Given the lengths gone to in the Constitution to make mob rule virtually impossible, I find it hard to believe that the 9th amendment could have in any way been intended to enable a national plebicite which would be the essence of the kind of mob rule which the founders abhored.

Dave

Let's not forget the Declaration of Independence.

"A national plebicite...would be the essence of the kind of mob rule which the founders abhorred..."

Is contradicted by:

"whenever any form of government becomes destructive... it is the right of the people to... abolish it..."

I agree with both you (Dave and MBD) that a plebicite could lead to many troubles. There has been some excellent speculative fiction written about it but current reality is a long way from that scenario.

On the other hand, listening to actual congressmen today - stating exactly what I'd written last night - that "congress failed completely in fulfilling its role as a CHECK on the Executive Branch" it brings us back to the question:

What RIGHTS do we have in this area and where, if they do exist would they be found.

A plebicite certainly wouldn't be found in the Ninth. Such a thing is a mechanism - possibly a good one, historically NOT a good thing...

But the right to know, ya know? When you have branches of the government that are NOT fulfilling their duties, it isn't enough to simply say, "well, vote them out of office - TWO years from now!"

And let's please try to keep this above the standard rancor boys and girls. I've stated repeatedly I am NEITHER a Rep or a Dem and I only list myself as 'I' because I have to in elections. The Bush administration provides a wonderful example for all this but really it could be ANY PARTY controlling the Executive and whipping the Legislative into a lock step. Rampant ideology of ANY sort is disturbing... The political correctness of the ultra-ULTRA liberals on my college campuses springs immediately to mind!

P. Marlowe

This is an interesting article.

It is my opinion, as one who had to study American constitutional law for a time and who has always been interested in the concepts of constitutional as opposed to common law rights, that the ninth amendment to the federal constitution of 1788 is essentially designed to allow for the common law rights of Englishmen to operate uninterrupted in the (then new) federation that the federal constitution attempted to design.

In my own opinion, plebiscites were not what the founders wanted - especially considering that Napoleon I and Napoleon III both used them to rubberstamp the proto-fascist states they established. Referenda, on the other hand...

Stan Denham, the Australian newspaperman ("mild mannered reporter for a great metropolitan newspaper?") who comments here under the name STM might have some intelligent observations here.

Stan?

Ruvy...

Well, let me clarify this again... I DO NOT think the Ninth, in ANY WAY could lead to a plebicite - essentially because that is a MECHANISM of A FORM of democracy.

However, if a clearly defined and reasonably uncontested RIGHT TO KNOW were to be established out of the Ninth... I could see how, in combination with current and emerging technology a TYPE OF PLEBICITE could emerge... More than likely on its own. No doubt as some element of the MEDIA at first - a SUPER POLL...

Hope that clears it up a little bit...

P. Marlowe

"A national plebicite...would be the essence of the kind of mob rule which the founders abhorred..."

Is contradicted by:

"whenever any form of government becomes destructive... it is the right of the people to... abolish it..."

Hardly, MBD. A national plebicite on specific issues and abolishing the government and replacing it with another are two entirely different ideas.

Establishing a national plebicite would certainly be establishing a different form of government. It would make the executive and legislative branches largely obsolete.

But it would also be a violation of the Constitution and it's very unlikely that it would be an improvement over the current system. In fact, it would be a very dangerous and easily manipulated and abused system which would almost certainly lead to oppression.

Dave

But the right to know, ya know? When you have branches of the government that are NOT fulfilling their duties, it isn't enough to simply say, "well, vote them out of office - TWO years from now!"

I think I have to question this basic premise of your article. As far as I can tell the three branches of government ARE fulfilling their duties, they just aren't doing it to the satisfaction of everyone. They're pandering to certain constituencies and ignoring others. They go where the money and the votes are, so they represent the NEA and the AARP and business interests, and not so much the rest of us.

To change that we need to play in the same league as the other influential interest groups. Those of us who want more responsive and better run government are certainly as numerous as the constituents of the NEA, so we should organize and pool our resources and get the government to pay attention.

