The Ninth Amendment

[Cordelier]

I brought up the topic of the coercion of the fed on the Scottsdale school district.

That was a while ago.

Now, we have the debate over CRT.

Isn't pushing this on states and school districts a violation of the 9th amendment ?

Do you mean the 10th?

 

[HikerGuy83]

Do you mean the 10th?

That is where I rely on the knowledge of people like you.

In my mind, the coercion was not aimed at AZ, but at the Scottsdale Public School District.

The pushback was by parents on certain books.

So, it wasn't the states.....

It seems like the individual parents were cut out of the discussion (the school district caved and challenged the parents to replace the board....but shut up in the meantime.....there was only one replacement in the next several years).

And the students (of which I was one) was required to use this book over the objection of my mother and other parents.

Their complaints had to do with what they considered to be sexually inappropriate material.

I suppose my mother could have pulled me from school (but there were not many options back then).

I was just wondering how this is viewed in terms of our discussion.

My mother paid both local and federal taxes which were used to fund the schools.....wasn't going to get those back.

It would seem she would have a right to have a say in what she wanted her son taught. And a right to exclude things that were beyond what she considered appropriate.

 

[Cordelier]

That is where I rely on the knowledge of people like you.

In my mind, the coercion was not aimed at AZ, but at the Scottsdale Public School District.

The pushback was by parents on certain books.

So, it wasn't the states.....

It seems like the individual parents were cut out of the discussion (the school district caved and challenged the parents to replace the board....but shut up in the meantime.....there was only one replacement in the next several years).

And the students (of which I was one) was required to use this book over the objection of my mother and other parents.

Their complaints had to do with what they considered to be sexually inappropriate material.

I suppose my mother could have pulled me from school (but there were not many options back then).

I was just wondering how this is viewed in terms of our discussion.

Without knowing more details, it's hard for me to come down one way or the other on this one, Hiker. Were there any lawsuits filed over it?

Offhand, though, I don't know that students have a right to demand an individually-tailored education. Even if you went to the most expensive private school in the country, all of the students inevitably have to use the same textbook, do they not?

 

[HikerGuy83]

Without knowing more details, it's hard for me to come down one way or the other on this one, Hiker. Were there any lawsuits filed over it?

Offhand, though, I don't know that students have a right to demand an individually-tailored education. Even if you went to the most expensive private school in the country, all of the students inevitably have to use the same textbook, do they not?

You can consider the actual case, or consider what it might have looked like (in my mind) as it raises issues...depending.

In this case, the parents were not demanding a particular textbook....they were objecting to textbooks.

I would think that is materially different.

At the extreme....

It would be silly for one parent to say you can teach my children about algebra, but never use the letter x as a variabale because I hate x.

I do think it would be another case for a parent to say, you can teach my kids about health, but I don't want them being taught pre or extra marital sex is O.K. (as it would be in conflict with basic values being taught in the home). Also don't want my kids seeing pictures of naked women or graphic depictions of sex as I consider this porn.......

I don't want to argue over what is "right" or "wrong". I am interested to know if the 9th would suggest parents could sue for their right to exclude material they deem inappropriate.

 

[Tigerace117]

No, it wasn't.

It was that the federal government is no better at "solving" these issues than the states.

Except it absolutely was, because it was the federal government which crushed Jim Crow.

 

[mrjurrs]

As I said, it's clear that what is says is not important to you.

If you care about uniformed representations, maybe you should get yourself informed.

Answer my question if you can. Choosing not to will allow the other posters to make their own decision.

 

[mrjurrs]

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

You mean like education, marriage and women's choice. As I said, you can talk about the written Constitution, or you can choose to talk about what the Constitution means in real life.

 

[HikerGuy83]

Without knowing more details, it's hard for me to come down one way or the other on this one, Hiker. Were there any lawsuits filed over it?

Offhand, though, I don't know that students have a right to demand an individually-tailored education. Even if you went to the most expensive private school in the country, all of the students inevitably have to use the same textbook, do they not?

I provided another post with some additional thoughts (#79).

While the actual issue does still remain with me (more because of my mother's incensed behaviour), it's really more just a theoretical question.

I think it's reached the point where the conversation is circling back on itself.

