Why Don't Democrats Fully Support The Bill Of Rights?

[ZombieGak]

Dems love to think they support democracy and the Bill of Rights. I'd argue they support neither but wrap themselves in both as the Right does the flag. In this thread I’d prefer to just discuss the latter.

Case in point: the right to choose. When "defending" this right the Dems fall back on stare decisis... previous SCOTUS decisions like Roe. Why? Their logic is that since there's no enumerated right to choose in the Constitution, the best they can do is hope the courts will expand existing enumerated rights to create new rights.

Yet part of that Bill of Rights is the ninth which CLEARLY says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Granted the Framers did not originally include a Bill of Rights in the Constitution. Madison wrote in a letter to Jefferson explaining why he didn't at first believe the omission of a Bill of Rights in the original Constitution was of much consequence:

"I have not viewed it in an important light --
1. because I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted."
SOURCE: http://www.constitution.org/jm/17881017_bor.txt

Government was granted limited powers from the sovereign people who retained all their rights... period.

Madison also wrote:
"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."
SOURCE: www.usconstitution.net/madisonbor.html#Sec5

This simple fact has been lost. And in this light the proper way to defend the right to choose is not to enshrine it in a new amendment or hope for courts to protect it... but to demand if the Right opposes this right then the burden is on THEM to nullify the ninth amendment. Until that time come, the Democrats are undermining, not supporting, the Bill of Rights.

[EST]

1. Interesting argument.

Are you a constitutional scholar?

[ZombieGak]

38. hardly

I'm just distressed that the original intent of the Ninth has been forgotten and historically has been ignored by both major parties. Because if it politicians have been too eager to pass laws that unconstitutionally restrict rights. In fact I'd go as far as to say that according to the Ninth any law that exceeds legitimate intent to protect society is an abuse of power. For instance, society might have to act to deal with the problems caused by drug use... or more precisely some drug users. Politicians have two choices. They can write blanket anti-drug laws that restrict the rights of even responsible users. Or they can write laws that protected responsible citizens, encouraged others to be more responsible, and punish just the acts they are most concerned about.

[EST]

39. Thanks for your thoughtful answer.

The essential problem comes from you and me, unfortunately.
We look at government logically and with a kind of idealized pragmatism, if there is such a thing.

We think that government should act like a set of rules and that politicians should be fairly hard nosed, carefully weighing the pros and cons of any change in the rules. What we run afoul of is that governments are people and most people who get deeply involved in government see it as a way to achieve and exercise power and a way to manipulate social policy to try to grow their own utopia.

People aspire to power for all sorts of reasons, few of them good, and they forget too quickly the difference between dedicated public servant and arrogant master. There is a continual fight between the forces of overweening arrogance attempting to enslave people and rude progressive patriots, suspected by almost everyone for almost everything, battling to keep government interference at a minimum and problem solving efficiency at a maximum.

Right now we're losing but battling back.

[maddiejoan]

2. ::::yawn::::

I get bored knocking down strawmen.

[ZombieGak]

6. you haven't knocked down anything

have you?

[maddiejoan]

35. and you haven't made a valid argument.

have you?:

[ZombieGak]

36. more empty claims?

You have not made a counter argument, presented any historical evidence that my facts or interpretation are invalid. You have not presented any facts that the Dems don’t, in fact, take the positions I described. In fact I see no evidence you can do anything more than make empty claim after empty claim.

Next!

[maddiejoan]

41. As you state...

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

You then make the incredibly bizarre leap of logic that the liberal goal of expanding rights somehow denies rights to others!

How can I comment on such an obviously flawed line of reasoning?

Your whole premise is without any single merit and, frankly, I regard you as some sort of sophist who has latched on to some talking point that you believe to be true but have sadly not even sat down to think about.

Sorry. You're not nearly as clever a person as you believe.

[ZombieGak]

42. why are your defending a failing strategy?

maddiejoan wrote:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
You then make the incredibly bizarre leap of logic that the liberal goal of expanding rights somehow denies rights to others!"

It's clear you have NO idea of what my argument is. The Ninth PROTECTS ALL RIGHTS with the exception of those curtailed to grant the government some specified powers. That is what Madison was saying in those two quotes I presented. You remember Madison, right? So how can you then say that the traditional Liberal idea of NOT looking for rights in the Ninth, but looking for courts to find them elsewhere is "expanding rights"?

maddiejoan wrote: "Your whole premise is without any single merit and, frankly, I regard you as some sort of sophist who has latched on to some talking point that you believe to be true but have sadly not even sat down to think about."

Obviously you are better at making empty claims than presenting a case. It SHOULD be clear by now of the problems inherent with your approach. The first is that by refusing to embrace the Ninth, Liberals are forced to rely on federal courts to expand enumerated rights. Yet as we’ve seen, the Right is hijacking the courts to thwart this approach. Since you don’t embrace the Ninth as the protector of unenumerated rights, you’re dooming yourself to a strategy that if the courts won’t expand rights… or worst start restricting them by overthrowing Roe or Griswold, then you’re only option left on the federal level is to seek legislation or new amendments for every new right you seek to expand.

Since the Ninth ALREADY EXISTS, it’s far better to reframe the debate and put the Right on the defensive that if they seek to restrict rights, then THEY have to repeal the Ninth.

[ZombieGak]

43. so what's your approach to defending the Geneva Conventions?

Your approach of refusing to embrace the Ninth as the protector of all unenumerated rights and looking instead for courts to expand rights is about as self-defeating as trying to defend the Geneva Convention as merely some long-held international agreement and not recognizing that the Constitution makes all international treaties the supreme law of the land. It’s that latter point that is the strongest card.

Why you would defend Dems as they continue to play a weak card in defending rights instead of rethinking a failing strategy is beyond me. Perhaps you can enlighten me.

[choop]

77. I think

...you missed the point of what OP is saying. Better reread.