Dave

Ah yes, the Ninth amendment. In my view also the most interesting, as it requires a bit of head-scratching. Yes Ruve, I think you are dead right. It opens the door within the constitution for the old system of common law to continue to exist in the US as another safeguard against both the power of government or the abuse of power and the misreading of the constitution by those who might believe it should be the only defining law of the US. Well, that's how it reads to me, anyhow. It's almost: "If we've forgotten any rights and haven't written them down in the first eight amendments, but they exist, then of course they shall continue to exist." And more to the point, they can continue to be made provided the rights of the people under law are the main consideration.

It's also a bit of a way out for the government, as it really doesn't stop the government from extending any of its powers. It does, however, extend a whole plethora of rights granted under centuries of written and unwritten common law in England to the people of the new Republic, and sets them down neatly in a single sentence. It's also a neat little window of opportunity for the continuing evolution of the common law, as it pertains particularly to America, and as an adjunct to the Constitution. Very canny, those founding fathers. No wonder King George was beside himself.

Marlow

Please bare with me.

Would such a vote be taken by the populous or the elected officials?

What does the right to know have to do with a plebiscite taking place? I missed the connection. Why must it move us in that direction? Doesn't the system in place allow for public opinion or are you arguing against the rhetrospective vote?

Zedd!

No problem with bearing with you...

It's a complex issue (though not complicated). And I had a choice of writing a LOT which no one would read, a LITTLE which would be pointless or something in between...

I think we're heading for some form of plebicite regardless of the issue of a "right" to know. We're more than half way there with instant polling on a million websites, texting your opinion, etc, etc.

The point I was making is that if a right to know were "discovered" in the Ninth - brought about possibly by lawsuits or Congress revamping the FIA, or a combination of the two... If it comes about because of some Constitutional crisis which we seem to be hovering near right now...

This "right" would lead to some interesting developments. If we do have a right to know IN A TIMELY fashion the truth of certain national issues that directly effect America's safety, our standing in the world, or going to war or not... HOW then would this "right" be excercised?

We have plenty of examples in the past where a "right" is presumed to exist, and yet it is ignored by the powers-that-be because there was no MECHANISM for its enforcement, or even perhaps for bringing it into being...

The XIV Amendement comes to mind as the most obvious example.

So, if this more POTENT right to know is discovered... How will we, as a People excercise it?

Say we have a Legislative branch that isn't performing its function as a check to the Executive. The country teeters close to a war, the impetus for which is based on some "facts" that have been presented to one and all that done really hold up to closer inspection...

Can a citizen or a group, using this right to know discovered in the Ninth use some nascent form of a plebicite to focus the will of the People on the government - bypassing an ineffectual Congress?

Can that happen? Will we move to this? And what are the pros and cons (we know some of those cons - Plato certainly witnessed it).

THAT is what I was trying to get to...

Hope that helps a little.

P. Marlowe

Marlow,

The ninth amendment is designed to prevent the expending of government. Its not designed to lessen the power of government. By utilizing plebiscite, the government would then be circumvented and its power reduced if not nullified at least in as far as that consideration. That would indeed be mob rule.

The ninth doesn't speak of an ineffective government but on over powerful government. The picture that you painted (the one that exists to a degree) is that of an ineffective, over politicized leadership. It is we the people who are responsible for learning more about issues so that we put the right people into power

1. to value and introduced balanced ideas
2. who are honest and unaffected by lobbies
3. Who are not too political and more intent on their political survival than doing what is good for the nation (even over the party)
4. who are intelligent and not just clever

That is our referendum. The fact that we have been wowed by the spin and have become divided to the point of complete blindness is not the governments fault. It is ours.

The right to know in a timely fashion is available if we keep up with current events. I knew that there were no WMDs because I paid attention. The UN was on the ground in Iraq and told us that there were none and that they needed time to probe further but didn't think there would be any. I KNEW. Another would not know because they believed Rush, lets say, and thought the UN was incompetent and that we didn't need them and we somehow knew more than the entire world (spin). The individual chose not TO KNOW. That individual didn't see the dramatic and over exaggerated anti-UN build up in Bush I's administration and understand it to be a paving of sorts for some future attempt.

The one recent example that I would have when we didn't KNOW and still don't is when Chaney and the heads of the energy corporations met in the White house and declared it a closed meeting, not allowing congress to KNOW what took place. Congress attempted to find out and was still shut out.

