Making Baby Jesus Cry

[Mmmm, Burger (C.J.)]

Originally posted by Replaced_Texan
Ya'll really, really don't like that pesky 9th amendment, do you?

The problem with it is that it's a pandora's box. Say it includes something--how do you determine what it includes? Common understanding of rights at the time of enactment? Evolving standards of humanity? Ad hoc decisionmaking?

[Hank Chinaski]

Originally posted by Replaced_Texan
For the sake of my sanity, this entire board is on ignore. I can't help but click the damned link every now and then, though. Have your people pray for me.

And who's to blame for the poor state of the board? Has Ty taken responsibility?

I was passively attacking the other people speculating about Griswold, having ignored my typically illuminating earlier post.

[baltassoc]

Originally posted by Hank Chinaski
in any election where my vote for President matters- ie my state is in play- then the election will be lopsided for the Republican. So I'm willing to barter my vote.

Cool. Any other governors of states I don't live in you want me to not vote for?

[Captain]

Originally posted by Mmmm, Burger (C.J.)
The problem with it is that it's a pandora's box. Say it includes something--how do you determine what it includes? Common understanding of rights at the time of enactment? Evolving standards of humanity? Ad hoc decisionmaking?

Sounds like the Supreme Court's job description - figuring out the inscrutable.

[Gattigap]

Originally posted by Mmmm, Burger (C.J.)
That's a nice place to find it, if you're him, because then when the states ban abortion you can say, while, yes, the 14th amendment liberty clause includes privacy, passing legislation that limits it is constitutional, so long as due process is guaranteed. See Slaughterhouse cases.

BTW, if it's in that clause of the 14th, why not in the 5th as well, which has the same clause?

Understood. Biden didn't get into that at the time, so I dunno if Roberts feels that it's limited to the 14th, or extends to the others as well. I raise it only in response to bilmore's sniffling that only the wild-eyed droolers presume that it exists at all.

bilmore, is Roberts among the stoopid people too?

[Captain]

Originally posted by Hank Chinaski
And who's to blame for the poor state of the board? Has Ty taken responsibility?

I was passively attacking the other people speculating about Griswold, having ignored my typically illuminating earlier post.

I am finding this board interesting today - particularly Burger's posts.

[sgtclub]

Originally posted by Captain
I am finding this board interesting today - particularly Burger's posts.

It happens about 2x/month.

[Mmmm, Burger (C.J.)]

Originally posted by Captain
Sounds like the Supreme Court's job description - figuring out the inscrutable.

Usually there's more to go on than the 9th amend. provides.

[Replaced_Texan]

The New York Times transcript of the Roberts hearings today.

[Mmmm, Burger (C.J.)]

Originally posted by Replaced_Texan
Interesting thoughts by Marshall Wittmann, aka the Bull Moose, on the second Supreme Court nominee:
Marshall used to be McCain's press secretary, though he's turned Democratic in the last year or so.

What chance, though, does Bush have to nominate a sop to the Family Research Council? Or does Luttig/Alito/Wilkinson/jones become a sacrificial lamb after which the moderate gonzales slides through?

[Captain]

Originally posted by Mmmm, Burger (C.J.)
Usually there's more to go on than the 9th amend. provides.

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.

[SlaveNoMore]

Mmmm, Burger (C.J.)
What chance, though, does Bush have to nominate a sop to the Family Research Council? Or does Luttig/Alito/Wilkinson/jones become a sacrificial lamb after which the moderate gonzales slides through?

You think the Dems would risk breaking the filibuster compromise so close to mid-term elections?

[Mmmm, Burger (C.J.)]

Originally posted by Captain
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.

Widely discussed doesn't mean there was substantive.

Care to list "all those" rights? Seriously--I haven't recently boned up on my constitutional history.

[sebastian_dangerfield]

Originally posted by Hank Chinaski
Arguing that of course there is such a right- regardless of whether it is in the Constitution- would have been perhaps a more honest rationale. It was not, however, the holding of Griswold.

OK, so unless the SCOTUS rules on the right, or the right is codified in an amendment, we assume the acts such a right would allow are prohibitted? Isn't that a little like "guilty until proven innocent"? Are you suggesting that every behavior is prohibitted until and unless specifically allowed by constitution or SCOTUS ruling? That sounds pretty silly to me.

But like I said, strict constructionalism is silly. Its just a mechanism to preclude rights certain people don't think we ought to have.

[Mmmm, Burger (C.J.)]

Originally posted by SlaveNoMore
You think the Dems would risk breaking the filibuster compromise so close to mid-term elections?

Over one of those folks? Sure. And I'm not sure they'd have to break it, as I can see 5 Rs deciding they're better off without Bush.