There is no such thing as a "natural" or "unalienable" right

[Buckeyes85]

How can there be inalienable rights when all rights can be taken away?

Don't you think that's a hyper literal interpretation of the word? In theory, everything in the universe could be taken away and therefore the word should not exist.

 

[Antiwar]

Don't you think that's a hyper literal interpretation of the word? In theory, everything in the universe could be taken away and therefore the word should not exist.

No. That's the definition.

It reminds me of those plastic hair combs that has "unbreakable" written on them.

 

[Vadinho]

Even if you enumerate a new right via constitutional amendment, though, that still doesn't negate the existence of the 9th - unenumerated rights will still have legitimacy. That's exactly why Nat's Article V argument is vacuous at best.

Of course, that is the obvious conclusion to this discussion.

 

[Cordelier]

Since specificity is important, the 9th does not refer to the rights "retained" by the people. The 9th was a concession to those who were concerned that if you list 5- or 10 specific rights, people will come along and say "hey, that right isn't in the bill of rights, you don't have it." Which is false. So the 9th was a clarifier for all those who would make that argument by reminding them: just because it isn't listed here as a right, doesn't mean the government gets to deny it. Pretty key distinction in my mind. Not retaining a right but clarifying the people have all the rights, whether listed or not.

Exactly so... and that fact should conclusively put to rest the central argument of this thread.

 

[NotreDame]

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

Lol. The phrase “allow the federal government” is not written in the statute. But I commend you on your layperson activism of reading that literal phrase into the law when it doesn’t exist and thereby, change what the very text of the law says. The liberal justices you are bashing would be proud.

 

[NotreDame]

If, on the other hand, it had been the intent of those who ratified the 14th to completely reverse the meaning of the 9th amendment, I think the text of the 14th might have included some mention of that, or at least the on-the-record arguments in support of the then proposed 14th would have said something to that effect.

Nope, this view of the 14th and 9th was an invention of the Court nearly a century after the 14th was ratified.

They did. In legal circles it is called the “P and I clause.” For the rest, it’s called the privileges and immunities” clause. And like the 9th Amendment, to which I referred you to a law reviw article as to its meaning and that same article has evidence for its meaning, there is historical evidence the P and I clause was conceived and understood to refer to all the rights in the first 9 amendments.

The 14th Amendment was conceived, in part, to be a complete and absolute repudiation of the Dredd Scott decision, specifically that blacks, slaves, and their descendants couldn’t enjoy all the rights, privileges, and immunities enjoyed by the people under the U.S. Constitution. Indeed, John Bingham, sometimes called the “Father is the 14th Amendment,” had in mind a complete reversal of the Dred Scott decision. And recall, one of the rights at issue in the Dred Scott decision was the unenumerated right of having access to the courts to file a suit and litigate a claim!

As the Court said, “The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.” That unenumerated right would be protected by the 9th.

Now that’s but a small piece of evidence the 14th Amendment incorporated the first 9 amendments, and definitely the 9th Amendment.

 

[Buckeyes85]

They did. In legal circles it is called the “P and I clause.” For the rest, it’s called the privileges and immunities” clause. And like the 9th Amendment, to which I referred you to a law reviw article as to its meaning and that same article has evidence for its meaning, there is historical evidence the P and I clause was conceived and understood to refer to all the rights in the first 9 amendments.

The 14th Amendment was conceived, in part, to be a complete and absolute repudiation of the Dredd Scott decision, specifically that blacks, slaves, and their descendants couldn’t enjoy all the rights, privileges, and immunities enjoyed by the people under the U.S. Constitution. Indeed, John Bingham, sometimes called the “Father is the 14th Amendment,” had in mind a complete reversal of the Dred Scott decision. And recall, one of the rights at issue in the Dred Scott decision was the unenumerated right of having access to the courts to file a suit and litigate a claim!

As the Court said, “The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.” That unenumerated right would be protected by the 9th.

Now that’s but a small piece of evidence the 14th Amendment incorporated the first 9 amendments, and definitely the 9th Amendment.