 

[HikerGuy83]

Printed off a copy of Kurt T. Lash's "Three Myths of the Ninth Amendment".

He then calls them assumptions:

1. first, that the "other" rights of the Ninth Amendment are limited to individual rights;
2. second, that the Ninth Amendment has nothing to do with the Tenth Amendment-in fact, the two clauses are generally interpreted in a manner placing them at odds with one another;
3. third, like almost all scholars in the modern period, these individual rights theorists assume the Ninth Amendment was forgotten soon after its enactment, thus obviating the need to deal with any of its counter-interpretations or uses.

Just reading through the discussion on the first point...very interesting.

Of course, in all of this......I try to keep in mind point number 3. Which is true. Nobody really talks about it much.

 

[Rich2018]

Why?

To avoid ambiguity and thus confusion.

 

[Cordelier]

You can consider the actual case, or consider what it might have looked like (in my mind) as it raises issues...depending.

In this case, the parents were not demanding a particular textbook....they were objecting to textbooks.

I would think that is materially different.

At the extreme....

It would be silly for one parent to say you can teach my children about algebra, but never use the letter x as a variabale because I hate x.

I do think it would be another case for a parent to say, you can teach my kids about health, but I don't want them being taught pre or extra marital sex is O.K. (as it would be in conflict with basic values being taught in the home). Also don't want my kids seeing pictures of naked women or graphic depictions of sex as I consider this porn.......

I don't want to argue over what is "right" or "wrong". I am interested to know if the 9th would suggest parents could sue for their right to exclude material they deem inappropriate.

They could certainly sue... I just don't think there is an individual right at stake beside their right to due process in being able to sue the school board.

 

[Cordelier]

To avoid ambiguity and thus confusion.

Ambiguity and confusion is the price we pay for flexibility.... but flexibility is what has kept the Constitution relevant for over 200 years. If it didn't bend with the times, it would have broken long ago.

 

[Cordelier]

Printed off a copy of Kurt T. Lash's "Three Myths of the Ninth Amendment".

He then calls them assumptions:

1. first, that the "other" rights of the Ninth Amendment are limited to individual rights;
2. second, that the Ninth Amendment has nothing to do with the Tenth Amendment-in fact, the two clauses are generally interpreted in a manner placing them at odds with one another;
3. third, like almost all scholars in the modern period, these individual rights theorists assume the Ninth Amendment was forgotten soon after its enactment, thus obviating the need to deal with any of its counter-interpretations or uses.

Just reading through the discussion on the first point...very interesting.

Of course, in all of this......I try to keep in mind point number 3. Which is true. Nobody really talks about it much.

On Lash's point #3... you're right, nobody talks about it much, but if you read between the lines, it's referenced all the time. It's the "amendment which shall not be named".

Take an example I used earlier - Justice Scalia's opinion in Heller. In it, he references the fact the there is an individual right to keep and bear arms that exists outside of any militia context. It's true... there is. But it doesn't exist within the 2nd Amendment. On it's own, the 2nd ties the right to keep and bear arms to the necessity of having a well regulated militia. There's nothing in there that indicates the right exists outside of the militia context - and if the Founders intended the 2nd to extend that far, it would have been the easiest thing in the world for them to write it without the prefatory clause.

But if you take that 2nd Amendment right to keep and bear arms and tie it to the 4th Amendment right of individuals to be secure in their persons and their homes, then you get a 9th Amendment right to keep and bear arms for self defense that exists entirely outside of the militia context. Scalia gets there without explicitly referencing the 9th Amendment. Same thing goes for Douglas' majority opinion in Griswold - there, he constructs an individual right to privacy using all of his penumbras and eminations without ever referencing the 9th.... but he's using the 9th all the same. In fact, Goldberg, in his concurring opinion to Griswold, is about the only example I can think of where a Justice builds an opinion that specifically cites the 9th Amendment.

 

[Jason Warfield]

Really ?

No matter what the 9th and 10th say ?

Can I do the same for the 14th ?

I find it hard to believe that someone thinks that Amendments are not a fully integral part of the constitution.

Maybe I missed something.

Of course, this is what Madison had to say about the Federal Government......

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." (Federalist 45)

What you describe is nothing more than the power grab so many were concerned about at the time of the constitution (and apparently with good reason).

