.

    Though I'll raise hell of I'm forced to Quarter a State Trooper or Guardsman in my house during times of peace...

    Hakkekage
  • PolaritiePolaritie Sleepy Registered User regular
    moniker wrote: »
    Hakkekage wrote: »
    Polaritie wrote: »
    MrMister wrote: »
    My understanding is that there are two main reasons the 9th amendment is not commonly cited:

    1) There's a reasonable historical argument that the 9th and 10th amendments are purely redundant with the rest of the text--they were included only to reassure some signers that the amendments comprising the bill of rights weren't going to transform the government from one of enumerated powers into one which was allowed to do anything not explicitly contradicted by Amendments 1-8. If that's accurate, there will never be a need to cite the 9th and 10th directly, as all they do is reiterate what is manifest in the original document.

    2) The 9th says nothing about what those rights still reserved to the people are supposed to be, and is therefore procedurally unhelpful. If judges are allowed to find whatever rights they want in the 9th, then the judiciary really is an unelected super-legislature with near-infinite powers. Not that this has always dissuaded judges--as far as I can tell as a non-lawyer, the doctrine of "substantive due process" is just the same as "whatever rights I want, but I claim that they fall under the 14th instead of the 9th." Nonetheless, judges who want to be, or at least be perceived as, not merely imposing their policy preferences may correspondingly want to avoid basing their rulings in tendentious interpretations of the highly indeterminate notion of "rights reserved to the people."

    The 9th is difficult.

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

    That said, I do feel that the judiciary is generally in violation of this, because if you say the courts can only recognize rights explicitly named in the constitution you have, in fact, construed the enumeration of some (and not others) in such a way as to "deny or disparage" the rest.

    Unfortunately the only way to be consistent with the 9th is for the judiciary to decide whether a right not enumerated in the constitution exists on its own merits. And if it does, it must be protected equally to those enumerated (because otherwise you've disparaged it). And you may not use it not being enumerated as a rationale. The problem of course is that at this point you basically have nothing to go on, except you must make a decision. Congress could recognize a right by statute, in which case the courts would have a clear argument to hold it equal to those enumerated in the constitution. But beyond that it's basically philosophy in various flavors, which is understandably unappealing to the judiciary. But it's the only thing that satisfies the 9th.

    The 9th Amd is a rule of construction. It is not a substantive rule. It does not create, assign, define, or reserve rights of the people as against the government. It instructs the interpreter not to construe from the enumeration of rights that no other rights are constitutionally protected; that there are rights reserved to the people and the bill of rights should not be read to be an exhaustive list.

    The judiciary is not "in violation" of this when it decides that, for example, there is no unfettered right to contract (as the Lochner era courts insisted there was). The source of most rights you are familiar with today is the 14th Amd, specifically due process and equal protection. Many -- not all -- of the bill of rights (Amds. 1-8) only apply to the states because they have been incorporated through the 14th to the state governments. Otherwise, the rights in the bill of rights only applied as against the federal government and not as against the states.

    Though I'll raise hell of I'm forced to Quarter a State Trooper or Guardsman in my house during times of peace...

    When was the last time the 3rd came up in court, anyways? That feels like by far the narrowest statement in the bill of rights.

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  • AngelHedgieAngelHedgie Registered User regular
    moniker wrote: »
    Hakkekage wrote: »
    Polaritie wrote: »
    MrMister wrote: »
    My understanding is that there are two main reasons the 9th amendment is not commonly cited:

    1) There's a reasonable historical argument that the 9th and 10th amendments are purely redundant with the rest of the text--they were included only to reassure some signers that the amendments comprising the bill of rights weren't going to transform the government from one of enumerated powers into one which was allowed to do anything not explicitly contradicted by Amendments 1-8. If that's accurate, there will never be a need to cite the 9th and 10th directly, as all they do is reiterate what is manifest in the original document.

    2) The 9th says nothing about what those rights still reserved to the people are supposed to be, and is therefore procedurally unhelpful. If judges are allowed to find whatever rights they want in the 9th, then the judiciary really is an unelected super-legislature with near-infinite powers. Not that this has always dissuaded judges--as far as I can tell as a non-lawyer, the doctrine of "substantive due process" is just the same as "whatever rights I want, but I claim that they fall under the 14th instead of the 9th." Nonetheless, judges who want to be, or at least be perceived as, not merely imposing their policy preferences may correspondingly want to avoid basing their rulings in tendentious interpretations of the highly indeterminate notion of "rights reserved to the people."

