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The Ninth Amendment

A constitutionally incoherent and laughable "justification" perhaps . . .

For what purpose it is presented is not readily apparent, other than to usurp, which is rejected.
You are incorrect. After being enumerated in the Constitution, the N&P clause has been supported by SCOTUS beginning in 1819 (McCullough v MD).
 
This is true. I haven't actually pulled up the clean air act, but I'll do so. That's the objections I continually have to related assertions of "That's not what the Constitution authorized". The Supreme Court rejected the minimalist approach during the lifetime of the Founders, and they've rarely looked back. Even so-called "strict constructionists" like Jefferson and Madison didn't behave that way while in office.

The Constitution provides a framework for governance, and it is intended to be functional. The goal of too many complainers is, they don't want a functional government. (It's really why they hate Democrats. Democrats get things done.) Congress is given broad authority, and the ability to pass legislation to accomplish it. Yes, legislation has to be within that authority, but it is mostly Congress that gets to decide if it is.

Zealot ringht wingers would have the US government try to govern with one hand tied behind its back or the chaos of 50 states each doing their own thing.
 
Sorry, but you're wrong. Completely and utterly. You need better sources. Seriously.

There is a faction of conservative theorists who wish to promote that fiction, but it had been rejected over 200 years ago.

Congress can't mint money ?

Who knew ?

Or did you means something else.

Seriously. How do you expect anyone to buy your argument when you didn't make one ?

I have a lot of respect for your knowledge.

But to simply make this type of claim is insulting.
 
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Where it comes to the General Welfare clause, all you need to remember is this:

Hamilton > Madison

I have to honestly ask how you think your claim should be taken seriously ?

What is the basis for that claim.
 
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Pulling a post over from another thread:

It's a founding principle of this nation that individual rights exist... and that holds true whether or not they are actually written down within a Constitution. Remember that famous statement in the Declaration of Independence:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness...."

All the 9th Amendment really does is pay heed to that principle. The rights we hold extend far beyond what is in our power to list. All we need do is lay claim to them... and the Courts need do is supply the means for determining them unalienable.

Complements of @Cordelier

It was interesting to think about the fact that the Constitution does not specifically call out life, liberty and the pursuit of happiness.

The definition of unalienable is: impossible to take away or give up

In looking this over.....

1. Can one state recognize a right while another does not (this was the case in 1972 when Roe was heard by the SCOTUS) ?

2. Are the courts really the ones to determine them inalienable ?

3. If the answer to (2) is no, then how are they claimed ?

Just thinking out loud.
None of this was made available to all equally in its day, whatever the interpretation. And it doesn't seem to have settled anything formally that we can all agree on since it's inception. So were still thinking about it out loud why? We don't still yet understand it? We're all trying to maximize our own personal angle on it? We're still interested in running this thing like an 18th century fledgling empire slave society? Mental philosophical exercise?
 
None of this was made available to all equally in its day, whatever the interpretation. And it doesn't seem to have settled anything formally that we can all agree on since it's inception. So were still thinking about it out loud why? We don't still yet understand it? We're all trying to maximize our own personal angle on it? We're still interested in running this thing like an 18th century fledgling empire slave society? Mental philosophical exercise?

I have to agree with your point.

And to a large extent, I am not sure we'll ever understand it in the sense that we'll agree on what it means as that might actually mean allowing the "other side" to do what you don't want them to do.

It is clear that people believe what they want to believe because it fits their view of what should be.

I put myself in that same category.
 
I have to agree with your point.

And to a large extent, I am not sure we'll ever understand it in the sense that we'll agree on what it means as that might actually mean allowing the "other side" to do what you don't want them to do.

It is clear that people believe what they want to believe because it fits their view of what should be.

I put myself in that same category.
It's well worth studying. The problem is the "sides" perceptual reality. And we're talking about a land mass colonized by the taking. Rhetoric aside. And we're inherently violent and pretty neurotic. So even if it was the perfect document ...
 
BTW: Folks....

This thread is about the ninth amendment.
 
No worries. Minutia hides the realities, I'm off, cheers.

Have a good night !

I'll look for a thread or start a new one on the General Welfare Clause.

Appreciate you thought provoking input.
 
Congress can't mint money ?

Who knew ?

Or did you means something else.

Seriously. How do you expect anyone to buy your argument when you didn't make one ?

I have a lot of respect for your knowledge.

But to simply make this type of claim is insulting.
You didn't cite your source. I was insulting your source.

First, the Ninth Amendment probably encapsulates the conception of the Constitution as fully as the preamble. The conception, I agree, is that by "natural right" the denizens of the nation possess full freedom of action. They possess the right to do anything during their short and brutish lives. And that is why they constitute governments.

But, by entering into union, they preserve those rights as against each other by dint of government action. I.e., those rights are, by enumeration, protected explicitly by the government. But, because of the limitations of human imagination, they acknowledged that there may be other rights that they hadn't thought of that should also be protected.

At the same time, the people of the United States transferred authority to their government to work on their behalf to preserve their general welfare and defend the nation as a whole. That transfer of authority was not complete, but it was robust. It was not unlimited, but it was broad. They spoke in generalities to allow flexibility in application, not to constrain the government to prevent it from doing its work and being successful.