[brentspeak]

3. Wrong site to post an anti-Democratic party diatribe.

You sound "concerned".

[MrCoffee]

7. What's anti-Democratic party about that post?

:shrug:

[ZombieGak]

11. Thanks....

It's merely a call for the Dems to rethink their failed strategy to protect the federal courts thereby some rights the Right wing wants to strip us of.

[ZombieGak]

8. so in other words...

So in other words you prefer the Dems NOT use the best legal arguments to defend the federal judiciary against Right wing Neanderthals?

[stepnw1f]

4. Republicans Are Attacking Civil Rights

so now we have somebody posting shit about the democratic party to...? Are you trying to help the GOP before an election with this?

[ZombieGak]

9. no argument...?

And you'd gladly have a rational discussion on this topic after election day? Didn't think so.

I'd prefer the Dems face their weaknesses not bury them. But I see not all agree.

[stepnw1f]

14. Just Don't Want to FEED your Argument

because it's on partially true. Some dems do what you say they do... You indict the whole party... what a strategy right before an election. I won't respond again because I do not trust your sincerity. Very peculiar timing for such a broad brush and innacurate statement about a political party I am a part of.

[ZombieGak]

18. show me which Dems DO take my view?

Obviously, the leadership of the Dems NEVER makes the argument I have. That's clear from their platforms, presidential debates, and questions during judicial confirmation hearings.

So which Democratic group DOES take the position I stated in my first post? I'd argue that even the ACLU defends mostly enumerated rights.

I'm really not trying to bash Dems here. It's been clear for 25 years that the Right wants to hijack the courts and the Dems obviously have not yet come up with an effective strategy to counter this... any more than they have to counter that the Right is intent on sabotaging government with irresponsible tax cuts. Isn't it time for a major rethink of Democratic positions?

[Quantess]

83. Precisely.

Timing is everything.

The Bill of Rights has been used as toilet paper by the current REPUBLICAN administration, and you're criticizing Democrats?! Right NOW, right before midterm elections?

Nice try.

[MrCoffee]

5. That's not a bad argument...

you might want to think about changing your subject line, which will inevitably result in flames.

[ZombieGak]

10. thanks...

Thanks, but the facts are as they are. If Democratic partisans can't discuss this rationally then it's a damning indictment.

[MrCoffee]

12. i didn't say it was the right argument...

lol.

there's an equally valid (and proven) argument in the fundamental right to privacy (of which abortion rights are a small part) found in the 1st, 3rd, 4th, and 5th amendments (see Griswold v. Connecticut). And almost 40 years after Roe, stare decisis is a strong peg to hang your hat on re: the right to choose.

[ZombieGak]

15. according to the ninth...

According to the ninth, the right to birth control or the right to choose should never have been limited. And in that is the crux of the problem. Neither the Dems or GOP really can accept the ninth because they find it convenient to write bad laws that exceed intent... or they are appealing to social Neanderthals as we saw with some of the more Draconian anti-drug laws.

[MrCoffee]

17. but according to the Commerce Clause, the ninth is meaningless.

there's internal conflict in the Constitution here. Any time Congress acts to regulate interstate commerce, someone's getting their rights denied or disparaged. So who wins?

[ZombieGak]

19. I see no conflict

For instance Griswold was a law suit against a STATE law that restricted the use of birth control... presumably even birth control devices/pills made in Connecticut. And what restrictions on interstate commerce would affect the right to choose or Gay marriage?

[ZombieGak]

21. put another way...

The Commerce Clause is one of the enumerated powers granted to the Government. Therefore the Ninth would still protect all rights maintained by the People not affected by that clause... right to use birth control, right to choose, gay marriage etc.

[MrCoffee]

23. I understand your point, I'm just saying that, IMO,

the privacy argument is stronger than the Ninth.


That's all. I'm not saying you're wrong.

[ZombieGak]

26. I think...

I think that the fact that our system was set up to protect ALL rights but those ceded to the government’s trumps any enumerated right. What's happened is exactly what Madison feared... that to enumerate some rights puts those unenumerated at risk. Worst, someone like Scalia thinks that only enumerated rights exist and the government can do anything not prohibited. Talk about the complete bastardization of the Constitution.

[MrCoffee]

28. So if I said the Ninth is just a rule of construction...

you'd go insane with rage, right?

I'm not saying that it is. I'm just tweaking your chain a bit.

[ZombieGak]

34. not sure what you're saying...

A rule of construction in the legal sense is merely an interpretation.

The Framers originally did not feel a Bill of Rights was necessary given the underlying assumption that went into the Constitution. But when the states pressed for such written guarantees of rights as were written into many of the state constitutions, the drafters of the BoR were left with a situation of trying to flesh out that BoR in terms already in those constitutions yet also including a more general guarantee that ALL rights were protected except those needed to cede powers to the federal government.

I see the ninth as a restatement/reaffirmation of the balance between government and the people the Constitution rests upon… not as Bork once stated… an “inkblot” beneath which we can’t ever know what the drafters meant.

[ZombieGak]

60. BTW... the Ninth is the basis of Griswold......

http://caselaw.lp.findlaw.com/scripts/cases/clcc.html?court=US&vol=381&invol=479

[dbonds]

13. I think that is a great arguement.

I agree that we don't have the limited rights spelled out in the bill of rights, but are born with a full set of rights that only some are enumerated in the bill of rights. There should not be a list of what rights is given (none are given, they are all inalienable) but a list of what we deem not productive or an attack on our society.

[ZombieGak]

16. a list is dangerous...

As soon as a list is made, then those rights not listed will be threatened. That was the intent of the ninth. Yet even with the protection the ninth offers, politicians have stripped us of those other rights and after 2 centuries most of us now accept that as the normal state of affairs.

[Katzenjammer]

44. a list WITHOUT TEETH is dangerous

It's a real question whether having no list is more dangerous still.