No argument that your last statement is the prevailing view today, although not sure why you omitted the 10th as incorporation of that amendment has some significant impact. But note, it was not the position of the Supreme Court for decades after ratification of the 13-15 amendments necessarily incorporated the first 10 so as to apply to the states. I don't think those decisions started coming out until the 1920s or so.

 

[NotreDame]

No argument that your last statement is the prevailing view today, although not sure why you omitted the 10th as incorporation of that amendment has some significant impact. But note, it was not the position of the Supreme Court for decades after ratification of the 13-15 amendments necessarily incorporated the first 10 so as to apply to the states. I don't think those decisions started coming out until the 1920s or so.

I agree. And why? A racist Court loathe to extend the breadth of the 14th Amendment as a limit on state powers in protecting the rights of not only Caucasians, but blacks as well. Essentially, the meaning be damned.

 

[NotreDame]

You're conflating intent and literalism. See the 1A example in the last paragraph of this post:

A Thought Exercise on Originalism vs a More Activist Approach

I think it also appropriate, as a cogitate, to place a framework around my thinking: I believe the Constitution, in particular the General Welfare clause, is more capacious with regard to federal authority than generally appreciated, and that the Ninth Amendment is far more limiting than would...

debatepolitics.com

There is a difference between assessing intent behind an enumerated right and fabricating a new right that is found nowhere in the Constitution.

You're conflating intent and literalism

That’s your answer? First, I could not care less about intent. As a textualist and originalist, I loathe intent. My argument doesn’t invoke intent, a sign your reply has nothing to do with my drawing parallels of your argument to the 1st Amendment. I also despite literalism, and its is conspicuously devoid from my argument.

To the contrary, nothing you’ve just said about my view could be further from the truth. I understand the principle when interpreting the Constitution, and the BOR, literalism is a poor mode of interpretation. The provisions must be interpreted and applied reasonably to a set of circumstances unforeseen by the framers. That is part science and part art. Hence, I’m fully aware the common law and other legal sources contextualizing the contours of free speech aren’t going to enumerate every conceivable circumstance that is or isn’t free speech.

The expressive act of wearing armbands to a public school to protest a war, is it speech? This specific example isn’t to be found in the common law, statutes, writings, etcetera. In other words, if this is a free speech right, it is unenumerated, as there’s nothing specifically written in 1791 saying this expressive speech is a speech right, just as there isn’t a list of rights for the 9th.

So, how is it determined whether that situation above is or isn’t speech? Your dreaded and inconceivable “political appointees” to the Court being able to say X is a “right” to exist in the 9th, collaborated together to say this specific conduct is a free speech right, despite the fact is isn’t specifically stated anywhere else, like those rights of the 9th you favor to deride.

What about a baker, which is a public accommodation under state law, refusing to print a message on a cake because of the sexual orientation of the customer, the customer is gay. Think those facts are enumerated as a free speech right in an obscure cave painting left to us by the framers? If it exists, I yet to read or hear about it.

Your dreaded “political appointees” will have to collaborate about whether the facts above are speech, despite the fact the framers didn’t detail, enumerate, that as speech or not as speech, just as “political appointees” do the same for the 9th.

And your distinction is meaningless. Either way your dreaded “political appointees” is detemining what IS a free speech right. It is a shallow argument to say the horrors of “political appointees” finding rights in the 9th when the rights aren’t detailed, enumerated, is inconceivable, but magically palatable when the same is done to say some specific act, that isn’t detailed/enumerated as speech, is speech anyway. The argument the distinction between the enumerated right and unenumerated right is meaningless, as Madison expressly said the 9th exists to treat them the same, evidence of its meaning, and the plain text treats them the same.

There’s analytically no difference between “political appointees” spinning your “wheel of rights” to find a right as an unenumerated right in the 9th and spinning the “wheel of rights” to find some conduct not enumerated as a free speech right to be a free speech right.

 

[NotreDame]

Actually, there isn't. The process is the same. An "Originalist" would look at the contemporary records and understandings at the time of creation - in this case the 9th Amendment - and determine if the existence of an "unenumerated right" would have been within the understanding and expectation of the framers. You persist in this hangup of reading elements of the Constitution out of existence.