The supremacy clause only applies to those laws necessary for the federal government to execute it's duties (the few and defined).

The same is true of the Necessary and Proper Clause.

And Madison made it clear that the General Welfare Clause only applied to those same powers.

The point the other person was making was that the Constitution was ratified in 1788, but the Bill of Rights wasn't even a thing until 3 years later in 1791. The Supremacy Clause still holds sway, no matter of the existence of the Bill of Rights and subsequent amendments made.

The 9th Amendment simply states that the Constitution doesn't name every single right in the world, and that the people should not be limited to just those rights....as long as the rights not listed don't violate the supremacy of the Constitution over all other laws in the nation. So, while on one hand, the state and the people can claim a right, it isn't a right if it violates the Supremacy Clause.

Same for the 10th Amendment, but in the opposite direction where it limits government power to what is in the Constitution...as long as those limitations aren't done to limit the powers within the Constitution. So, if a state tries to pass a law that will limit legal authority of a power in the Constitution, that violates the Supremacy Clause.

The 9th and 10th Amendments do not just give carte blanche powers to the states or citizen that over-rule the Constitution. To do so, would nullify the whole point of the Constitution. They are not worded in that fashion. And the point and powers of the courts is to determine if said rights and limitations of powers as made by the states or the people is, in fact, in line with the Supremacy Clause...and NOT what the Declaration of Independence says about rights since THAT document has a different legal point and effect.

 

[HikerGuy83]

The point the other person was making was that the Constitution was ratified in 1788, but the Bill of Rights wasn't even a thing until 3 years later in 1791. The Supremacy Clause still holds sway, no matter of the existence of the Bill of Rights and subsequent amendments made.

The 9th Amendment simply states that the Constitution doesn't name every single right in the world, and that the people should not be limited to just those rights....as long as the rights not listed don't violate the supremacy of the Constitution over all other laws in the nation. So, while on one hand, the state and the people can claim a right, it isn't a right if it violates the Supremacy Clause.

Same for the 10th Amendment, but in the opposite direction where it limits government power to what is in the Constitution...as long as those limitations aren't done to limit the powers within the Constitution. So, if a state tries to pass a law that will limit legal authority of a power in the Constitution, that violates the Supremacy Clause.

The 9th and 10th Amendments do not just give carte blanche powers to the states or citizen that over-rule the Constitution. To do so, would nullify the whole point of the Constitution. They are not worded in that fashion. And the point and powers of the courts is to determine if said rights and limitations of powers as made by the states or the people is, in fact, in line with the Supremacy Clause...and NOT what the Declaration of Independence says about rights since THAT document has a different legal point and effect.

Thank you for that explanation.

I think we are on the same page in almost all respects.

 

[Rich2018]

Ambiguity and confusion is the price we pay for flexibility.... but flexibility is what has kept the Constitution relevant for over 200 years. If it didn't bend with the times, it would have broken long ago.

It's too high a price

You say flexibility, I say chaos.

 

[Cordelier]

It's too high a price

You say flexibility, I say chaos.

If you don't like chaos then why not just institute an authoritarian regime? Then everything is what the guy on top says it is. Doesn't get clearer than that.

The more voices you have in making and interpreting law, the more chaos you get.

 

[HikerGuy83]

If you don't like chaos then why not just institute an authoritarian regime? Then everything is what the guy on top says it is. Doesn't get clearer than that.

The more voices you have in making and interpreting law, the more chaos you get.

I started a thread on Mississippi's abortion law that outlines a couple of questions that our discussions here have surfaced.

But I want to go back to something that I have been unable to sort out.

1. The ninth amendment was an amendment to the U.S. Constitution.
2. The ninth is really not incorporated.

So, who are the courts protecting these rights from ? The federal government ? The states ? Anyone ? I know it may sound stupid, but it comes back to the idea that the SCOTUS recognized rights in cases like Griswold and Roe.

Can the states recognize rights too ?

 

[HikerGuy83]

In his paper (cited in post #84), Kurt T. Lash states that many think the ninth was Madison's idea.

In fact, he states, just like the 10th, this is a response to the concern of state assemblies that the Constitution did not contain enough limitations on Federal Power.