    The 9th is difficult.

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

    That said, I do feel that the judiciary is generally in violation of this, because if you say the courts can only recognize rights explicitly named in the constitution you have, in fact, construed the enumeration of some (and not others) in such a way as to "deny or disparage" the rest.

    Unfortunately the only way to be consistent with the 9th is for the judiciary to decide whether a right not enumerated in the constitution exists on its own merits. And if it does, it must be protected equally to those enumerated (because otherwise you've disparaged it). And you may not use it not being enumerated as a rationale. The problem of course is that at this point you basically have nothing to go on, except you must make a decision. Congress could recognize a right by statute, in which case the courts would have a clear argument to hold it equal to those enumerated in the constitution. But beyond that it's basically philosophy in various flavors, which is understandably unappealing to the judiciary. But it's the only thing that satisfies the 9th.

    The 9th Amd is a rule of construction. It is not a substantive rule. It does not create, assign, define, or reserve rights of the people as against the government. It instructs the interpreter not to construe from the enumeration of rights that no other rights are constitutionally protected; that there are rights reserved to the people and the bill of rights should not be read to be an exhaustive list.

    The judiciary is not "in violation" of this when it decides that, for example, there is no unfettered right to contract (as the Lochner era courts insisted there was). The source of most rights you are familiar with today is the 14th Amd, specifically due process and equal protection. Many -- not all -- of the bill of rights (Amds. 1-8) only apply to the states because they have been incorporated through the 14th to the state governments. Otherwise, the rights in the bill of rights only applied as against the federal government and not as against the states.

    Though I'll raise hell of I'm forced to Quarter a State Trooper or Guardsman in my house during times of peace...

    There has been in the history of the Supreme Court only one Third Amendment case (involving striking prison guards who lived on site suing over the prison using their apartments to house scabs), and they wound up punting on it all.

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  • PolaritiePolaritie Sleepy Registered User regular
    That sounds like a violation of the spirit but not the letter.

    Though I want to say under modern jurisprudence that would at least require compensation.

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  • Knight_Knight_ Dead Dead Dead Registered User regular
    edited May 13
    Polaritie wrote: »
    moniker wrote: »
    Hakkekage wrote: »
    Polaritie wrote: »
    MrMister wrote: »
    My understanding is that there are two main reasons the 9th amendment is not commonly cited:

    1) There's a reasonable historical argument that the 9th and 10th amendments are purely redundant with the rest of the text--they were included only to reassure some signers that the amendments comprising the bill of rights weren't going to transform the government from one of enumerated powers into one which was allowed to do anything not explicitly contradicted by Amendments 1-8. If that's accurate, there will never be a need to cite the 9th and 10th directly, as all they do is reiterate what is manifest in the original document.

    2) The 9th says nothing about what those rights still reserved to the people are supposed to be, and is therefore procedurally unhelpful. If judges are allowed to find whatever rights they want in the 9th, then the judiciary really is an unelected super-legislature with near-infinite powers. Not that this has always dissuaded judges--as far as I can tell as a non-lawyer, the doctrine of "substantive due process" is just the same as "whatever rights I want, but I claim that they fall under the 14th instead of the 9th." Nonetheless, judges who want to be, or at least be perceived as, not merely imposing their policy preferences may correspondingly want to avoid basing their rulings in tendentious interpretations of the highly indeterminate notion of "rights reserved to the people."

    The 9th is difficult.

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

    That said, I do feel that the judiciary is generally in violation of this, because if you say the courts can only recognize rights explicitly named in the constitution you have, in fact, construed the enumeration of some (and not others) in such a way as to "deny or disparage" the rest.

    Unfortunately the only way to be consistent with the 9th is for the judiciary to decide whether a right not enumerated in the constitution exists on its own merits. And if it does, it must be protected equally to those enumerated (because otherwise you've disparaged it). And you may not use it not being enumerated as a rationale. The problem of course is that at this point you basically have nothing to go on, except you must make a decision. Congress could recognize a right by statute, in which case the courts would have a clear argument to hold it equal to those enumerated in the constitution. But beyond that it's basically philosophy in various flavors, which is understandably unappealing to the judiciary. But it's the only thing that satisfies the 9th.

    The 9th Amd is a rule of construction. It is not a substantive rule. It does not create, assign, define, or reserve rights of the people as against the government. It instructs the interpreter not to construe from the enumeration of rights that no other rights are constitutionally protected; that there are rights reserved to the people and the bill of rights should not be read to be an exhaustive list.

