Any chance you can weigh in the protections of unenumerated rights guaranteed by the 9th Amendment. One of the big arguments, and fears, of those opposed to creating a Bill of Rights was the concern that not every right protected by the Constitution could be enumerated in one document. Madison included the 9th Amendment to address that concern.
Isn't it possible for citizens, including LGBT Americans whose rights are also being trampled, to base a claim that personal privacy and bodily autonomy are clearly among the rights covered by the 9th?
More generally, the current majority rejects the notion of unenumerated rights in general, not just bodily autonomy for women. The preservation of an intellectual and social order that may (or may not) have existed 250 years ago is an agenda, not a judicial philosophy.
I didn't see your comment as I was busy raising the same issue, Richard. The protection of unenumerated rights is one that deserves raising, especially as this court rampages through fields of long-standing precedents.
Supreme Court doctrine based on the Ninth is poorly developed.
Griswold v. Connecticut (1965): In this case, the Court ruled that a Connecticut law prohibiting the use of contraceptives violated the right to marital privacy. The Court mentioned the Ninth Amendment as evidence that the Constitution protects certain unenumerated rights, such as the right to privacy. This is now in the crosshairs.
Roe v. Wade (1973): In this landmark case, the Court held that a woman's right to choose to have an abortion was protected under the right to privacy, which the Court determined was guaranteed by the Fourteenth Amendment's Due Process Clause. The Court cited the Ninth Amendment to support the idea that the Constitution protects unenumerated rights. Thrown out as wrongly decided.
Richmond Newspapers, Inc. v. Virginia (1980): In this case, the Court held that the right to attend criminal trials was implicitly protected by the First Amendment. In a concurring opinion, Justice Burger cited the Ninth Amendment to support the idea that certain fundamental rights, even if not explicitly listed in the Constitution, are still protected. A concurring option is weak tea.
The text: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." A true originalist interpretation is that when We the People threw off George III as sovereign we acceded to the fullest possible realization of all the power of the state and the only limits we need accept are those to which we expressly consent pursuant to the Constitution and the laws duly enacted that are consistent with it. Therefore, any legislation in support of the retained right in common of personal bodily autonomy ought be subject only to rational basis review and every law in derogation of that retained right ought be subject to strict scrutiny in all cases.
The right to interstate travel is another unenumerated right. This one will be difficult to deal with under any notion of rights reserved to the states without upsetting a big applecart. But to protect the Theocracy of Idaho, I wouldn't put it past the Gang of Six.
The right to travel is fundamental and includes the right to travel freely between states. It is protected under the Privileges and Immunities Clause of Article IV and the Privileges or Immunities Clause of the 14th Amendment (Saenz v. Roe, 1999).
States cannot discriminate against citizens of other states or interfere with their right to enter and leave the state (Crandall v. Nevada, 1868).
Laws or actions that burden or penalize travel between states may violate the right, unless they pass strict scrutiny - proving a compelling government interest pursued via the least restrictive means (Shapiro v. Thompson, 1969).
Components include the right to cross state borders, the right to be treated as a welcome visitor to a state, and, for those who become permanent residents, the right to be treated like other citizens of that state (Saenz v. Roe, 1999).
The Privileges or Immunities Clause prohibits states from discriminating against new residents in the distribution of welfare benefits (Saenz v. Roe, 1999).
Any chance you can weigh in the protections of unenumerated rights guaranteed by the 9th Amendment. One of the big arguments, and fears, of those opposed to creating a Bill of Rights was the concern that not every right protected by the Constitution could be enumerated in one document. Madison included the 9th Amendment to address that concern.
Isn't it possible for citizens, including LGBT Americans whose rights are also being trampled, to base a claim that personal privacy and bodily autonomy are clearly among the rights covered by the 9th?
That issue is a significant part of the reason I'm addressing Dobbs. So I'll definitely address it, probably tomorrow.
Great. I look forward to reading it. Thanks.
More generally, the current majority rejects the notion of unenumerated rights in general, not just bodily autonomy for women. The preservation of an intellectual and social order that may (or may not) have existed 250 years ago is an agenda, not a judicial philosophy.
That's a good point. I'll speak to that issue, too, probably tomorrow. .
I didn't see your comment as I was busy raising the same issue, Richard. The protection of unenumerated rights is one that deserves raising, especially as this court rampages through fields of long-standing precedents.
Supreme Court doctrine based on the Ninth is poorly developed.
Griswold v. Connecticut (1965): In this case, the Court ruled that a Connecticut law prohibiting the use of contraceptives violated the right to marital privacy. The Court mentioned the Ninth Amendment as evidence that the Constitution protects certain unenumerated rights, such as the right to privacy. This is now in the crosshairs.
Roe v. Wade (1973): In this landmark case, the Court held that a woman's right to choose to have an abortion was protected under the right to privacy, which the Court determined was guaranteed by the Fourteenth Amendment's Due Process Clause. The Court cited the Ninth Amendment to support the idea that the Constitution protects unenumerated rights. Thrown out as wrongly decided.
Richmond Newspapers, Inc. v. Virginia (1980): In this case, the Court held that the right to attend criminal trials was implicitly protected by the First Amendment. In a concurring opinion, Justice Burger cited the Ninth Amendment to support the idea that certain fundamental rights, even if not explicitly listed in the Constitution, are still protected. A concurring option is weak tea.
The text: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." A true originalist interpretation is that when We the People threw off George III as sovereign we acceded to the fullest possible realization of all the power of the state and the only limits we need accept are those to which we expressly consent pursuant to the Constitution and the laws duly enacted that are consistent with it. Therefore, any legislation in support of the retained right in common of personal bodily autonomy ought be subject only to rational basis review and every law in derogation of that retained right ought be subject to strict scrutiny in all cases.
The right to interstate travel is another unenumerated right. This one will be difficult to deal with under any notion of rights reserved to the states without upsetting a big applecart. But to protect the Theocracy of Idaho, I wouldn't put it past the Gang of Six.
The right to travel is fundamental and includes the right to travel freely between states. It is protected under the Privileges and Immunities Clause of Article IV and the Privileges or Immunities Clause of the 14th Amendment (Saenz v. Roe, 1999).
States cannot discriminate against citizens of other states or interfere with their right to enter and leave the state (Crandall v. Nevada, 1868).
Laws or actions that burden or penalize travel between states may violate the right, unless they pass strict scrutiny - proving a compelling government interest pursued via the least restrictive means (Shapiro v. Thompson, 1969).
Components include the right to cross state borders, the right to be treated as a welcome visitor to a state, and, for those who become permanent residents, the right to be treated like other citizens of that state (Saenz v. Roe, 1999).
The Privileges or Immunities Clause prohibits states from discriminating against new residents in the distribution of welfare benefits (Saenz v. Roe, 1999).