Perhaps in that case a referendum of sorts should have been argued for and taken place but it would have been a mess. We did however voice our opinion about the Congress that was in place at that time and they are gone. But we still don't KNOW.

Marlowe

I realize that I didnt respond to your questions. They are fun by the way.

The first part of my response basically says it couldn't happen. The right to know exists in the form of congressional records. We know that they are fudged around with but the votes do declare what has taken place. Off course there is a lot of play that takes place and the votes are pre-engineered but the record is there. We can also witness the debate.

Again the issue of the Executive Branch is problematic if the Congress is devoted to the President. However, the plebiscite would still be unlawful because in would circumvent the power of the government. We wouldn't know but the structure would be in place.

If we were to jump to the plebiscite there would have to be an organizing force to make that happen. Again you say in essence that the media has been weakened. There is sever polarization among the populous. A large percent of the public has turned into drones. The organizers would not get off the ground. They would be accused of playing to some interest. Their personal lives would be examined and any smattering of impropriety on their part would be a strike against the move (unless they wrote a book before hand confessing their sins a la Obama:).

If it was successful and we made the government perform our will, would it not be addicting?

What limitations would we have for calling for a national referendum?

Who would decide that the government should be put to rest on an issue?

It would be a mess. However I don't see that happening because of the intent of the 9th Amendment. Its not to limit but to prevent an excess.

Looks to me like the system is finally working. Today we saw Bush show some spine and promise to veto the Dems porkified military funding bill. That's checks and balancess, by god.

I realize that some of the ignorant here think that what weLve been needing is a check on presidential power, but the truth is that because they were also republicans Bush let the congress run out of control for 6 years. Now that they are dems he's finally willing to shut them down as he should have years ago.

Lumpy

Good point.

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

A lot of interesting thoughts here, but nothing as interesting as the few lines above. Guys, read that ... and go back and read some of the court decisions on the 9th amendment. See what it really says ... actually, James Madison's ideas would be a good starting point. All the smart money over the years says it exists simply to explain that the rights set down in the first eight amendments to the Constitution may not be the only rights afforded to the people - and that any that exist under common law or might be ruled upon (most likely by an independent judiciary) in the future to exist under common law but are not set down in the constitition may still be valid. It thus also doesn't limit the power of government, provided the people's fundamental rights are not infringed :)

It just doesn't include any option for referenda or plebiscite. And in my view the referendum or plebiscite is actually undemocratic, because it is populist. As many people here have said, good government is not about caving in to mob rule ... but there's a fine line here - because it IS about listening to the concerns of the people, who ARE the government and who therefore can make their views felt on certain issues and can reasonably expect the government to act upon those views if they are deemed to be in the nation's best interest.

Yet that's also not really an issue dealt with in the amendment, no matter how much you try to read between the lines.

My humble opinion, as a citizen of a country that not that long ago was part of the evil empire from which the founding fathers sought to rid themselves: the 9th Amendment is what makes a good document great - because it is about retaining all the old common law rights of all Americans, and all the new ones, in addition to those enumerated in the Constitution.

People... Please READ this since I've stated it numerous times already... The POST nor I any any additional comments have stated that the Ninth Amendment has ANYWHERE IN IT the POSSIBILITY of A PLEBISCITE!

I SAID, also repeatedly, that WITH THE RIGHT TO KNOW, if it exists IN THE NINTH, WERE IT to be DISCOVERED - that it might - MIGHT - in SOME WAY play a ROLE IN BRINGING ABOUT SOME TYPE OF PLEBISCITE SYSTEM in a FRUSTRATED CITIZENRY. I never said the PLEBISCITE has, or would have or EVEN COULD HAVE been found in the Ninth.

I DID SAY that this PLEBISCITE might play some ROLE as an mechanism to allow this right to function... HOW is anyone's guess. I stated this BECAUSE WE ARE QUICKLY moving toward some FORM of PLEBISCITE already with the thousands of polls, of texting your opinion on this, that or the other...

I hope this has finally become clear...

P. Marlowe

Geeeeeez! I WAS enjoying this thread.

Zedd... You can enjoy.. But it must be more enjoyable if we're actually discussing what was actually stated... Right from the get-go most everyone has glommed onto the word NINTH and PLEBESCITE and thought I was saying that the latter was to be found in the former - which couldn't be further from the truth and if left un-corrected would completely negate the whole subject - which I feel is important...