    The judiciary is not "in violation" of this when it decides that, for example, there is no unfettered right to contract (as the Lochner era courts insisted there was). The source of most rights you are familiar with today is the 14th Amd, specifically due process and equal protection. Many -- not all -- of the bill of rights (Amds. 1-8) only apply to the states because they have been incorporated through the 14th to the state governments. Otherwise, the rights in the bill of rights only applied as against the federal government and not as against the states.

    Though I'll raise hell of I'm forced to Quarter a State Trooper or Guardsman in my house during times of peace...

    When was the last time the 3rd came up in court, anyways? That feels like by far the narrowest statement in the bill of rights.

    blame the british for that one

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  • PolaritiePolaritie Sleepy Registered User regular
    Knight_ wrote: »
    Polaritie wrote: »
    moniker wrote: »
    Hakkekage wrote: »
    Polaritie wrote: »
    MrMister wrote: »
    My understanding is that there are two main reasons the 9th amendment is not commonly cited:

    1) There's a reasonable historical argument that the 9th and 10th amendments are purely redundant with the rest of the text--they were included only to reassure some signers that the amendments comprising the bill of rights weren't going to transform the government from one of enumerated powers into one which was allowed to do anything not explicitly contradicted by Amendments 1-8. If that's accurate, there will never be a need to cite the 9th and 10th directly, as all they do is reiterate what is manifest in the original document.

    2) The 9th says nothing about what those rights still reserved to the people are supposed to be, and is therefore procedurally unhelpful. If judges are allowed to find whatever rights they want in the 9th, then the judiciary really is an unelected super-legislature with near-infinite powers. Not that this has always dissuaded judges--as far as I can tell as a non-lawyer, the doctrine of "substantive due process" is just the same as "whatever rights I want, but I claim that they fall under the 14th instead of the 9th." Nonetheless, judges who want to be, or at least be perceived as, not merely imposing their policy preferences may correspondingly want to avoid basing their rulings in tendentious interpretations of the highly indeterminate notion of "rights reserved to the people."

    The 9th is difficult.

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

    That said, I do feel that the judiciary is generally in violation of this, because if you say the courts can only recognize rights explicitly named in the constitution you have, in fact, construed the enumeration of some (and not others) in such a way as to "deny or disparage" the rest.

    Unfortunately the only way to be consistent with the 9th is for the judiciary to decide whether a right not enumerated in the constitution exists on its own merits. And if it does, it must be protected equally to those enumerated (because otherwise you've disparaged it). And you may not use it not being enumerated as a rationale. The problem of course is that at this point you basically have nothing to go on, except you must make a decision. Congress could recognize a right by statute, in which case the courts would have a clear argument to hold it equal to those enumerated in the constitution. But beyond that it's basically philosophy in various flavors, which is understandably unappealing to the judiciary. But it's the only thing that satisfies the 9th.

    The 9th Amd is a rule of construction. It is not a substantive rule. It does not create, assign, define, or reserve rights of the people as against the government. It instructs the interpreter not to construe from the enumeration of rights that no other rights are constitutionally protected; that there are rights reserved to the people and the bill of rights should not be read to be an exhaustive list.

    The judiciary is not "in violation" of this when it decides that, for example, there is no unfettered right to contract (as the Lochner era courts insisted there was). The source of most rights you are familiar with today is the 14th Amd, specifically due process and equal protection. Many -- not all -- of the bill of rights (Amds. 1-8) only apply to the states because they have been incorporated through the 14th to the state governments. Otherwise, the rights in the bill of rights only applied as against the federal government and not as against the states.

    Though I'll raise hell of I'm forced to Quarter a State Trooper or Guardsman in my house during times of peace...

    When was the last time the 3rd came up in court, anyways? That feels like by far the narrowest statement in the bill of rights.

    blame the british for that one

    The British are responsible for most of the bill of rights really. The entirety of it is basically a list of things European countries had been pulling and the states wanted to be sure the federal government couldn't.

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  • monikermoniker Registered User regular
    Polaritie wrote: »
    Knight_ wrote: »
    Polaritie wrote: »
    moniker wrote: »
    Hakkekage wrote: »
    Polaritie wrote: »
    MrMister wrote: »
    My understanding is that there are two main reasons the 9th amendment is not commonly cited:

    1) There's a reasonable historical argument that the 9th and 10th amendments are purely redundant with the rest of the text--they were included only to reassure some signers that the amendments comprising the bill of rights weren't going to transform the government from one of enumerated powers into one which was allowed to do anything not explicitly contradicted by Amendments 1-8. If that's accurate, there will never be a need to cite the 9th and 10th directly, as all they do is reiterate what is manifest in the original document.