The whole colonial culture was British (I know you know all this, I'm "addressing the gallery"), with all the baggage that implies.

Rights were something that belonged to the Crown, or possibly to Parliament, but not to the people except for those listed in the Magna Carta. So the argument was made in the 1787 Convention that there needs to be a list, because without a list the legislature would do what Parliament did: assume that all rights belong to the state, not the people.

Since the whole point of scrapping the Confederation was to take care of wealthy business owners, who didn't have any way to socialize the costs of staying wealthy, the convention delegates were uninterested in really getting into rights except for business rights. Their money insured their personal rights, and that's all they cared about. (Shays's Rebellion was a good example of why the wealthy needed a national government. The bankers and speculators in Boston had to actually hire mercenaries out of their own pockets to crush the resistance in western Mass so that they could safely extort the proceeds of their profiteering during the Revolution. If the people had been forced to finance a standing army, the bankers could have used that, instead.)

George Mason was one of the few who could see that individual rights would be important, and he refused to sign off on the proposed constitution when the other delegates refused to consider including a list of rights.

The Bill Of Rights was the compromise they made to get ratification: rights would be listed, but there would be no penalties assigned for violating them. It gave the people a (false) feeling that their rights were safe, while actually leaving the ruling class unfettered.

[IM paranoid]

20. All I know is, the Republicans took away my right to Habeus Corpus, not

the Democrats. Lofty Constitutional arguments over 200 years old put aside, these are the plain facts, dude!

[MrCoffee]

22. But the Democrats didn't fight for it...

I'd expect the Repukes to gut the Constitution, but the plain fact that we didn't even fight them on it is gutwrenching to me.

[IM paranoid]

25. The Dems do need to show more intestinal fortitude, I agree but...

It always seems to be the Repubs that run for office on the platform of "less regulation", then turn around and think of new ways to curtail our freedom. Actually, I'm ashamed of Congressional Democrats, but the Repubs make me want to vomit.

[Quantess]

84. Yes, thank you.

Welcome to DU.:-)

[EST]

40. There are, right now, fights gearing up all over the place.

This is not something we can do a "W" on. The sheriff can't just come ridin' into the badlands, knock some heads together and presto***everything is fixed.

This has to go from a number of different approaches, in overwhelming multitudes, with everything perfect.
There can be no sidestepping with "standing" issues or any of the other "gotchas" that the pipsqueak little torturers have designed to delay or cloud the question.
These cases must also be designed such that boosh and speedy can't do a pirouette and escape prosecution, imprisonment or execution. Even making a constitutional argument out of it may be enough to insulate them from a well deserved fate.

Time is of the essence, of course, but this has to be done right and totally bulletproof.

[SouthernBelle82]

46. And here is the problem

with being the minority party. If every single democrat voted against it anyways they still would have lost because they just don't have the votes if all the republicans out numbered them on "yes" votes to taking it away. There's only so much a minority party can do. This, in my opinion, is one of the problems with only a two party system.

[ZombieGak]

24. we're all aware of the Right's attempts to trash the Constitution

But it's also a fact that the Ninth exists and the Democrats refuse to defend it. It's also a fact that the Right's intent to hijack the federal judiciary have been clear for 25 years and the Democrats STILL have not come up with an effective way to counter their strategy.

[LoZoccolo]

27. What's your point?

What do you want us to do with what you're arguing?

[styersc]

29. I had the same question.

How can a post have so many words and paragraphs, yet make absolutely no point. Right to choose? Choose what? What is the point of this post?

[ZombieGak]

32. and if anyone else...

And if someone else mentioned the "right to choose" would you then, too, pretend you had no clue what it meant?

[MrCoffee]

30. I thought it was to offer an alternative debate on the origin of

Constitutional rights and whether Democratic strategy of propounding those rights was the strongest argument?

Maybe that's just me.

[ZombieGak]

33. exactly

The Right's strategy has been clear for 25 years... sabotage revenues and run up massive deficits, hijack the courts, and defund the Democratic Party by attacking unions and trial lawyers etc.

One MIGHT think that given it's been a quarter of a century, the Democrats would finally come up with an effective way to counter the Right's Big Lies on tax cuts... but they haven’t. They also have failed to counter the Right's Big Lies that they merely want judges who believe in "original intent". They can't expose this lie if they continue to take the positions they have. WHat I was suggesting was a way to reframe the debate on rights by finding them in the 9th not in stare decisis.

[ZombieGak]

31. red herring alert!

I presented the evidence that there is a contradiction in the Democratic Party’s rhetoric and the reality of what the Bill of Rights stands for. I also believe that it’s behind a failed strategy to protect the federal courts.

You’re asking a red herring question of what can be done when you haven’t even said you agree it’s a problem.

[Name removed]

37. Deleted sub-thread

Sub-thread removed by moderator. Click here to review the message board rules.

[RoyGBiv]

45. A few points ...

First, as has already been pointed out to you, your delivery on this issue is extremely poor, for several reasons. The contextual reasons have already been explored to some extent, so let me focus on a substantive one. The notion that to defend the Bill of Rights one must focus on the least meaningful among them, as determined by two centuries of case law, is ludicrous. What you believe or what I believe or what those who try to use the 9th Amendment to defend Southern secession from the United States as a legal rather than rebellious act believe is irrelevant. The meaning and importance of the 9th Amendment has been debated since the initial adoption of the Constitution. The result of those debates, from a practical and legal perspective, makes it the least valuable tool for defending such things as the right to privacy, right to choose, etc.

Second, throwing out a few pity quotes from Madison doesn't help your case much considering Madison was in reality arguing against the notion of a Bill of Rights at all. Certainly one stated reason for that was the possibility of these lists of rights being construed as determinate and thus, in the end, restrictive. But to make your argument stronger you might try addressing the anti-Federalist argument as well, which was to note that without a broad enumeration of rights, the Congress has no explicit charge to protect any individual rights at all.