So enjoy... but let's once and for all be clear on what I DID and DID NOT say...

P. Marlowe...

Go now.. Enjoy... Belly up to the bar... Have one on me...

Go...

Marlwe

We are not done with this thread. You are asking some interesting questions. Its a fun mental exercise. Its the most fun thread that I have read in a long time.

However it is incumbent upon you to play Socrates. We will answer a chunk and then move to the next level.

If you keep the questions simple and pointed, I will happily answer. I enjoy rhetoric discussions immensely.

Now let me have another look at the ninth amendment and see if I can come up with a comment for you.

Marlowe

I meant to say, let me look at the FOIA....

Now, lets start here. These all seem isolated but work with me.

-In simple first grader language, how do YOU interpret "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."


-It sends a real chill down my back thinking that had this view, held actually by the majority, prevailed, we would have never seen the Bill of Rights. Why does it scare me? Beyond the obvious reasons history has provided?

I fear that many who consider themselves to be Libertarians still feel this way about a lot of actions (laws) that are put in place to ensure the rights of the individual.

- For my amusement, do you think that in order for one to experience liberty that specific rights must be in place or that their general pursuit of happiness without breaking laws should not be compromised?

ZEDD!

Ok... Well, lets see if this helps our discussion...


>>Now, lets start here. These all seem isolated but work with me.

-In simple first grader language, how do YOU interpret "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."<<

On the face of it it means JUST this. I can't boil it down further. The INTERPRETATION of it... Well, there's the rub, right? The reason the Ninth WAS forgotten - more like ignored, looked askance at, occasionally fretted over - was and is because lawyers don't KNOW where rights come from as I stated in the original post.

In MY mind what this says it that the Founding Fathers too were a little leery over HOW to describe HOW these rights can be "discovered".

I interpret this in a way I doubt most would. I come at it from a Platonic angle. From the concept of "Platonic" natural law (though Plato never quite called it this, but then Plato also insisted - and I believe this to be true - that he never developed a philosophical 'school' either). I believe that this Platonic concept of natural law is and can be the mechanism that can help identify and clarify natural rights.

>>-It sends a real chill down my back thinking that had this view, held actually by the majority, prevailed, we would have never seen the Bill of Rights. Why does it scare me? Beyond the obvious reasons history has provided?

I fear that many who consider themselves to be Libertarians still feel this way about a lot of actions (laws) that are put in place to ensure the rights of the individual. <<

I am no Libertarian. I belong to no partisan political party. I feel that they are a boil on the buttock of America.

I said this because, as I stated in that post, there was an odd dichotomy during the development of the Constitution and Bill of Rights. The greatest hue and cry against the Bill of Rights was the fear of enumeration - that any rights not stated would immediately be assumed to reside with the Federal government. At the SAME TIME it was also stated by so many that enumerating the rights was just silly because RIGHTS were SO OBVIOUS TO EVERYONE. Everyone knows what "these" rights are - they are BLATANTLY obvious to everyone.

This was stated over and over. HAD THIS ASSUMPTION prevailed... THIS makes me shudder. NO Bill of Rights.

Does it not strike you as odd in the extreme? The Ninth scares the crap out of judges, lawyers, lawgivers because THEY ADMIT they DON'T know WHAT RIGHTS may or may not be in the Ninth and have NO IDEA how to REACH them.... And yet so many there at the beginning were absolutely CERTAIN that EVERYONE could recognize a right...

I leave you with this - Plato's "Athenian" in THE LAWS is explaining how "slick" men beguile and confuse the people and depend on this confusion - and that they would deny "rights" have any basis in reality whatsoever. These men, the Athenian says will insist that:

ATHENIAN: ... While as for right, there is absolutely no such thing as a real and natural right that mankind are eternally disputing about rights and altering them and that every change thus made, once made, is from that moment valid, though it owes its being to artifice and legislation not to anything you could call nature. All these views, my friends, come from men who impress the young as wise... who profess that indefeasible right means whatever a man can carry with the high hand. [Laws, Bk X, 889-890]

M

On the comment about Libertarians, I was agreeing with YOU gobber. I wasn't say that YOU were a Libertarian. I was saying that Libertarians often want to leave things unspecified because in my opinion they believe that EVERYONE knows better.