Too many people with limited imaginations and ulterior motives seek to constrain that authority by a myriad of artifices. They talk in codes and euphemisms like "originalism" and "limited government" that are not consistent with the intent or aspirations of the framers. I'm not one of those people. You acknowledged that there are implied authorities included with those express ones. I agree. One cannot coin money without mints. One cannot build forts and needful structures without the ability to acquire property to place them on. "Dispose" in the Constitution did not mean only "get rid of," but the right to make decisions about disposition, which includes acquisition.

The framers would be rightfully embarrassed by some of the ridiculous interpretations of their words as they have been espoused by some to prevent the government from functioning on the people's behalf. That is not what they envisioned, and both history and the courts have recognized that.
 
I'll look for a thread or start a new one on the General Welfare Clause.
I look forward to contributing. It's one of my favorite topics.
 
I have to honestly ask how you think your claim should be taken seriously ?

What is the basis for that claim.
Supreme Court precedent. As was pointed out earlier with the reference to Butler. Justice Story's view has controlled for about 200 years. But, that should probably go in the General Welfare thread.
 
I have to honestly ask how you think your claim should be taken seriously ?

What is the basis for that claim.

I already cited a passage from Butler that sums it up pretty succinctly. But even if you look at the Constitution's text on it's own, why would it even cite the phrase "general welfare" if it wasn't a separate grant of Congressional power? If they only intended Congress to have the powers listed, then wouldn't it have been sufficient to just list them?
 
Except it absolutely was, because it was the federal government which crushed Jim Crow.

My mistake.

The things I keep seeing today on white supremacy must all be false.

After all, the federal government (which was complicit in setting it up) "crushed it".

I hate to be sarcastic, but the evidence does not support your claim.
 
My mistake.

The things I keep seeing today on white supremacy must all be false.

After all, the federal government (which was complicit in setting it up) "crushed it".

I hate to be sarcastic, but the evidence does not support your claim.

All of which uses to be the law of the land, with the states defending it fanatically. Mississippi even created its own version of the Stasi to try and protect Jim Crow. None of that changed until the federal government dropped the hammer.
 
From Justice Owen Roberts' opinion in US v. Butler, 297 US 1, 16 (1936):

"The general welfare clause should be construed broadly to include anything conducive to the national welfare; it is not limited by the subsequently enumerated powers. Congress may tax (and appropriate) in order to promote the national welfare by means which may not be within the scope of the other Congressional powers. That this, commonly known as the Hamiltonian theory, is correct, is shown by the plain language of the clause; by the circumstances surrounding its adoption; by the opinion of most of those who participated in the early execution of the Constitution; by the opinion of later authorities; and by long-continued practical construction."

Forgive me, but this is Owen Roberts (the famous "switch in time that saved nine").

He was a SCOTUS judge which allowed him to write this.

It certainly does not protect it from being challenged.
 
All of which uses to be the law of the land, with the states defending it fanatically. Mississippi even created its own version of the Stasi to try and protect Jim Crow. None of that changed until the federal government dropped the hammer.

I guess that was my point.

They missed.
 
Forgive me, but this is Owen Roberts (the famous "switch in time that saved nine").

He was a SCOTUS judge which allowed him to write this.

It certainly does not protect it from being challenged.

Challenge it on what basis, though? Like I said before, if "general welfare" wasn't a separate grant of spending power to Congress, then why use the term at all?
 
You are incorrect. After being enumerated in the Constitution, the N&P clause has been supported by SCOTUS beginning in 1819 (McCullough v MD).

In McCulloch, Marshall accurately predicted that “the question respecting the extent of the powers actually granted [by the Constitution], is perpetually arising, and will probably continue to arise, as long as our system of government shall exist.”

And he was right.

Starting with his own decision.

McCullough has long been considered controversial for several reasons.

The Necessary & Proper Clause should not be lumped in with Marshall's judicial mutations.

Instead, it is easy enough to understand without them.
 
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Challenge it on what basis, though? Like I said before, if "general welfare" wasn't a separate grant of spending power to Congress, then why use the term at all?

This is what you quoted from Roberts.

"The general welfare clause should be construed broadly to include anything conducive to the national welfare; it is not limited by the subsequently enumerated powers.

His first sentence is at total variance with spirit of the Constitution.

His tacked on commentary only pours salt in the wound created by his first statement.
 
In walking back through this thread:

1. I have appreciated the thoughtful input of those on both sides of the argument.

2. In the end, it seems that individual tendency for a particular outcome (more limited government or less limited government....and by government, I mean federal government) tends to influence what they share and in what context they share it.

3. Real world applications are, unfortunately, somewhat lacking due to the fact that 9th is rarely cited in support of a decision.

Thank you to all who have participated so far.
 
This is what you quoted from Roberts.

"The general welfare clause should be construed broadly to include anything conducive to the national welfare; it is not limited by the subsequently enumerated powers.

His first sentence is at total variance with spirit of the Constitution.

His tacked on commentary only pours salt in the wound created by his first statement.

Really? And what's the spirit of the Constitution? It's that the power to spend is tied to the power to tax. As the power to tax broadens - as it did with the ratification of the 16th Amendment - then so too does the power to spend for the general welfare.
 
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