Third, in your search for Madison quotes or for information about the 9th Amendment, did you happen to run across the fact that the defense of the right to choose, among others, as in fact initially based on the 9th Amendment and that this logic was rejected by a court at almost the same time as the Roe decision? And were you aware that in rejecting this logic, the affirmation of the right of choice was nonetheless upheld using other, more Constitutionally sound logic?

What you are fundamentally suggesting here is that in order to defend the Bill of Rights, we must go back on two centuries of case law, overturn it, and create an entirely new set of legal precedents, which in and of themselves would in due course overturn some of the very decisions and legal interpretations of other aspects of the Bill of Rights that we have been in the business of defending for so long. In short, what you seek is for us to abandon the Bill of Rights as a whole and substitute a single amendment's vague meaning for the whole.

No thanks.

[ZombieGak]

47. thanks for your thoughtful response......

RoyGBiv wrote: “The notion that to defend the Bill of Rights one must focus on the least meaningful among them, as determined by two centuries of case law, is ludicrous.”

The least meaningful amendment? Actually the Ninth is probably the MOST important in describing the balance the Framers intended between the People and government.

RoyGBiv wrote: “What you believe or what I believe or what those who try to use the 9th Amendment to defend Southern secession from the United States as a legal rather than rebellious act believe is irrelevant.”

Perhaps you’re really thinking of the 10th.

RoyGBiv wrote: “The meaning and importance of the 9th Amendment has been debated since the initial adoption of the Constitution. The result of those debates, from a practical and legal perspective, makes it the least valuable tool for defending such things as the right to privacy, right to choose, etc.”

The meaning is clear. But it’s an inconvenient truth to those who want to use government’s powers to restrict rights. The ninth has been so long ignored we now have the spectacle of Scalia maintaining that unless rights are enumerated, they don’t exist.

RoyGBiv wrote: ”Second, throwing out a few pity quotes from Madison doesn't help your case much considering Madison was in reality arguing against the notion of a Bill of Rights at all.”

Of COURSE Madison initially argued against a bill of rights. As he wrote, he believed the underlying assumptions for the Constitution made such guarantees unnecessary. He also argued that there was a danger in enumerating SOME right in that unenumerated rights would be at risk. 2 centauries later he’s been proven correct when even people like you don’t remember what that constitutional balance was intended to be DESPITE being clearly stated in the 9th.

RoyGBiv wrote: “Third, in your search for Madison quotes or for information about the 9th Amendment, did you happen to run across the fact that the defense of the right to choose, among others, as in fact initially based on the 9th Amendment and that this logic was rejected by a court at almost the same time as the Roe decision?”

In the minds of the public and the politicians they elect, the meaning of amendments changes over time. That’s reinforced by politically appointed judges/justices who build new case law based upon cases presented before it. We see how the NRA has
bastardized the 2ed to the point that most of the GOP believes it. There has been no historical effort to make the Ninth meaningful and 2 centuries later people like Bork consider it an inkblot on the Constitution under which we can never know the Framer’s intent. That is nonsense. The intent of the Ninth is clear.

RoyGBiv wrote: “What you are fundamentally suggesting here is that in order to defend the Bill of Rights, we must go back on two centuries of case law, overturn it, and create an entirely new set of legal precedents,.. “

And do you really believe that radical Right fears overturning case law? The Constitution in Exile movement and others are intent on undermining the constitutional justification for the New Deal and Great Society safety net and some want to take away rights I’d argue the Ninth always protected. What you fail to understand is this: your precious case law on the right to choose is merely 30 years old…. 40 years old in the case of Griswold. It is fragile and under fire. Conservatives now have 3 new justices on the USSC. Democrats better start thinking about a better strategy to politically reframe this debate and find a better source of rights than stare decisis because the Right won’t stop. The alternative is to forever seek legislative protections for such rights the Ninth already protects. That's dooming those who wish to protect existing rights such as in Roe, or those wishing to expand rights, such as same-sex marriage, to be forever on the defensive.

RoyGBiv wrote: “…which in and of themselves would in due course overturn some of the very decisions and legal interpretations of other aspects of the Bill of Rights that we have been in the business of defending for so long. In short, what you seek is for us to abandon the Bill of Rights as a whole and substitute a single amendment's vague meaning for the whole.”

How can you claim to be defending the Bill of Rights when you just wrote above you believe the Ninth is “least meaningful” of the amendments? And no, I’m not suggesting the abandonment of the Bill of Rights…. only a more expansive, and I’d argue a more proper, interpretation of them that the Ninth makes clear.

[RoyGBiv]

75. Okay, that's enough ...

I'm only addressing a couple points you've made because you're talking in circles, asking irrelevant questions rather than adding content, and not addressing the points raised directly, which in turn is causing me to talk in circles.

The least meaningful amendment? Actually the Ninth is probably the MOST important in describing the balance the Framers intended between the People and government

The words "meaningful" and "important" are not synonymns. "Meaningul" is to be taken literally, as in "full of meaning." The 9th Amendment is almost void of meaning except as an exercise for philosophy as opposed to political ideology.

Perhaps you’re really thinking of the 10th.

Perhaps I'm not. Read the debates that are archived surrounding the legal justification for secession. It took two main forms, one based primarily on the 10th, the other on the 9th. The difference indicated a different focus of the basis of power for those enacting secession.

The meaning is clear.

Believe that all you want. It is clear to you. One more time, two centuries of debate over its meaning by legal minds far greater than yours or mine indicate otherwise. If you have access to some revealed wisdom they did not, I might suggest you offer it.

How can you claim to be defending the Bill of Rights when you just wrote above you believe the Ninth is “least meaningful” of the amendments?