GOOBER!! Love the word. Use it all the time! Sorry I didn't read that part carefully... I hadn't even sipped my first cup-a yet...

M

I'm going to continue first grade style :o) in order to make things move along.

By natural rights, I read it (in the simplest way) to mean the right to "be" or not "be". The right to function as a human being.

Should the right to "potty" be expressed by law? Most would argue "NO".

The crux is, where do those "types" of rights end?

I guess the question then is does law create liberty or does law curtail abuse.

If the role of the law is to prevent others from infringing on others liberty then....

Should the right to walk for those who can be defined by law, NO but the right to enter certain places is limited. Should the right to pursue relationships with fellow human beings be limited by law. Most would say "YES". Stalker laws are put in place. The right to privacy is in place based on the 1st, 3rd, 4th, 5th, and 9th amendments, and is supported by the 14th amendment. It is said that it is the 9th which identifies the right to privacy explicitly. Therefore the right to pursue is a natural right but should be limited by law. Pursuit engenders knowledge. The pursuit of knowledge is then a natural right, yet it must be limited in order to prevent a clash with other's rights to privacy (e.g. the restrictions within the FOIA).

Just thinking out loud. I hope you are following me.

I'll continue later.

I like that Zedd, 'the pursuit of knowledge is then a natural right'..never really thought of it that way.

"The right to function as a human being."

Ahh Zedd... Spoken like a true Platonist!

"I guess the question then is does law create liberty or does law curtail abuse"

Law, according to Plato, is STATIC. It is - at its best - Justice frozen in time. This is why Plato said no constitution can ever be complete. Since a law can be abusive I think we can see what Plato was saying here. The ATTRIBUTE of JUSTICE (or Platonic Form) is what INFORMS the best of lawgivers and thus law.

"It is said that it is the 9th which identifies the right to privacy explicitly."

Actually I'd need to see the reference here. Certainly it was used in Griswold and later on Roe later on to suggest this, and Douglas' "penumbra" of rights (in the Roe decision) includes the Ninth as a key element. But I've never seen anyone anywhere suggest that the right to privacy was "explicitly" found in the Ninth... But then I've not read everything on it so if I'm wrong please show me!

More later... I'm trying to get over the emotional let down of the Oregon Ducks losing to Florida...

P. Marlowe

Zedd, if you actually believe what you're saying in #25 and continue to follow that thought process through to its ultimate conclusions, you're going to have to reexamine a LOT of your current beliefs as expressed here on BC.

Dave

Dave

What is the logical conclusion.

Marlowe

sed:Law, according to Plato, is STATIC. It is - at its best - Justice frozen in time. This is why Plato said no constitution can ever be complete. Since a law can be abusive I think we can see what Plato was saying here. The ATTRIBUTE of JUSTICE (or Platonic Form) is what INFORMS the best of lawgivers and thus law.

You beat me to the punch!

The 9th amendment is really an instruction on how to read the constitution - and how to use the constitition in law. Nothing more, nothing less. It carries with it a rider about implied rights, ie: those that are not written into the constitition. One of the main reasons it was included was to make sure that any rights in existence or to be ruled on in the future that were not enumerated in the constitution could or would exist outside those listed in the first eight amendments.

Part of the reason it was included was because some of the founding fathers felt that in the future, some people would read the constitition and deny people rights that had existed at common law because they were now not written down in the constitution. It's a safeguard of ALL your rights, including those traditonally regarded as natural rights (freedom of religion, for instance).

I'll take up Zedd's potty theme as a hypothetical example. If I'm arrested by the police in New York because I swore while speaking to a police officer, but a number of previous court rulings have decided that New York police officers are used to hearing the F word and indeed even use it amongst themselves and therefore it's not likely to offend, I could theoretically wage my defence against that charge on that basis if other similar charges have been dismissed on that basis also.

