That article caused me to go looking for the quote you bolded.
I found it here
volokh.com
I thought the short debate about the 9th amendment in the comments to that blog post was interesting.
I find myself agreeing with "Challenge". I don't think the 9th amendment creates a presumption of liberty. It would in some ways be nice if it did. I like a very large degree of liberty. But the words of the amendment do not seem to imply an such presumption to me, the history around the bill of rights doesn't seem to support such an interpretation, and the practical result of such an interpretation is IMO, as Challenge says "dangerously elastic". In particular I don't think the principle should be applied to the states. But even against the federal government I believe courts should rely on strict interpretation of the limits of the federal governments constitutionally granted powers rather than an active and broad interpretation of the 9th amendment.
The 9th amendment is "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
I agree with that principle. But I don't see any active enforceable meaning to it in terms of law. The fact that a natural right is not encoded in the constitution, doesn't mean it isn't a right, and the 9th amendment recognizes this. This rights should not be denied, and the lack of their inclusion in the bill of rights does not mean people should not respect them, or that laws (or latter amendments) can not or should not be created to protect them. However the fact that they are not included in the constitution does mean that they aren't protected by the constitution at least not directly, until and unless the constitution is amended to protect them. (By "at least not directly" I am referring to the idea that they can be indirectly protected by the constitutional limits on federal power)
If you decide that the 9th amendment means anything considered a right is protected you run in to the problem that different people consider very different things to be rights. Someone asserting a "right to health care" or a "right to housing" shouldn't be able to benefit from the use the 9th amendment to support their cause, esp. in an actual court case. If you want to exclude "positive rights", because they aren't matters of liberty, then I fall back on the argument that someone shouldn't be able to effectively create a right to prostitution or a right to sell or use cocaine through the 9th amendment. Not that I am a big supporter of such bans, but the banned activity is not a constitutionally protected right.
The 9th amendment is not the only part of the constitution that I don't think should be, or reasonably can be, actively interpreted. Another clause that comes to mind is from the 2nd amendment. - "A well regulated militia being necessary to the security of a free State"
This clause asserts that a well regulated militia is necessary for the security of a free state, and in the context of the whole amendment uses that idea to support the idea that a right to keep and bear arms shall not be infringed, but it doesn't limit that right to a militia. It supports but does not modify "the right of the People to keep and bear arms shall not be infringed.".
Tim |