Forgetting that you're once again misuing the term "meaningful," I can say two things. First, I'm not a lawyer. I've never argued a case before a court. I don't directly "defend" anything, and neither do you. I support elected officials who in turn support the causes I consider important and who fight legislatively -- which is their job by the way -- efforts to infringe upon the rights guaranteed me by the Constitution. I also support organizations, both financially and with volunteer time, that do send lawyers into court to defend those rights, and the methods they choose to offer up that defense are best left to those trained to do so. These people and organizations are well trained and well versed in Constitutional law and know quite well that the 9th Amendment defense is and has been a dry hole for decades at least. Second, what I personally defend with my opinions and the thought process that goes behind those individuals and organizations I choose to support are the rights guaranteed me by the Constitution itself, as a whole. That I choose not to focus on some emorphous concept of "natural rights" means that I am actually more in the business of defending the *Bill of Rights* than someone, for example you, who seems to find it more important to focus on criticizing those who don't actively utilize the 9th Amendment in their legal arguments.

[Katzenjammer]

48. How amazing that you would interpret what he wrote the way you do

To me it reads completely differently. Choice was merely the example he used to advance his thesis. Your argument about two centuries of case law seems only to reveal that you're one of those who doesn't look more deeply than "the law is what the courts say", a viewpoint that encourages despotism. Despots always take care to have bought-and-paid-for law on their side. As Martin wrote from jail: we need to remember that everything the Nazis did was legal. Sentencing Martin to jail was "legal" too. But did that make it legitimate? Of course not.

The op's thesis is that, under the Constitution, and as specifically stated by the 9th Amendmt., we automatically have ALL rights (such as Choice) except those specifically given the state, such as the right to print money, make treaties with other nations, etc. The only way we can lose one of our infinite number of rights is by (supposedly) agreeing to give it up by allowing a law to be passed transferring our power over those specific decisions to the state.

When Democrats don't dig in their heels and refuse to go along with encroachments on our rights, they fail in their Constitutional duty to us. Why do we let them get away with that? That's what the op is asking. What are we paying them for, if not to defend our rights?

[ZombieGak]

49. i'm reminded of what a right winger once said

A year or so ago I was debating the Ninth at the Hannity forum and one Right winger's opinion was that he did not see us today needing any new rights above what people had in 1789. No doubt he believes that he's devoted to original intent.

[RoyGBiv]

53. You walk on strange ground ...

And what, pray tell, do you believe an "original intent" argument would do with the 9th Amendment?

[ZombieGak]

64. I've already stated what......

I've stated in my FIRST post what I believe the original intent of the Ninth is.

[RoyGBiv]

73. I didn't ask what *you* think it means ...

I asked what you think strict constructionists/original intent-ers would do with the 9th.

You need look no further than Robert Bork for an answer, and that answer does not jibe at all with what *you* think it means.

As stated elsewhere, that's my point. The 9th is open to more interpretation than any other single amendment with the possible exception of the 10th for the simple reason that it is so incredibly vague and when faced with the logic of a strict constructionist, it would fail on every count to ensure even some of the basic freedoms we enjoy today. The Federalists wanted it vague, for what they thought were good reasons. The anti-Federalists wanted it more explicit, for what they thought were very good reasons. And so it goes. It's not the black or white matter you want to make it.

The problem here is that your OP is disingenuous because it is based on a false premise, to wit that your notion of what it means to defend the Bill of Rights is the only reasonable definition. You claim the Democrats aren't defending the Bill of Rights, and your reason for claiming that is that they don't defend the 9th Amendment. You then further argue that using the 9th *instead of* the other amendments that have been used as the fundamental basis of, for example, the right to privacy and its extrapolations is indeed the only measure by which someone can be said to be defending the Bill of Rights. By implication you argue the other amendments don't matter, and indeed they might not *if* the meaning of the 9th were concrete, which it isn't...at all.

Look at what I said elsewhere. The philosphy behind the 9th Amendment is by extrapolation one of protecting natural rights. (In reality, as it has been used and interpreted since its inclusion, it's more of a guideline for how to interpret the Constitution itself, but that's somewhat off the subject.) With minor exceptions, none of the rights guaranteed in the first eight amendments can be called "natural rights" according to the Lockean philosophy upon which the idea of natural rights is based. A strict constructionist, in the absence of the first eight amendments and notwithstanding the 9th could, for example, very clearly construct a valid argument that no such thing as freedom of speech exists or ever has existed in the way we interpret it today.

[ZombieGak]

93. you're assuming that Bork is a "strict constuctionist"

You're assuming that Bork is a "strict constructionist" as opposed to a radical right-winger with an agenda hiding behind that fig leaf. Since I believe the latter… and I include in that group the likes of Scalia and Thomas who hide their agenda by claiming to be Originalists. Yet it’s clear Scalia has bastardized the Constitution in claiming that unless rights are not enumerated, they don’t exist… and government is not delegated specific powers… it can do anything not specifically restricted. So the underlying premise of your last post is deeply flawed.

[RoyGBiv]

97. Ohdearlord ...

Strict constructionist = radical right-winger.

When I began this little journey with you, I gave you the benefit of the doubt. I made an apparently false assumption about you, to wit that you knew anything at all about this.

As with my other parting comment, it's clear you don't. Anyone who does would know *why* I referenced Bork.

[RoyGBiv]

52. My point ...

My point that you so casually dismiss (or sidestep actually) is that the 9th Amendment is, at best, vague. It grants no rights, protects no rights. It simply asserts some amorphous concept of rights that may be. Outside the context the Bill of Rights as a whole, it has no inherent meaning at all and is as open to interpretation by the courts and the legislature and the executive as those branches of government want it to be. On the other hand, civil libertarians have spent two centuries building a solid foundation upon which certain rights can be and are protected that involves the Bill of Rights as a whole, the 9th Amendment not excepted. The courts have since Marbury v Madison been charged with the duty of final arbiter of Constitutional interpretation, and the courts have been able to follow a train of legal logic using this foundation. To abandon it in favor of such a vagarious legal foundation such as the OP suggests is the height of folly.