To convict me thus might be regarded as unconstitutional under the 9th amendment (and one other I can think of). ie., just because my decision to swear as part of the accepted and commonly used language of New York is not enumerated in the constitution, it doesn't mean that it doesn't exist as a right. This is an extreme example, and notice I use the word might, because as you know nothing's set in stone. But yes, Zedd, it could mean that under law, the right to have a potty mouth becomes an established right in certain situations. It would also include any rights tenents might have in their dealings with landlords, which don't fall within the bounds of those enumerated in the first eight amendments. The amendment pertains mainly to rights under common law that existed under the common law of England and then America prior to Independence but does include rights that might be seen as natural ones (which is how common law works, anyway). It's worth everyone reading up on this issue, particularly in relation to high court and supreme judgements.

It is not a complicated piece of legislation, rather a rider on how the constitition is to be interpreted. The right to know doesn't or hasn't existed as a finite entity, at common law, or even as a natural right, except in certain circumstances under FOI legislation, therefore it won't be covered by this amendment.

When and if the right to know is established in law, or becomes regarded as a natural right, only then will it be covered by the 9th. But it's worth adding that greater legal minds than yours or mine have been stumped by this in the past.

PS, I have consulted a friend who is a former US lawyer now practising law in Australia about this ... he believes many people read too much into the ninth amendment when they don't need to, because it actually says everything it needs to in its written form. There is no reading between the lines, according to him. It should also be the favoured amendment of libertarians like Dave Nalle and Al Barger, he says :)

STM... You know... In all my readings on the Constitution and on the Ninth I've never heard anyone describe it as "an instruction on how to read the constitution". Nor as this: " rather a rider on how the constitition is to be interpreted."

Can you list the publications where you read this? I'd love to see if I can pick up copies!

P. Marlowe

STM

I wasn't speaking of using profanity. I meant literally using the restroom.

I see your point on what your friend suggest the ninth means, that was my initial thought, however it does not set any boundaries and therefore leaves room for any form of interpretation. The extent to which it can be taken (which is what I believe Marlowe was saying) can actually be problematic.

On the Libertarian thing. I totally agree.

I think, because of the debate that was in place during that time, the vague nature of this amendment is a compromise. It gave enough to each camp to think that they had gotten what they were asking for or to see how their interests could be argued for in the future because of its openness.

STM

I meant to say, using the lavatory.

IMO some people are trying too hard and to do too much with what is a very important, but ultimately very simple amendment.

Dave

Marlowe: There have been a number of court judgements stating this to be the case, perhaps not exactly in the way I have said, but certainly that is pretty much how it was framed. I can't give them to you without spending hours right now looking through books or trawling on the web, but I will make it a mission.

However, one could arrive at the same conclusion anyway by a process of logic - please read exactly what I write:

The ninth amendment was added to the constitition because the founding fathers believed that in the future, the constitition might be misread. They believed that some people might feel that because certain rights didn't exist in a codified written form within the first eight amendments to the constitution, it could later be interpreted at law that they did not exist.

So the 9th amendment was added to this almost as as a caveat, and as a warning that the constitution should not be misinterpreted. It implicitly acknowledges that Americans had other rights either natural or at common law before independence, and would continue to do so in the future. It is, therefore, an implied instruction on how the constitition should be read - or more specifically, NOT misread. Indeed, James Madison includes such things as the rights of conscience in his thinking, believing that they could not be properly enumerated in the written form because of the latitude that might be required to cover them in detail. I suppose they saw the whole thing also in terms of an exercise in logistics.

And Zedd, it is certainly not a compromise. It might even be the most important piece of writing in the constitition in terms of the rights of American citizens, as it covers those rights - possibly many, many thousands of them, now set down in common law or now accepted as natural rights, that are not mentioned in the first eight amendments. It was a stroke of genius by Madison and the founding fathers.

It is, as Dave, says, a really simple piece of all-encompassing legislation guaranteeing ALL your right.

And if you want to know why I'm so interested in it as a non-American, it's because I have an interest in the common law constitition of Britain and how that spun off to all its offspring - including the US - and how the different paths taken by each led to much the same place in each case.

The issue isn't the "simplicity" of the Ninth... It is in the process of discovery of unenumerated rights that has always been the issue. There are very few USSC cases that even mention the Ninth and only 5 that rely on it specifically - all since 1947 and either in an"ends constraint" mode or "means constraint" mode...


STM...