I’m beginning to think the gap for him is his lack of knowledge of how originalists bridge the past meaning to apply to contemporary times when the past meaning simply didn’t account for everything today. Some lawyers have difficulty grasping this notion.

As Scalia acknowledged, I know he’s not on your Christmas list, but this acknowledgment is spot on here, discovering, finding, uncovering the original meaning is the first step. The next step is the justice/judge usually has to make an informed judgment call of how that meaning applies to the situations and facts of today and the outcome, where reasonable people can disagree. Why? Because the original meaning typically provides general guidance, it is not a detailed operation manual, in which people can reach reasonable different outcomes from the same original meaning.

I think he misses this factual aspect of this practice of law.

 

[Glitch]

Lol. The phrase “allow the federal government” is not written in the statute. But I commend you on your layperson activism of reading that literal phrase into the law when it doesn’t exist and thereby, change what the very text of the law says. The liberal justices you are bashing would be proud.

Before the ratification of the Fourteenth Amendment in 1867, all the Bill of Rights only applied to the federal government. None of them applied to the States. The Fourteenth Amendment changed that. However, the Supreme Court decided to selectively incorporate each of the Bill of Rights to the States as each case is brought before them to review. As a result the Supreme Court did not apply the First Amendment to the States until 1925. The Supreme Court did not apply the Second Amendment to the States until 2010, 143 years after the ratification of the Fourteenth Amendment. The Supreme Court did not apply the Eighth Amendment to the States until 2019, 152 years after the ratification of the Fourteenth Amendment.

The fault is entirely with the Supreme Court and how they refused to implement the Fourteenth Amendment for more than a century and a half. There are still parts of the Bill of Rights that still do not apply to the States, such as Grand Juries under the Fifth Amendment, because the Supreme Court still has not gotten around to incorporating them and applying the Bill of Rights to the States as the US Constitution has required since 1867.

 

[NatMorton]

That’s your answer? First, I could not care less about intent. As a textualist and originalist, I loathe intent. My argument doesn’t invoke intent, a sign your reply has nothing to do with my drawing parallels of your argument to the 1st Amendment. I also despite literalism, and its is conspicuously devoid from my argument.

To the contrary, nothing you’ve just said about my view could be further from the truth. I understand the principle when interpreting the Constitution, and the BOR, literalism is a poor mode of interpretation. The provisions must be interpreted and applied reasonably to a set of circumstances unforeseen by the framers. That is part science and part art. Hence, I’m fully aware the common law and other legal sources contextualizing the contours of free speech aren’t going to enumerate every conceivable circumstance that is or isn’t free speech.

The expressive act of wearing armbands to a public school to protest a war, is it speech? This specific example isn’t to be found in the common law, statutes, writings, etcetera. In other words, if this is a free speech right, it is unenumerated, as there’s nothing specifically written in 1791 saying this expressive speech is a speech right, just as there isn’t a list of rights for the 9th.

So, how is it determined whether that situation above is or isn’t speech? Your dreaded and inconceivable “political appointees” to the Court being able to say X is a “right” to exist in the 9th, collaborated together to say this specific conduct is a free speech right, despite the fact is isn’t specifically stated anywhere else, like those rights of the 9th you favor to deride.

What about a baker, which is a public accommodation under state law, refusing to print a message on a cake because of the sexual orientation of the customer, the customer is gay. Think those facts are enumerated as a free speech right in an obscure cave painting left to us by the framers? If it exists, I yet to read or hear about it.

Your dreaded “political appointees” will have to collaborate about whether the facts above are speech, despite the fact the framers didn’t detail, enumerate, that as speech or not as speech, just as “political appointees” do the same for the 9th.

And your distinction is meaningless. Either way your dreaded “political appointees” is detemining what IS a free speech right. It is a shallow argument to say the horrors of “political appointees” finding rights in the 9th when the rights aren’t detailed, enumerated, is inconceivable, but magically palatable when the same is done to say some specific act, that isn’t detailed/enumerated as speech, is speech anyway. The argument the distinction between the enumerated right and unenumerated right is meaningless, as Madison expressly said the 9th exists to treat them the same, evidence of its meaning, and the plain text treats them the same.

