Nineth Amendment of the Bill of Rights
Has anyone looked at the Nineth Amendment of the Bill of Rights? Because of what is being said about rights not enumerated in the Constitution by SCOTUS and Carol Stewart is precisely why it exists. Some history:
“The Amendment’s origin is fascinating history. James Madison proposed the Amendment to counter the Federalist arguments that a bill of rights was unnecessary or even unwise. The Federalists argued that the government created by the Constitution was permitted to exercise only those powers specifically granted to it in the Constitution. The governmental structure itself with its checks and balances would be the best protection for individual rights. Besides, the Federalist argument continued, a bill of rights might even be dangerous because a list of some protected rights might be interpreted to mean that all unlisted—or unenumerated—rights were unprotected.”
That is precisely what they are arguing and what Carol Stewart is arguing. If it is not listed in the “original” constitution, it is not a right. That is simply not true.
Another attorney acquaintance (Publius Too) from a distant galaxy wrote this the other day:
In Dobbs v. Jackson Woman’s Health, the majority opinion relied on an “originalist” construction of the constitution:
Because the constitution does not expressly “grant” a right to an abortion, and because there was no historical right to an abortion when the constitution was drafted, the Roe decision erroneously made up a constitutional right out of whole cloth. Underlying this opinion is the belief that the constitutional rights of individuals are limited to those expressly granted by the constitution or recognized as existing when the constitution was adopted.
In Federalist No. 84 (Certain General and Miscellaneous Objections to the Constitution Considered and Answered),
Hamilton addressed the argument that the constitution should not be adopted because (as proposed for adoption) the constitution did not contain a bill of rights. Without a bill of rights, objectors to the constitution argued, the rights of individuals will be subject to the whims of the legislature. However, Hamilton anticipated and dispatched the “theory” that the failure to expressly provide for a particular human right in the constitution meant that the legislature could decide when, and to what extent, the particular right would be recognized:
“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.”
Imagine what Hamilton’s reaction would be to the majority opinion’s reasoning and “originalist” construction if he were alive today. Hamilton was indeed prophetic. This quote from Hamilton lays bare the irony and intellectually dishonesty of the interpretation of the rights of individuals by the “originalists” (like Alito and Thomas) and their failure to acknowledge, much less respect the Founder’s intent and understanding. The majority “originalists” apparently think that human rights are granted by the constitution, which is contrary to the original intent of the Founders as expressed in the above quotation. According to the Founders (Hamilton), however, the rights of the individual are not granted by the state, but are inherent in the individual.
But not anymore!
Publius too must be growing old now . . .
“Total Hypocrisy, Franken Pushed Back on GOP” – Angry Bear (angrybearblog.com)
“Answering John Roberts Beliefs of Innocence” – Angry Bear (angrybearblog.com)
“The Bill of Rights: What Does it Say?” | National Archives
Social Contract Theory
Social contract theory, nearly as old as philosophy itself, is the view that persons’ moral and/or political obligations are dependent upon a contract or agreement among them to form the society in which they live. Socrates uses something quite like a social contract argument to explain to Crito why he must remain in prison and accept the death penalty. However, social contract theory is rightly associated with modern moral and political theory and is given its first full exposition and defense by Thomas Hobbes. After Hobbes, John Locke and Jean-Jacques Rousseau are the best known proponents of this enormously influential theory, which has been one of the most dominant theories within moral and political theory throughout the history of the modern West. In the twentieth century, moral and political theory regained philosophical momentum as a result of John Rawls’ Kantian version of social contract theory, and was followed by new analyses of the subject by David Gauthier and others. More recently, philosophers from different perspectives have offered new criticisms of social contract theory. In particular, feminists and race-conscious philosophers have argued that social contract theory is at least an incomplete picture of our moral and political lives, and may in fact camouflage some of the ways in which the contract is itself parasitical upon the subjugations of classes of persons.
Table of Contents
Both deep thinkers and deep stinkers have a lot to say about rights and where they come from. My favorite has always been “Folk only can hold such rights as they are willing to die for,” but after that I place both the classical view and the iconoclast POV intellectually far above that of the Founding Scoundrels, who were after all only rich guys working out of self-interest to secure a stable state out of the spoils of their rebellion against their former sovereign.
This is to say that there can be no rights without complementary social obligations.
..but there can be plenty of wrongs.
Ron and Run
maybe it’s just the weakness of my head, but i have trouble following the philosophers. and it seems to me that really, even deep thinkers cannot be trusted to have thought of everything, nevertheless we need, needed, something like a constitution to begin with..a memorandum of understanding, and a trial fremwork for organizing
and, yes, a place to start even a present argument…but not ultimately to be relied upon, either by the yeas or nays.
people will demand, if they are not cowed, relief from what they think of as abuse or injustice. the ultimate (temporary) resolution of this must depend on the people present… that is the living… and who has the power. we can only hope the people living will have the wisdom and decency and the power to right wrongs or at least find a modus viviendi.
history…to the extend I know it…has shown that the Framers got it mostly Right, and we the people have mostly fixed what they did not get right (i can’t say “got wrong.”)…painfully and after a struggle.
A struggle, it seems to me, mostly against other people who had financial interests in the status quo, or a blind adherence to what they “knew” before they thought about other people’s needs and wants or “rights” or just feelings, that is, as we have learned late in our history, slave owners vs slaves, or just white people with power against black people without it, or white people without power just riding on the fact that black people had no power to resist whatever it is in (some?) men (non-gendered meaning of “men”) that leads them to enjoy abusing others, or clueless husbands and employers against women with needs and desires beyone being wives or secretaries.
there are other “rights”, not enumerated…because nobody thought of them, no that nobody believed in them but rather that they took them for granted… we are only beginning to learn and understand.
and their enemy is always, first, those with power, and our own passive acquiescence.
so, hooray for the philosphers and the “great men” of antiquity, as good a place to start talking as any, but don’t place your faith in them as the ultimate source of your “rights” or the other guy’s.
ultimately it’s what you can convince the other guy of, by appealing to his sense of decency or reason, or at the point of a gun if he insists. that’s the way it goes.
Sounds to me like we have agreed to agree again, despite our semantics differences.
I would agree that you all have agreed to agree.
But I could be mistaken.