Southern Appeal - "With a rebel yell, they cried more, more, more!"
"For example, consider the right of parents to raise their children as they see fit. As to this and other unenumerated, individual rights, the state is prohibited from unduly interfering with them (beyond the extent permitted at the time the Ninth Amendment was ratified)."
Feddie, question: At the time that the Ninth Amendment was ratified, thr iright of raising children as one saw fit included very little protection for those children from what we would now consider abuse. Does your view invalidate a state's right to interfere with these family issues if the modern interference does not jibe with what was accepted at the time of ratification?
Very interesting post. I wonder how your view of the rights protected by the 9th, however, squares with the careful and limited incorporation of the common law by the states. That is to say, if all citizens have, as a matter of federal constitutional law, the rights protected at common law at 1791, then wouldn't any subsequent state law that abolished (or even modified) a common law rule conferring some private right or benefit be unconstitutional?
unhyphenatedconservative-
Even at common law, there were limits to parental rights. For example, while corporal punishment was permitted, it had to be reasonable (i.e., not excessive).
John-
You ask:
"If all citizens have, as a matter of federal constitutional law, the rights protected at common law at 1791, then wouldn't any subsequent state law that abolished (or even modified) a common law rule conferring some private right or benefit be unconstitutional?"
Short answer: yes.
I think any view that makes the Ninth Amendment out to say exactly the same thing as the Tenth Amendment is pretty hard to defend, just following the standard rules of statutory construction.
So if I understand properly, your view wold have that the right to non-interfreence in parenting would stay unchanged, subject to the restriction against excessiveness. But would the standard of excessiveness change with the times? And if so, how would this not mutate into the current state of death penalty jurisprudence in which "evolving standards of behavior" can swallow up what the Constitution clearly contemplates?
Katherine-
Finally, we agree on something!
but I don't really buy your view, I hasten to add. The common law had changed; why assume the founders thought it should stop changing? Why would they trust unelected judges from England and not unelected judges from America? For that matter why do you? How do you deal with the possibility that a right has not been recognized at common law simply because England didn't try to violate it? And how do you draw the line between what part of the common law is fixed, fundamental and unchanging and what part can change over time?
The contract law stuff is easy enough to get around: the Constitution is meant to restrain the government, not private citizens. But as to the rest...
It seems to me, they are saying: just because we enumerate certain rights does not mean that people don't have other fundamental rights. But they're not really saying where those rights come from. They're not saying, as Goldberg posits in Griswold, "so judges, do whatever the hell you want!" And I don't think they're saying "exactly what the common law says RIGHT NOW, not one bit more or less, but we're not going to say exactly what it says right now." I think you have to remember: it was pretty common, back then, for people to believe in the common law as a function of natural law.
But we don't believe in that anymore. We've replaced Swift with Erie. We're all legal realists to a certain extent (when it comes to our ideological opponents if not ourselves). Those of us who believe in natural law (I do btw, I think the human rights movement is the true exponent of natural law theory today only they'll not admit it because they wrongly believe it requires a belief in God) are still completely skeptical about an individual judge's ability to discern it from on high. So "because I say its a fundamental right" is insufficient. The Ninth Amendment provides that there MAY be unenumerated or not-specifically-enumerated rights, but it doesn't empower you to just start creating them. You've got to base it on the text of the Constitution itself, your precedents, and established historical or scientific facts.
The basic argument is: "we can't actually protected enumerated right X without also protecting unenumerated right Y."
You could say then, that Y is an emanation or penumbra of X. But the decisions I have in mind where the courts do this properly are NOT Griswold, which I think is correct in its outcome but very poorly argued, or Roe, which I think is wrong; but the first Amendment decisions--the overbreadth and vagueness doctrines, the right to receive information, etc. etc.
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