There’s analytically no difference between “political appointees” spinning your “wheel of rights” to find a right as an unenumerated right in the 9th and spinning the “wheel of rights” to find some conduct not enumerated as a free speech right to be a free speech right.

I'll give you this, you don't settle for a few dozen words when a few hundred will do.

Let's stick to the first amendment and how I believe the courts should (and generally do) interpret it. Let's also take your first amendment example. Are you really saying that the reason I must be allowed to wear an "armband" in a public space isn't because of the first amendment and its intended meaning of protecting all forms of expression, but rather because of the 9th an some unenumerated right to wear an armband?

 

[Anarchist100]

Okay, that subject line is a bit extreme, but hey, it was a hook and it got you here.

What I mean is this. Often unalienable or natural rights are cited as a concept to justify all kinds of judicial hijinks. "This is clearly a natural right, so even though it's mentioned no where in the Constitution it must be a Constitutionally protected right, right?" Such laws certainly have meaning and they were a source of inspiration for the freedoms we enjoy today. But in a legal sense, ultimately unalienable and natural rights amount to little more than political poetry. They sound nice but don't mean much.

I say this because at the end of the day the only rights you really enjoy are those your government chooses to protect. Doubt this? Let's pick one, liberty. Fairly uncontroversial as far as unalienable rights go, but do the people of North Korea have it today? Did those in Soviet Russia or Nazi Germany? Did African Americans enjoy it in the United States prior to 1865 (or at times after)? An unalienable right means absolutely nothing when you're sitting in a concentration camp having been found guilty of a thought crime.

So are natural rights in anyway meaningful in a legal context?

What say you?

We must be good and kind to one another. End of story mate.

 

[NatMorton]

We must be good and kind to one another. End of story mate.

That's nice.

 

[NotreDame]

Let's stick to the first amendment and how I believe the courts should (and generally do) interpret it. Let's also take your first amendment example. Are you really saying that the reason I must be allowed to wear an "armband" in a public space isn't because of the first amendment and its intended meaning of protecting all forms of expression, but rather because of the 9th an some unenumerated right to wear an armband?

Of course not. The point is to draw a parallel to your dreaded "political appointees" discovering rights in the 9th Amendment for unenumerated rights and "political appointees" doing the same for a specific enumerated right, the Free Speech Clause. The purpose is to illuminate an inconsistency by highlighting a reality your argument ignores, that political appointees are engaged in the same discovering of rights for enumerated rights, by way of example free speech, as they are for the 9th Amendment.

Again, by way of example, the Free Speech Clause, which is not accompanied with any detailed list of what speech and speech conduct is free speech, results in your dreaded "political appointees" discovering some specific speech conduct is free speech. So, wearing armbands to a public school to protest a war, expressive speech, there wasn't any oracle for the Justices to consult to inform them A.) Expressive speech can qualify as speech under the Free Speech Clause and B.) Wearing arm bands to a public school to protest a war is free speech. Neither was there any parchment they could point to left by the people alive in 1791 enumerating expressive conduct of this kind as speech under the 1st Amendment. This required your dreaded "political appointees" collaborating and deciding this specific expressive speech conduct is free speech under the 1s Amendment, although no such enumeration existed establishing this specific expressive conduct is free speech. Similar to the dreaded "political appointees" discover rights for the unenumerated rights in the 9th Amendment. Which is to say, the exact same phenomenon you despise for the 9th Amendment, political appointees discovering rights under the 9th Amendment, has, is, and will continue to happen in regards to expounding upon what comes within the umbrella of protection of the enumerated rights.

There is normally a gap between the original meaning and today's circumstances, which is to say, in the example of the Free Speech Clause, the original meaning does not explicitly specify whether wearing an arm ban to a public school to protest a war is a free speech right. The original meaning serves as the basis for understanding the free speech clause generally, and provides guidance to the justices, however, the justices must make a judgment call as to how the original meaning applies to a set of facts today and a judgment call as to the result, the outcome, just as they would with the 9th Amendment and the rights in the 9th Amendment.