    2) The 9th says nothing about what those rights still reserved to the people are supposed to be, and is therefore procedurally unhelpful. If judges are allowed to find whatever rights they want in the 9th, then the judiciary really is an unelected super-legislature with near-infinite powers. Not that this has always dissuaded judges--as far as I can tell as a non-lawyer, the doctrine of "substantive due process" is just the same as "whatever rights I want, but I claim that they fall under the 14th instead of the 9th." Nonetheless, judges who want to be, or at least be perceived as, not merely imposing their policy preferences may correspondingly want to avoid basing their rulings in tendentious interpretations of the highly indeterminate notion of "rights reserved to the people."

    The 9th is difficult.

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

    That said, I do feel that the judiciary is generally in violation of this, because if you say the courts can only recognize rights explicitly named in the constitution you have, in fact, construed the enumeration of some (and not others) in such a way as to "deny or disparage" the rest.

    Unfortunately the only way to be consistent with the 9th is for the judiciary to decide whether a right not enumerated in the constitution exists on its own merits. And if it does, it must be protected equally to those enumerated (because otherwise you've disparaged it). And you may not use it not being enumerated as a rationale. The problem of course is that at this point you basically have nothing to go on, except you must make a decision. Congress could recognize a right by statute, in which case the courts would have a clear argument to hold it equal to those enumerated in the constitution. But beyond that it's basically philosophy in various flavors, which is understandably unappealing to the judiciary. But it's the only thing that satisfies the 9th.

    The 9th Amd is a rule of construction. It is not a substantive rule. It does not create, assign, define, or reserve rights of the people as against the government. It instructs the interpreter not to construe from the enumeration of rights that no other rights are constitutionally protected; that there are rights reserved to the people and the bill of rights should not be read to be an exhaustive list.

    The judiciary is not "in violation" of this when it decides that, for example, there is no unfettered right to contract (as the Lochner era courts insisted there was). The source of most rights you are familiar with today is the 14th Amd, specifically due process and equal protection. Many -- not all -- of the bill of rights (Amds. 1-8) only apply to the states because they have been incorporated through the 14th to the state governments. Otherwise, the rights in the bill of rights only applied as against the federal government and not as against the states.

    Though I'll raise hell of I'm forced to Quarter a State Trooper or Guardsman in my house during times of peace...

    When was the last time the 3rd came up in court, anyways? That feels like by far the narrowest statement in the bill of rights.

    blame the british for that one

    The British are responsible for most of the bill of rights really. The entirety of it is basically a list of things European countries had been pulling and the states wanted to be sure the federal government couldn't.

    I mean, the British are also responsible the rest of the Constitution, the Articles of Confederation, and the Declaration of Independence...

    Commander ZoomFencingsaxRedTideElvenshae
  • AngelHedgieAngelHedgie Registered User regular
    Polaritie wrote: »
    That sounds like a violation of the spirit but not the letter.

    Though I want to say under modern jurisprudence that would at least require compensation.

    The decision was pretty much "we are unable to rule because of the lack of Third Amendment jurisprudence."

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  • tbloxhamtbloxham Registered User regular
    If Alito was writing the constitution the third ammendment would say...

    "The government shall not communicate via tictoc videos"

    It was just something people were grumpy about at the time that they decided to slap on the constitution.

    "That is cool" - Abraham Lincoln
  • PolaritiePolaritie Sleepy Registered User regular
    Polaritie wrote: »
    That sounds like a violation of the spirit but not the letter.

    Though I want to say under modern jurisprudence that would at least require compensation.

    The decision was pretty much "we are unable to rule because of the lack of Third Amendment jurisprudence."

    ...somehow that's even more cowardice than I was expecting.

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  • Phoenix-DPhoenix-D Registered User regular
    Polaritie wrote: »
    Polaritie wrote: »
    That sounds like a violation of the spirit but not the letter.

    Though I want to say under modern jurisprudence that would at least require compensation.

    The decision was pretty much "we are unable to rule because of the lack of Third Amendment jurisprudence."

    ...somehow that's even more cowardice than I was expecting.

    Also circular!

    monikerDevoutlyApatheticCommander ZoomRingoSkeith
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