Reality vs Culture

[MicroBalrog]

So, under your line of argument, if a certain right is not protected by Amendments 1-8, and the constitution of a given state allows it to infringe upon it, then the citizens should have no resort against the state they reside in?

It seems to me that this allows a very wide amount of things.

[Headless Thompson Gunner]

Their resort is to amend their state constitution, or correct their faulty local government though any other prescribed means.  Residents of a state are responsible for that state's governance.

And you're right, this does allow a great many things.  The most important thing it allows is constitutional self governance.  This is a feature, not a bug.  

I think your "concern" is that this system doesn't allow you to use the Feds to impose your preferred brand of anarcho-libertarianism on states that don't want it.

[MicroBalrog]

Wouldn't anarchism be entirely incompatible with the Constitution? :D

[Headless Thompson Gunner]

Perzactly.

[MicroBalrog]

Perzactly.

I don't think you understand. I've never advocated that the 9th Amendment mandates anarchocapitalism. :D

[Headless Thompson Gunner]

I have no idea what you've advocated or not advocated regarding the 9th.  Not beyond what you've said here, anyways.

[MicroBalrog]

I have no idea what you've advocated or not advocated regarding the 9th.  Not beyond what you've said here, anyways.

That (in essence) the rights listed in the Bill of Rights are not sufficient (though necessary) for a free society. While of course we cannot genuinely expect or advocate the Supreme Court to protect every individual right, it is reasonable for the court to step in and protect certain liberties under the 9th. Which ones, I do not know, but that is what the system is for. I would of course prefer that as much rights are secured as possible, but obviously that's not how the system works.

Obviously we're going to end up with the Court securing a certain degree of rights between "the state governments can do whatever they want" and "lol enforced libertarianism". I don't see how this is tyrannical.

[Headless Thompson Gunner]

Fair enough.  I agree that the listed rights aren't sufficient.  The best way to enforce the 9th, to protect rights not listed, is to restrict FedGov to only performing actions it is specifically empowered to perform. 

Ruling on abortion isn't something they're empowered to do.  That they did so anyway is a usurpation.

[Perd Hapley]

While of course we cannot genuinely expect or advocate the Supreme Court to protect every individual right, it is reasonable for the court to step in and protect certain liberties under the 9th.

Wouldn't this allow anyone to claim that any right is protected by the Ninth, and allow the Supremes to pick and choose what our rights are, subject only to their own opinions, independent of any law? 

[MicroBalrog]

Wouldn't this allow anyone to claim that any right is protected by the Ninth, and allow the Supremes to pick and choose what our rights are, subject only to their own opinions, independent of any law? 

I really fail to see how this is a major problem.

Here's why.

Suppose Texas banned ear piercing. A random Texas citizen appeals.

The Supreme Court rules that the 9th Amendment does not protect, say, the right to pierce your ears.

This doesn't make the plaintiff any worse off, and it still doesn't prohibit the other 49 states from, you know, just not banning the process in the first place.

[For the record, I think abortion should be left to the states, for reasons that may differ from yours].

[Perd Hapley]

It doesn't bother you that your reading of the Ninth gives nine men unlimited latitude to pass judgment based only on their own whims? 

[MicroBalrog]

It doesn't bother you that your reading of the Ninth gives nine men unlimited latitude to pass judgment based only on their own whims? 

No.

For obvious reasons.

[Perd Hapley]

Obvious reasons? 

[Headless Thompson Gunner]

Lookout!  He's got a shotgun!

 

[MicroBalrog]

Obvious reasons? 

Yes. The Constitution and the American tradition impose certain limits as to how unconstructive a given branch of government could be.

The Supreme Court cannot really run amok and make too many rulings outside of what is acceptable to the American people, because if they did, the other branches of government would be quick to put them back in line, or simply re-pass a new version of the laws they just threw out. This isn't some kind of fantasy, this is something that the US government has done in the pass.

This is, of course, a 'for better or worse' thing - this is what allowed FDR to go through with his agenda, for example.

[Perd Hapley]

Sigh.  No.  Judicial rulings by fiat, entirely uncoupled from any legal guidance, are simply unacceptable.  History is not our only guide, professor.  

Or maybe you have found a new guide; you sound a lot like George W. Bush, justifying his signature on McCain-Feingold.  

[MicroBalrog]

Sigh.  No.  Judicial rulings by fiat, entirely uncoupled from any legal guidance, are simply unacceptable.  History is not our only guide, professor.  

And yet we have legal guidance. We call it the common law, and it has been the guide of judges since before Madison set pen to paper. It works.

[roo_ster]

Their resort is to amend their state constitution, or correct their faulty local government though any other prescribed means.  Residents of a state are responsible for that state's governance.

And you're right, this does allow a great many things.  The most important thing it allows is constitutional self governance.  This is a feature, not a bug.  

Yep, "Federalism." 

I think your "concern" is that this system doesn't allow you to use the Feds to impose your preferred brand of anarcho-libertarianism on states that don't want it.

Maybe not MB, but many, many libertarians are of this mindset.

Fair enough.  I agree that the listed rights aren't sufficient.  The best way to enforce the 9th, to protect rights not listed, is to restrict FedGov to only performing actions it is specifically empowered to perform. 

I would have a slight quibble.  Power only respects greater power.  The best way to check fed.gov is state.govs with real power vis a vis fed.gov.

[Perd Hapley]

And yet we have legal guidance. We call it the common law, and it has been the guide of judges since before Madison set pen to paper. It works. 

OK, George.