 

[NatMorton]

Of course not. The point is to draw a parallel to your dreaded "political appointees" discovering rights in the 9th Amendment for unenumerated rights and "political appointees" doing the same for a specific enumerated right, the Free Speech Clause. The purpose is to illuminate an inconsistency by highlighting a reality your argument ignores, that political appointees are engaged in the same discovering of rights for enumerated rights, by way of example free speech, as they are for the 9th Amendment.

Again, by way of example, the Free Speech Clause, which is not accompanied with any detailed list of what speech and speech conduct is free speech, results in your dreaded "political appointees" discovering some specific speech conduct is free speech. So, wearing armbands to a public school to protest a war, expressive speech, there wasn't any oracle for the Justices to consult to inform them A.) Expressive speech can qualify as speech under the Free Speech Clause and B.) Wearing arm bands to a public school to protest a war is free speech. Neither was there any parchment they could point to left by the people alive in 1791 enumerating expressive conduct of this kind as speech under the 1st Amendment. This required your dreaded "political appointees" collaborating and deciding this specific expressive speech conduct is free speech under the 1s Amendment, although no such enumeration existed establishing this specific expressive conduct is free speech. Similar to the dreaded "political appointees" discover rights for the unenumerated rights in the 9th Amendment. Which is to say, the exact same phenomenon you despise for the 9th Amendment, political appointees discovering rights under the 9th Amendment, has, is, and will continue to happen in regards to expounding upon what comes within the umbrella of protection of the enumerated rights.

There is normally a gap between the original meaning and today's circumstances, which is to say, in the example of the Free Speech Clause, the original meaning does not explicitly specify whether wearing an arm ban to a public school to protest a war is a free speech right. The original meaning serves as the basis for understanding the free speech clause generally, and provides guidance to the justices, however, the justices must make a judgment call as to how the original meaning applies to a set of facts today and a judgment call as to the result, the outcome, just as they would with the 9th Amendment and the rights in the 9th Amendment.

No one is arguing that judges are bound by a literal interpretation of the Constitution, so your speech example is a straw-man. You seem to be making the argument that determining the intent behind an enumerated right is no different than actually enumerating a new right that was, up to that point, never in the Constitution. That is, IMO, ridiculous. It relies on the unsaid premise that there is a consensus around what is and what is not an unenumerated right -- a consensus that simply does not exist.

And no, my argument does not ignore yours. It recognizes it for what it is: a political tactic masquerading as jurisprudence and to serve as a means of creating new federal law in a manner that bypasses the legislative process. In short, it's judicial activism in search of desired political outcomes.

 

[Rich2018]

No one is arguing that judges are bound by a literal interpretation of the Constitution, so your speech example is a straw-man. You seem to be making the argument that determining the intent behind an enumerated right is no different than actually enumerating a new right that was, up to that point, never in the Constitution. That is, IMO, ridiculous. It relies on the unsaid premise that there is a consensus around what is and what is not an unenumerated right -- a consensus that simply does not exist.

And no, my argument does not ignore yours. It recognizes it for what it is: a political tactic masquerading as jurisprudence and to serve as a means of creating new federal law in a manner that bypasses the legislative process. In short, it's judicial activism in search of desired political outcomes.

Difficult thing is free speech

I think you should only be allowed to state as fact, what can be demonstrated to be so (a quantitative test)

Also, you should be only able to express opinions that are in the public interest (a qualitative test - ultimately requiring a court to decide)
eg: You should be able to say the government's policies are bad, but not that you think all black people are ugly/stupid etc.

 

[NatMorton]

Difficult thing is free speech

I think you should only be allowed to state as fact, what can be demonstrated to be so (a quantitative test)

Also, you should be only able to express opinions that are in the public interest (a qualitative test - ultimately requiring a court to decide)
eg: You should be able to say the government's policies are bad, but not that you think all black people are ugly/stupid etc.