Your notion that the 9th Amendment automatically grants "ALL rights (such as Choice)" was rejected by the very people who penned the words that made it. The phrasing is an explicit and direct reference to the Declaration of Independence and the notion of natural rights. If you're up on your Locke, you will surely know that these natural rights are limited in scope and grant governmental institutions a large measure of room for restricting that which we, today with the help of legal precedent, consider fundamental rights. A distinct difference exists between "natural rights" and "Constitutional rights." The wording of the 9th Amendment was an attempt to blur the distinction, and the courts, under our system of government, summarily rejected the association, just as they would had the 9th been the only amendment. By contrast, the first eight amendments are more explicit and leave open room for broader interpretation under a Constitutional system in which a larger scope of rights can be considered worthy of protection than those considered fundamental under the more abstract notion of natural rights.

[Katzenjammer]

85. I didn't fail to understand your point, I disagree with it.

"the 9th Amendment is, at best, vague."

This is a literally incredible idea. ANYone who is a literate, native speaker of English and reading out of rather than reading into will get exactly the same meaning from the words:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

"Just because the Constitution identifies certain rights does not mean that those are the only rights the people have". It's simply not possible to get some other meaning unless one is using an existing agenda as a filter.

"The courts have since Marbury v Madison been charged with the duty of final arbiter of Constitutional interpretation"

You misspelled "they arrogated the power of final arbiter to themselves". In fact, in a republic, the PEOPLE are the final arbiters. That was the whole point of making the US a republic rather than a monarchy, which latter was the standard form in the world at the time for any state larger than a city. Because Madison was a plutocrat at the time, he wanted "the people" to have a restricted meaning, namely "the wealthy people", and so he re-defined "republic" to exclude the idea of democracy.

"Your notion that the 9th Amendment automatically grants "ALL rights (such as Choice)" was rejected by the very people who penned the words that made it."

You misread. I said that the 9th specifically ACKNOWLEDGES that identifying a few of our rights does not in any way imply that our rights are limited. We start out with the same rights, in a republic, that a monarch has in a monarchy. In a monarchy, the king (supposedly) gets his power and rights from God, and God has never limited those powers in any way. Kings were not merely assumed to have all temporal powers and authority whatsoever, but until science knocked over those superstitions, their very bodies were assumed to be filled with divine power--their touch could cure serious diseases.

But in a republic, there is no monarch standing between us and God. So if God is involved, then he gives US the rights and powers that in a monarchy he gives to the monarch. Which means that we start out with completely unbounded rights and power, and we only need give up those few that should be exercized communally to prevent social and economic craziness. Anything we don't explicitly give up, we automatically retain...and that's exactly what the 9th says.

[cosmik debris]

50. So, besides complaining,

What have you done to promote your agenda. What party office do you hold? What political office have you run for? What activities have you sponsored to put this agenda into the political debate?

I would like to know just how well this went over at the last Democratic Party Convention or Caucus you attended.

[ZombieGak]

51. this topic is not about me..

It's about the Bill of Rights and how the Democrats have had a failed strategy to protect the courts yet seem incapable of rethinking it just as they can't after 25 years come up with a strategy to counter the Right's attempts to sabotage government with irresponsible tax cuts.

So when you have something to add about my critique/suggestions... please feel free to post again.

[cosmik debris]

54. So all you are doing is complaining about the Democrats.

I take it you are not doing anything else. I can't even tell for sure that you are a Democrat. I can only tell that you are a malcontent without any ambition to improve the situation. It is pretty hard to get credibility when you sit on the sidelines and whine.

[ZombieGak]

56. so all you can do is make personal attacks?

yawn!

[cosmik debris]

59. I was a delegate to my county convention

I sat on the Resolutions Committee. We had to sit and listen to plenty of crackpots whine on and on about their pet peeves. I've heard this shit before, and the lawyers on the committee laughed at it. Have you even talked to a lawyer about it? Have you run a WestLaw search for relevant opinions? Have you presented this idea to any authority for review?

You seem to indicate that you would like to see some change, but you are not willing to do anything to achieve change. If you are not willing to back up you whine with action, you don't matter--not to me, not to the party, and not to the politically active population in general. You may not like being a nobody, but until you get off your lazy ass and do something, you are just another nobody with no opinion that matters.

[ZombieGak]

63. give yourself a medal....

But it's clear you STILL have nothing to say about my original post beyond personal attacks and raising irrelevant points.

[cosmik debris]

66. About your original post

Don't complain if you don't want to help fix the problem.

[ZombieGak]

55. ENOUGH CHEAP SHOTS!

For all of you that have only taken cheap pot shots... I'm still waiting for YOU to deal with the key points of my original post.

Has the Democratic strategy for protecting rights like the right to choose made or lost ground?

If it's the latter what's the fallback position?

What in YOUR mind does the Ninth amendment mean?

When precisely have YOU ever seen the Democrats ACTIVELY defend this amendment?

When have YOU ever seen Democrats claim the Ninth is the true protection of a woman's right to choose... not stare decisis? Judicial nomination hearings? Presidential debates? In paid ads?

[cosmik debris]

57. Here is a key point

"Dems love to think they support democracy and the Bill of Rights" and you argue that they don't.

The Democratic party is a democratic organization. If you don't like the way they behave, join the party, run for party office, and change the way the party behaves. Sitting on the sideline and whining is just plain anti-Democratic. And that means YOU.

[ZombieGak]

61. more personal attacks

yawn X 2

[cosmik debris]

65. Aren't you the sensitive one.

Poor thing, everybody is picking on you.

[ZombieGak]

67. even MORE personal attacks?

Yawn X 3

Let me know when you feel able to engage in an intelligent discussion. Otherwise you're just a waste of space.

[cosmik debris]

68. I'll answer the question you asked in the title of you OP

"Why Don't Democrats Fully Support The Bill Of Rights?"

