Are The Dems/Left Too Beholden to Stare Decisis?

[ZombieGak]

I think the Dems/Left tend to keep citing stare decisis because it's on the basis of court rulings that we have the right to privacy and the right to choose.

Of course this doctrine is probably also preventing the reexamination of corporate personhood.

I think the Dems/Left are making a strategic mistake but not fighting for a broader interpretation of the 9th amendment that protects unenumerated rights as the REAL legal basis for the right to privacy and the right to choose.

If they don't... and Roe is overturned... what's the fallback position to guarantee the right to choose on the FEDERAL level?

[SlipperySlope]

1. Way too dependent on Stare Decisis

The line of reasoning in Roe v. Wade is weak, and could easily be overturned by a future court.

The honest (and smart) way to protect the right to choose would be to amend the Constitution.

[ZombieGak]

2. why amend the constitution when.......

Why try to amend the constitution when we know there will be immense resistance and it may never be ratified? And if in the meantime Roe is overturned.... then what? It's the very situation I'm warning agaist.

Why not dust off the ninth amendment which says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." and claim the Bill of Rights as the basis for such basic rights as privacy and the right to choose?

[pop goes the weasel]

3. 9th amendment should be the basis of privacy rights

Perhaps a new organization to champion it? Who's in?

[mcscajun]

4. The ACLU already exists...to protect all of the First Ten Amendments

It's their sole mission.

http://www.aclu.org/about/index.html

Join now!

And those who support the Right To Privacy, from judges to constitutional scholars, know that the Ninth Amendment is where it rests.

[ZombieGak]

8. does the ACLU have a position on the 9th?

It's really not that clear from http://www.aclu.org/about/index.html

It seems their emphasis is on enumerated rights.

If our system is built upon the assumption that the people retain all powers not delegated to the state and federal governments in their respective constitutions... then I believe the 9th prohibits at least the federal government from restricting rights without some legitimate intent. Unfortunately this has been bastardized by both parties that the government can pass bad laws and people have to take on government to prove basic rights even existed.

[mcscajun]

16. More...

"Your right to privacy - freedom from unwarranted government intrusion into your personal and private affairs."

Anyhow...here's their (our - I'm a member) page on privacy:
http://www.aclu.org/privacy/index.html

You'll find they (we) fight for privacy rights on any number of fronts.

[ZombieGak]

20. that's the 4th...

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What I'm asking about is whether the ACLU has a broader interpretation of the Bill of Rights than just the enumerated rights they cite.

For example does the ACLU believe there's a right to expect government to try all LEAST restrictive means first in dealing with legitimate social problems? For instance should anti-drug laws be designed to protect a responsible user's rights?

[mcscajun]

23. The quote is from the Fourth, Yes...but the Privacy page covers

issues related to the Fourth, Fifth and Ninth Amendments

I cannot answer all of your questions off the top of my head. I suggest reading the page I linked previously to find your answers.

[SlipperySlope]

12. Only nine - they ignore the 2nd

[ZombieGak]

22. hardly

I take it you believe in an expansive view of the second. I believe it applies only to militias which are now the National Guard. I believe my right to own a firearm comes from the 9th.

[mcscajun]

24. They don't ignore it so much as take a neutral position on it.

The ACLU does not support an unlimited right to own guns, and does not object to reasonable gun control.

For more expansive support, you want the NRA.

Disclosure: I'm a gun owner, and a member of the ACLU, but not of the NRA.

[ZombieGak]

5. there really needs to be a national organization......

There really needs to be a national organization to promote the 9th and maybe the ACLU is already doing so. But there needs to be massive education efforts to counter the implicate position of the two major parties that the 9th is irrelevant.

[pop goes the weasel]

6. exactly

There are organizations that exist to illuminate and support other individual Bill of Rights amendments. Why not this one? Most people aren't even aware of its existence.

[ZombieGak]

7. more thoughts on the Dems flawed game plan

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x98132

[mcscajun]

18. Then join the ACLU, check the following page...

...and give generously to the fight.

Besides my annual membership, I'm signed up to donate monthly to their efforts.

http://www.aclu.org/privacy/index.html

http://action.aclu.org/site/PageServer?pagename=FJ_donationhome

[0rganism]

10. 4th ammendment already is

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Of course it's been shredded all to hell by the War on Some Drugs, but the founders' intent remains obvious.

[Lefty48197]

9. Stare decisis is the law of the land, unless it gets overturned.

So I vote for supporting the law of the land. If you don't like the earlier decision, then you need to get a law passed, or get that earlier decision overturned.

[ZombieGak]

15. stare decisis is merely a judical philosphy

Stare Decisis is not the law of the land. It's merely a judicial philosophy that respects precedent.

[Lefty48197]

19. Yeah, it means let the decision stand

and unless that decision is overturned, then the earlier decision remains the law of the land.

[ZombieGak]

21. is a bias in favor of precedent......

The law is the law until overturned. Stare decisis is a bias in favor of legal precedent. It's not the law per se.

[Selatius]

11. Why not introduce a sort of "privacy amendment"?

I wouldn't be sure how it's worded, but if we get it down on paper and put it into the Constitution, that should clear up any gray areas. If we get explicit about it and put it into law, it should be even clearer to everybody.

[ZombieGak]

13. let the Right try to REPEAL the 9th!!!!

As I responded to someone who suggested we pass a pro-choice amendment.....

"Why try to amend the constitution when we know there will be immense resistance and it may never be ratified? And if in the meantime Roe is overturned.... then what? It's the very situation I'm warning against.

Why not dust off the ninth amendment which says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." and claim the Bill of Rights as the basis for such basic rights as privacy and the right to choose?"

To go the 9th amendment route covers more with existing law. The amendment route dooms us to keep hoping we can keep passing amendment after amendment to meet the Right's latest threats... if we can pass any at all. As part of this strategy I say we propose that if the Right doesn't like the right to privacy or to chose, let THEM pass an amendment to REPEAL the 9th!!! LOL

[mcscajun]

25. There was much the same debate in the Consitutional Convention

and Alexander Hamilton was of a mind that the bill of rights was not only unnecessary but dangerous, as not everything held to be the 'rights of men' could be ennumerated. So the Ninth was put in to cover all the things not ennumerated in the other amendments.

One delegate, from Georgia if memory serves, basically cited the danger of ennumerating all the rights they could think of and having some fool come along later and saying because it wasn't mentioned, that we had not the right.

Sound familiar?

The Ninth Amendment is broad for a reason, and unfortunately, the very breadth of it is the reason for the continuing debate. The Federalists and the Anti-Federalists are still among us, having the same old arguments; they just go by different labels these days.

[ZombieGak]

26. quotes from Madison...

I posted some quotes from Madison on the 9th: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x98132

[LittleClarkie]

14. Stare what now?

Excuse my ignorance but ... hrrr?

[ZombieGak]

17. there's another thread.....

with the definition: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x102149