Whom would you empower to be the judge of when speech crosses the line between an opinion that is "in the public interest" and an opinion that is not?

 

[Rich2018]

Whom would you empower to be the judge of when speech crosses the line between an opinion that is "in the public interest" and an opinion that is not?

Actually a judge in a court of law, if a person who's has been the target of said "free speech", has a reasonable cause to be unduly offended, and brings a lawsuit before the court.

 

[NatMorton]

Actually a judge in a court of law, if a person who's has been the target of said "free speech", has a reasonable cause to be unduly offended, and brings a lawsuit before the court.

So judges are to be public censors then? Do you really want Justice Thomas or Justice Kavanaugh deciding what you can and cannot say?

BTW, for those of us who do speak our minds in less than helpful way to the public good, how much time would you have us serve in prison?

 

[Rich2018]

So judges are to be public censors then? Do you really want Justice Thomas or Justice Kavanaugh deciding what you can and cannot say?

BTW, for those of us who do speak our minds in less than helpful way to the public good, how much time would you have us serve in prison?

Absolutely they are. They are to uphold laws that protect the public

And yes, I would rather have the courts, including the Supreme Court, determine what you can and cannot say, than allowing you to say whatever you want (even with the limited restrictions we have currently)

And what things do you think you should be at liberty to say but fear a court might prevent you if the 1st Amendment was re-written ?
Can you give any examples ?

 

[NatMorton]

Absolutely they are. They are to uphold laws that protect the public

And yes, I would rather have the courts, including the Supreme Court, determine what you can and cannot say, than allowing you to say whatever you want (even with the limited restrictions we have currently)

And what things do you think you should be at liberty to say but fear a court might prevent you if the 1st Amendment was re-written ?
Can you give any examples ?

You’re welcome to have Trumps appointees curb you speech as they see fit. I’d rather speak my mind without worrying about prison time.

And I have absolutely no idea what a future court with a neutered first amendment might imprison me for, and that’s exactly the problem.

 

[Rich2018]

You’re welcome to have Trumps appointees curb you speech as they see fit. I’d rather speak my mind without worrying about prison time.

And I have absolutely no idea what a future court with a neutered first amendment might imprison me for, and that’s exactly the problem.

So you can't think of ANY things that you should be at liberty to say but fear a court might prevent you if the 1st Amendment was re-written ?

Then you're basically offering an empty case, as to why such a 1st Amendment re-write shouldn't happen, if you cannot think of a single scenario where a court couldn't JUSTIFYABLY prevent you declaring an opinion publicly.

 

[NatMorton]

So you can't think of ANY things that you should be at liberty to say but fear a court might prevent you if the 1st Amendment was re-written ?

Then you're basically offering an empty case, as to why such a 1st Amendment re-write shouldn't happen, if you cannot think of a single scenario where a court couldn't JUSTIFYABLY prevent you declaring an opinion publicly.

Provided my statement does not directly harm others (e.g. yelling "fire" in a crowed theater, slander, libel, etc.) I cannot think of anything that can be said that is so bad as to warrant giving the government the power to imprison people for saying the "wrong" things. To give government that level of authority is a far more dangerous thing than anything that can be said.

 

[Rich2018]

Provided my statement does not directly harm others (e.g. yelling "fire" in a crowed theater, slander, libel, etc.) I cannot think of anything that can be said that is so bad as to warrant giving the government the power to imprison people for saying the "wrong" things. To give government that level of authority is a far more dangerous thing than anything that can be said.

So if the first Amendment were re-written to reflect that, why would you have an objection ?

Of course you'd have to make allowances for negative political campaigning like Trump saying "I will create jobs, Biden will cost jobs"
That causes harm to Biden and is completely unprovable

Would you agree that you shouldn't be able to say that someone is ugly or that a group of people are "stupid" or "unpatriotic" ?
Like all lesbians are "ugly" or all blacks are "stupid" ?

A person, in say an office or school, can cause quite a lot of mental distress with verbal bullying - would you agree that this should not be protected under the 1st Amendment ?