Because YOU did not do ANYTHING to influence the Democratic Party through the democratic process. YOU failed. YOU have no one to blame but YOURSELF.

Is that answer clear enough for you?

[ZombieGak]

72. So I'm Responsible? ROTF

So it's MY fault the Democratic Party has proven so inept in the face of the Right? ROTF

Why do I suspect it's REALLY the fault of blind partisans who put Party before principle to the point they can't even engage in a rational discussion about the Party's weaknesses? Look in the mirror lately Sport? Even in a sub-thread where I ask people like you to address the issues I raised... you can't give up on personal attacks. So congratulations. You've made EIGHT POSTS and not ONE was on substance. Are those the kind of political skills you think are an asset to the Party?

[cosmik debris]

74. You're right, see post #69 n/t

[ZombieGak]

78. blah blah.......

Post 69 is just another of your lame personal attacks you've deluded yourself into thinking was a devestating rebuttal.

You've now made NINE POSTS and not ONE dealt with substance of my original post. Give it a rest. You obviously have nothing intelligent to contribute to this discussion.

[cosmik debris]

82. When a clown walks into the center ring at the circus,

Some people will notice his big shoes, some will notice his red nose, some will see his polka-dot pants. You may want me to comment on your big shoes, but to me it is the polka-dot pants that are truly hilarious.

You don't get to decide what I comment on. I will speak my mind and if you don't like it, you don't have to post. I thought your idea was worthy of ridicule, and I gave it what it deserved.

As long as you are wearing polka-dot pants, I don't have to look at your big shoes to get a laugh!

Get over yourself.

[ZombieGak]

88. I Await A Retraction

I see all you can do is make more personal attacks. You say it’s MY fault the Party doesn’t have a better strategy to protecting the federal judiciary. It’s a laughable accusation.

But what the hell have YOU done to protect the judiciary, aye Sport? No, putting medals on yourself doesn't count. Farting around at a Party Caucus is meaningless when it comes to this issue. When I was working with the local Deaniacs I went to one caucus in Spring 04 and won’t bother again. After the 04 election I returned to being an Independent.

While I don't like to toot my own horn as some blowhard might, surly you know the type... I HAVE been active trying to get the Dems to realize their strategy to protect the courts is weak. My efforts have been more focused. During all the past three USSC nomination hearings I’ve been posting to Democratic forums trying to contact party activists directly. I’ve phoned the offices of ALL Democratic Senators on the Senate Judiciary Committee plus Specter during each of the last hearings begging them to rethink their strategies on blocking Right wing judges and suggesting what I’ve advocated here. I even posted on some of my efforts last January when it could have done some good.
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x129693

So even as an Independent I seem to have been doing more to knock some sense into the Senate Dems than you have as a party member. I’d ask for a public retraction for your scurrilous accusations but I realize that takes some integrity.

[cosmik debris]

94. Get over yourself

When you post that "Why do Dems hate America" crap, you sound just like a right wing nut job. And yet you seem to expect the Democrats here to agree with you. HA! You are just another clown to me.

[RoyGBiv]

58. When?

Read the text of Doe v Bolton.

[ZombieGak]

62. this sub-thread is for those only taking cheap shots

You presented a interesting case elsewhere. If you have a substantive point, please make it in our existing discussion.

[RoyGBiv]

76. You don't get to make the rules ...

You asked a question. I answered it.

[ZombieGak]

79. I did NOT ask ONE question...

Here's my sub-thread post again:

"For all of you that have only taken cheap pot shots... I'm still waiting for YOU to deal with the key points of my original post.

Has the Democratic strategy for protecting rights like the right to choose made or lost ground?

If it's the latter what's the fallback position?

What in YOUR mind does the Ninth amendment mean?

When precisely have YOU ever seen the Democrats ACTIVELY defend this amendment?

When have YOU ever seen Democrats claim the Ninth is the true protection of a woman's right to choose... not stare decisis? Judicial nomination hearings? Presidential debates? In paid ads?"


So I'm not going to guess what question you think your reading suggestion pretends to answer.

[RoyGBiv]

81. I answered all of them ...

Both elsewhere and with my answer. Read the arguments and the decision.

[ZombieGak]

90. If you are going to make a point........

If you're going to claim you've answered my questions then I'm not going to do your work for you. It would be like my saying the Ninth has been historically ignored... go read Griswold.

[RoyGBiv]

96. Ah, yes ...

The last gasp of someone without an argument. The "won't do your homework for you thing" has a tried and true tradition. And it has an inevitable conclusion. See, the thing is this. A person well-versed in these issues would have known immediately what I was talking about with my reference, and he or she would have known how to address it. You stalled, not once, but twice, and now you've tried to turn it around on me? It's cute, but not very.

I'll let you in on a secret. I was just trying to determine if you even knew to what I was referring, and it's quite clear you don't. What's funny is that you could have tried to fake it just by reading a summary, but I was prepared for that as well because people who fake it miss a very important detail.

In any case, it has become clear you don't really have anything above a casual grap of the issues involved. (And I've heard your argument, such as it is, before, and I know where it originates. I wonder if you do.) So, since you seem not intent on having a discussion, rather running in circles with your logic, I'll let you have it.

Good day. I'm done.

[cosmik debris]

69. The Misunderstood Genius

You have discovered this brilliant legal theory that all the lawyers, all the judges, all the law clerks, and all the paralegals have overlooked. You are so much smarter than they are, I expect that you will be the next nominee to the Supreme Court. That is, if you can pass the Bar Exam. You can pass the Bar Exam can't you?

[SeaBob]

70. Bill of Rights

I think it would help your argument if you were a little more clear. For example you refer to "the right to choose" By this language one can infer many different options. I suspect that by this phrase you are referring to a woman's right to choose whether or not she can abort a fetus or not.

