Quote:
Originally posted by Captain
Not a lot more. Think of what has been read into this:
"Congress shall make no law ... abridging the freedom of speech, or of the press ..."
Now the ninth is:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
I'd argue that the ninth was more widely discussed at the time of adoption than the first, since the first amendment was one for which there was fairly broad support for what each person understood the words to mean (everybody is for a free press - especially if you don't ask them to define it). The ninth, on the other hand, was specifically put there by Madison and the Virginians to address what they perceived of as the best argument the Federalists had against the bill, the argument that by listing rights others were disparaged. Because the role of the ninth was to win over the swing voters, I think we have a lot of inication of the founders' intent on the 9th, and so there really is a fair bit for the court to go on.
The more complex question of what the unemerated rights are and what level of protection is due them makes a lot of sense in the British tradition - a tradition of an unwritten constitution. Everyone making the arguments at the time was accustomed to referencing a "constitution" of rights going back to the Magna Carta essentially developed in common law. The 9th amendment refers to "all those" rights, you know, the rights they'd just fought a war over.
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My faith in strict constructionism is being shattered and no one is helping. This post is like a bomb. If the nineth Amendment was passed to insure that traditional rights were kept then there are common law rights.
The Amendment also seems to imply that these traditional rights trump any statutes passed by Congress. Just like the other enumerated rights.
And Sidd is wrong. It seems that the these common law rights trump government statutes. I belive that the English Constitution (which is really common law rights) seem to trump statutes.
So if there were common law rights created by British Courts that trump government statutes, then why can't American courts (and the Supreme Court) continue that tradition.
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