>>It is, therefore, an implied instruction on how the constitition should be read - or more specifically, NOT misread<<

I can certainly see what you're driving at here... The Ninth can be seen as a beacon to government, in essence allowing the Constitution to be that "living document" that Scalia rails insists it isn't...

I just want to take a moment and say I certainly am enjoying everyone's input and POVs!

P. Marlowe

If it's not a living document, then it's doing a great impression of a corpse breathing deeply.

And the 9th amendment is its lungs!!

Dave

You may be right. If there is a right that has not yet been dealt with legally, perhaps the ninth is the place to go. So maybe they are not really overcomplicating but abusing it?

Just a thought.

Jumping back in here, I'd like to ask how exactly we might use the Ninth Amendment to newly enumerate previously unenumerated rights. It's not entirely clear, Marlowe, how you envision such a process could work.

The clearest way to enumerate "new" rights is to enact new amendments to the Constitution. (Of course these aren't really new at all, but only newly recognized as rights that stand in need of explicit protection.) It took us several of these to recognize the right to vote exists just as much in black women who are 18 years old as it does in white males who are 21 or older.

Congress can also protect previously unprotected rights by making laws, as it did in 1965 to recognize the right to vote exists even in people who cannot pass literacy tests. This protection is easier to enact than an amendment, but also easier to overturn if a later Congress has different opinions about rights.

Somewhere in between these, the Supreme Court can make decisions that change the protection of rights, as it has done many times.

The procedures are quite clear in these pathways for extending the protection of natural human rights. What I'm not clear on is how the Ninth Amendment pathway would work. Would one simply cite the Ninth Amendment as a rationale while using one of the previously mentioned pathways? Or are you proposing some new pathway for recognizing the existence of a right?

And finally, is the plebiscite idea the new pathway being proposed here, or did it come up for some other reason?

I have other questions, but this comment has gone on long enough already, so I'll wait to bring those up.

Mr. VP!

Excellent question/post. Sorry it took so long to get back to you but work/family intruded...

I think that your lay-out of how "rights" have typically emerged would no doubt be the way that the a newer, more robust "right" to know would likely emerge. And yes I do think that advocates of it would "go to the well" of the Ninth to give it a legitimacy that mere legislation (possibly of-the-moment as you state) might not be able to lend it.

As for the plebiscite... Again, I see this as A POSSIBLE societal evolution SHOULD such a right be discovered via the Ninth.

If we not only have the right to know BUT the right to know IN A TIMELY FASHION when the government - esp., the Executive Branch which can act much more quickly than the other two is about to take an action that can have a profound effect on not just the U.S. but the world... If we have this right - HOW would it be excercised?

We see that the FOI act is too slow. It can be too easily stymied.

So IF we have this more ROBUST right, HOW can we excercise it in this timely fashion?

I suggested that it MIGHT come about through this (initially unoffical, extra-governmental) plebiscite.

Thanks again so much for the post!

P. Marlowe

Marlowe,

I thought you'd abandoned the thread.

I find it interesting that this administration has invoked Executive Order 13233 to limit access to presidential records. It is also interesting that the staff of this administration in particular uses external e-mail accounts to communicate white house related dialogue. This is in clear violation of the Presidential Records Act. Some (like Rove) utilize their RNC e-mail accounts to by pass the WH e-mail system. Other workers have gone to the extent of using their personal Blackberries to dodge the official documentation of their conversations.

While the Presidential Records Act doesn't guarantee the right to know NOW, it does insure our right to know. If it is being subverted, what actions should occur place in response?

Zedd;
Don't tell me Karl Rove would ever break the law. Dodge the draft...yes. Slime John McCain's patriotism...yes. But nothing illegal...would he?

Zedd! Someone needs to contest Executive Order 13233 in court. I believe there IS a right to know here. We have GOT to move away from the ultra-right wing's attempts to create this "super-presidency" which is nothing more than (laughably) a benign despot.

If you are an elected official what you do while in office IS open to complete review. Save for national security WHICH would need to be determined by a committee everything else should be up for review.

IN THIS argument there should be need to plant this right to know on firmer ground and there we might see reference to the Ninth...

Sorry if I worried you Zedd... It was a crazy week! We probably need to have another article along these lines... Hmmmm...

P. Marlowe