Later you refer to "stare decisis..." I suspect you are referring to State decisions. your argument regarding "Their logic is that since there's no enumerated right to choose in the Constitution, the best they can do is hope the courts will expand existing enumerated rights to create new rights" is not with out merit It has been done several time before. Most notable was brown V Board of Education, where the Court stated that separate education was not equal education. Also Justice William O. Douglas, The longest serving Justice on the supreme Court observed that there is no specific guarantee of privacy addressed in the Constitution. However several of the articles combined do provide a reasonable expectation of privacy by an average citizen.
However your discussion of James Madison and Thomas Jefferson is very well stated. One thing I think is of vital to this discussion is whether the Constitution is viewed as a "living Document" that can adapt with the times while still maintaining the principles of our founding fathers or whether the constitution is viewed as an written in stone. This view, in my experience, is usually adopted by people who are arguing with a vested viewpoint.

All in all I enjoyed this discussion and look forward to more.

Be well and walk in peace

[ZombieGak]

71. I thought I was clear on "right to choose"...

Greetings. I thought I was clear on the "right to choose" when I wrote: "Case in point: the right to choose. When "defending" this right the Dems fall back on stare decisis... previous SCOTUS decisions like Roe. Why? Their logic is that since there's no enumerated right to choose in the Constitution, the best they can do is hope the courts will expand existing enumerated rights to create new rights."

I made a connection between the "right to choose" and Roe.

As for stare decisis I was referring to the Dems falling back on existing federal case law such as Roe v Wade. It's from such decisions they claim there is a constitutional right to choose. Given the all encompassing nature of the Ninth, I just find their strategy to protect the courts ass backwards. They forego their strongest argument to protect rights... the Ninth, and exclusively use what should be their fallback position: case law.

As for the concept of the Constitution being a living document the open ended nature of the Ninth certainly lends itself to an ever-expanding array of rights. So I have to agree. What I find amusing is the utter hypocrisy of someone like Scalia who claims the Constitution is "dead" (ie. not living) and he has some monopoly on Original Intent. Yet he ignores the Ninth and has stated that unless rights are enumerated, they don't exist. Citizens are then free to create them legislatively. Concersely he maintains that government is not restricted to whatever powers its been granted. It's free to do anything no prohibited. His is a complete bastardization of Original Intent... and I've yet to see any Dems call him on it. Though I know some Right wingers have. This article SOURCE: http://www.fff.org/freedom/fd0206c.asp is amazing:

"Scalia here is saying that the government legally may require everyone to carry an ID unless the people amend the Constitution to prohibit Congress from enacting such a measure. His point is painfully clear: the government can do anything unless the Constitution expressly forbids it. No surprise here; Scalia has long made his views known. They are horrifying nonetheless.

His views are based on an incorrect — indeed, a pernicious — notion of what the U.S. Constitution was and is supposed to be. In fact, he stands the Constitution on its head. Instead of a document that protects individual liberty by reining in government power, Scalia would make it one that protects government power by reining in individual liberty."

In the long run Democrats have made a strategic blunder by failing to expose the hypocrisy in the doctrine of Originalism and counter it with a similar over-arching philosophical approach to Constitutional law. They need to educate the public and inoculate them against the Right's game plan to hijack the courts.

[Katzenjammer]

86. I'd disagree a bit with you, or at least with your phrasing

you say "As for the concept of the Constitution being a living document the open ended nature of the Ninth certainly lends itself to an ever-expanding array of rights."

I'd say that it doesn't. It might (and perhaps should) lead to an "ever-expanding array" of ACKNOWLEDGEMENT of our rights, but not of the rights themselves. We already have those. (This might feel like a quibble, but I don't think it is)

[ZombieGak]

89. rights are in the mind of the beholder

When I say an ever-expanding array of rights I did not mean to say the Ninth didn't already protect all rights, but that some rights might not have ever been articulated as such. For instance same-sex marriage might not have been raised as an issue in 1789. But I'd argue once it has been, it's protected by the Ninth.

[Katzenjammer]

91. Fairy nuff (nt)

[Hippo_Tron]

80. What do Democrats do that violates the 9th amendment?

As I have come to understand it, all that it says is that you can't use the fact that certain rights aren't listed in the constitution to inherently deny people those rights. However, it doesn't say at any point that congress or the states can't make laws denying people those rights.

Also, Roe v Wade is mostly based on the 14th amendment, or at least the justices who wrote it say so. Therefore it wouldn't make much sense for the Democrats to defend Roe based on the 9th amendment considering that the people who wrote it used the 14th.

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life <410 U.S. 113, 165> may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

2. The State may define the term "physician," as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.

In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together. 67

[Katzenjammer]

87. It's not so much violate it as fail to use it

Relying on prior court decisions rather than citing the 9th is a bad idea because of the way it implies that we have no rights that are not granted to us. The fact is that Constitutionally we have ALL rights except those that we explicitly give up. If we looked at it appropriately, the whole basis of government power would change---to our benefit!

[ZombieGak]

92. I never said violate

My point was merely that it's inaccurate for Dems to claim they fully support the Bill of Rights when they ignore the Ninth which is clearly is Rosetta Stone to interpret the intended Constitutional balance between people's rights and government power. Democrats have gotten stuck in the very rut Madison warned against... that unenumerated rights would be at risk.

As for your point about congress or the states are prohibited from making laws denying people those rights… you’re venturing into Scalia Land. He believes that unless rights are enumerated, they don’t exist. And rather than government only having specific powers delegated to it, he believes it can do anything not prohibited.

[Hippo_Tron]

95. Scalia believes that unless rights are specifically stated, they don't exist

I believe that between the Bill of Rights as well as several other amendments (the 13th, 14th, and 15th in particular) there is some constitutional basis to derive most of the rights that we have or should have. By your logic, we have the right to do just about anything unless the constitution says that we can't.

The balance between rights derived from the constitution as well as government powers derived from the constitution has more or less served us well without having to use the 9th amendment every time we don't like a certain law.