Some arguments are just tiresome; it’s getting so boring pointing out the childishness of the following that in future perhaps we’ll simply link and refer as *res iudicata*. So, maybe for the last time, here’s a classic fallacious argument. Citing the deceased Henry J.Friendly’s unpublished opinion on abortion, George Will writes,
>The assertion of such a privacy right would, he said, invalidate “a great variety” of statutes that existed when the 14th Amendment was adopted — e.g., those against attempted suicide, bestiality, even drug use.
And the child screams: you said I have a right to privacy, so anything I do privately, including crimes, is protected by the constitution. Nope. An assertion of a right to privacy is merely an invitation to the clueless to raise such objections.
More to the point, in the same article, we see yet another variation on the “subverting the democratic process argument” against *Roe*:
>The day after Roe was decided, the New York Times called it a “resolution” of the abortion issue. Not really. Roe short-circuited a democratic process of accommodating abortion differences — a process that had produced a larger increase in the number of legal abortions in the three years before the Roe decision than were to occur in the three years after.
First, for good or for ill, *Roe* answered a constitutional question; as a branch of a democratic government, duly appointed according to procedures outlined in the *Constitution of the United States of America* the Supreme Court of the United States embodied a democratic process as it always does. Second, a vigorous debate has taken place ever since (as well as a terrorist campaign of violent extremists). Third, democratic processes have played around the edges of the issue ever since (primarily restrictions and limitations on funding and so forth). Finally, the very democratic process of a constitutional amendment has always remained.
To assert then, as Will and Friendly do, that the occurrence of all of the vigorous democracy was the product of an unwise decision makes one wonder what they have in mind by “democratic process.”
9th amendment dammit! 9th f**king amendment! someone send will a copy of the goddammed constitution!
see Griswold v. Connecticut. Though the use of the 9th amendment is often viewed by conservatives as a type of “judicial activism.” It’s strange that the 9th amendment is so short and vague, and yet judges aren’t allowed to interpret it for fear of “legislating from the bench.”
Hey, George! The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
We all get confused, it seems, once folks start using more than two or three sentences to establish an argument or even state a fact. But I’ve always understood what this means — our government is based on the opposite principle from which monarchy is derived. The King is sovereign and no one has any conceivable right save those which he grants them. In our system, we, the people, are sovereign, and we have all conceivable rights reserved to us, save those which we expressly grant to the government.
It is really that simple. No right we might legitimately have has to be “invented” or “found” enumerated in the constitution or bill of rights — we have them by default. It is time more people woke, stood up, and said so to the populist authoritarians – the fascists.
Who died and made you King, George?? Mr. Will and his ilk are merely the paid stooges of the plutocracy, the advocates of populist authoritarianism — the kind of zeitgeist that elected people like Mussolini and Hitler. See Fareed Zakaria’s The Future of Freedom for more on this.
Justice Goldberg, in the Griswold case, devoted several pages to the Ninth Amendment.
”The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment. . . . Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.”
Chief Justice Warren and Justice Brennan joined this opinion.
Justices Harlan and White concurred without alluding to the Ninth Amendment, but instead basing their conclusions on substantive due process, finding that the state statute ”violates basic values implicit in the concept of ordered liberty,” (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
It would appear that the source of the fundamental rights to which Justices Douglas and Goldberg referred must be found in a concept of substantive due process, despite the former’s express rejection of this ground.
Notice the reference to the Ninth Amendment as a ”constitutional ‘saving clause”’ in Chief Justice Burger’s plurality opinion in Richmond Newspapers v. Virginia, 448 U.S. 555, 579 -80 & n.15 (1980).
Scholarly efforts to establish the clause as a substantive protection of rights include J. Ely, Democracy and Distrust–A Theory of Judicial Review (Cambridge: 1980), 34-41; and C. Black, Decision According to Law (New York: 1981), critically reviewed in W. Van Alstyne, Slouching Toward Bethlehem with the Ninth Amendment, 91 Yale L. J. 207 (1981). For a collection of articles on the Ninth Amendment, see The Rights Retained by the People: The History and Meaning of the Ninth Amendment (Randy E. Barnett, ed., 1989).
Personally, I put a lot of stock in the 14th amendment’s substantive due process clause.
Government has no business passing laws about matters about which is has no business. Lacking a compelling state interest based on a secular, rational purpose, all laws concerning the practice of abortion, apart from regulating it as a medical procedure like any other, should be held void for the same reason Harlan and White reasoned in Griswold.
It is my opinion that all law concering abortion, except that which regulaties a medical procedure qua medical procedure, is based on irrational religious beliefs, and not on a secular, rational purpose
What’s worse, all efforts by Republicans to effectuate limitations on abortion are merely cynical cover to exploit cultural, religious views and turn them into votes for the plutocrats by obfuscating the economics inherent in the political process.
Thus we spend almost all of our political time on irrelevant side issues and ignore that which is most important: economic freedom and justice.
The result is laissez faire economics worse even than the 1880s and a class of corrupt and exploitative plutocrats who plunder and pillage the public weal while dragging our country into imperialistic wars so they can corner the market in oil.
yeah, it is sad that justices may feel indisposed to utilize or interpret the ninth amendment, but anyone who would characterize its use as “judicial activism” is ignorant. on the one hand, they ask for a “strict interpretation,” yet when that interpretation fails to yield a result which falls into dogmatic agreement with the reigning theocracy, the result is decried as activism. i have officially raised the bullshit flag. the ninth amendment is a check, of sorts (this is where i take departure from mr. burke’s reading of the amendment)which serves to ensure that, in the exercise of my rights, explicit or implicit though they may be, i do not rudely trample upon the rights of other. its secondary intent, i beleive is that which mr. burke has so eloquently enumerated. unfortunately, mr. will can apparently only view the first 8 amendments from the top of his ivory tower.
as to mr. burke’s stipulation concerning the attachment of rights, enumerated or otherwise, right on, brother. as perfectly articulated in the Declaration, ALL HUMAN BEINGS are endowed by their creator with certain INALIENABLE rights. in this formulation, rights attach to the person, regardless of situation, sex, race, religion, or sexual preference. good stuff.