He states Madison wanted to avoid a second national convention that might radically alter the proposed national government. He then cites a paper that I have printed but not read.

 

[Cordelier]

I started a thread on Mississippi's abortion law that outlines a couple of questions that our discussions here have surfaced.

But I want to go back to something that I have been unable to sort out.

1. The ninth amendment was an amendment to the U.S. Constitution.
2. The ninth is really not incorporated.

So, who are the courts protecting these rights from ? The federal government ? The states ? Anyone ? I know it may sound stupid, but it comes back to the idea that the SCOTUS recognized rights in cases like Griswold and Roe.

Can the states recognize rights too ?

Depends on the case and how the plaintiff frames it and who they name the defendant in the case. But so far as jurisdiction goes, matters asserting a constitutional right are, under Article III §2, are up to the Federal judiciary to resolve.

 

[HikerGuy83]

Depends on the case and how the plaintiff frames it and who they name the defendant in the case. But so far as jurisdiction goes, matters asserting a constitutional right are, under Article III §2, are up to the Federal judiciary to resolve.

When we use the term constitutional right....we are referencing the U.S. Constitution.

Can the people of North Dakota have (North Dakota Constitutional) rights that are unique to them.

 

[Cordelier]

When we use the term constitutional right....we are referencing the U.S. Constitution.

Can the people of North Dakota have (North Dakota Constitutional) rights that are unique to them.

Absolutely.... they can have rights over and above those guaranteed by the Constitution.... but they can't deny their citizens any rights guaranteed them by the US Constitution. Nor can those rights be interpreted so expansively as to infringe on the Federal Government's Constitutional powers.

 

[HikerGuy83]

Absolutely.... they can have rights over and above those guaranteed by the Constitution.... but they can't deny their citizens any rights guaranteed them by the US Constitution. Nor can those rights be interpreted so expansively as to infringe on the Federal Government's Constitutional powers.

Thank you for the clarification.

Lots to think about.

 

[Rich2018]

If you don't like chaos then why not just institute an authoritarian regime?

So in your mind the ONLY alternative to an ambiguous constitution - as found in the USA - is a totalitarian dictatorship ?

How sheltered your political knowledge must be
Have you any familiarity with the constitutions of other countries in the world

One that a not dictatorships, but oddly enough don't have constitutions with the level am ambiguity contained in the US Constitution.

Then everything is what the guy on top says it is. Doesn't get clearer than that.

Or how about not " the guy on top", but a constitution lacking in ambiguity - not that you have ever seen one. Indeed I'm willing to bet you've only ever seen ONE.

The more voices you have in making and interpreting law, the more chaos you get.

No, the more ambiguity in your laws, the more chaos you get.

 

[Cordelier]

So in your mind the ONLY alternative to an ambiguous constitution - as found in the USA - is a totalitarian dictatorship ?

How sheltered your political knowledge must be
Have you any familiarity with the constitutions of other countries in the world

One that a not dictatorships, but oddly enough don't have constitutions with the level am ambiguity contained in the US Constitution.



Or how about not " the guy on top", but a constitution lacking in ambiguity - not that you have ever seen one. Indeed I'm willing to bet you've only ever seen ONE.



No, the more ambiguity in your laws, the more chaos you get.

The less flexible a Constitution is, the more apt it is to break - usually in the direction of authoritarianism. How else do you think France is now on the 5th Republic? And let's not forget, those 5 French Republics aren't laid out consecutively.... there were authoritarian episodes between them... The 1st broke and led to Napoleon and the Bourbon restoration. Then there was the 2nd Republic, and that broke and led to the 2nd Empire of Napoleon III. Then there was the 3rd Republic, which essentially rotted from within under Hitler kicked it over... and that led to the Vichy regime. After the war, there was the 4th Republic, which was probably the least flexible of all.... so inflexible that the governments of the day couldn't actually govern. And when that one fell in 1958, de Gaulle could have easily become a dictator himself.... just like George Washington could have become one. But, like George Washington, he chose instead to make the Presidency a reflection of his beliefs instead of himself... and gave France a constitution flexible enough to respond to changing conditions.

The fundamental lesson here is that there is, in any nation, a balance that must be struck between security and freedom. The more you have of one, the less you tend to have of the other. That same balance is reflected between order and chaos.