Thursday, October 3, 2013

the 9th amendment

Here is the wiki on the ninth amendment. Ever heard of the ninth amendment? Here is what it says:

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

Reading the history of the amendment and even just the plain language, what this amendment says, as Madison and Hamilton made clear, is that the list of rights in the first eight amendments is not the whole list of rights.

All the ninth amendment says is there are rights out there that are not in the Bill of Rights.

Makes sense. In 1789, the founders were wise enough to see that in the future the people would need more rights, new rights, that they could not imagine at the time. As the wiki explains, people have tried to apply this idea to various idea, including abortion, but the ninth amendment is not really the basis of any real rights that any one can list.

In other words, the courts have never used the ninth amendment.

Abortion would have been a bad place to use the ninth amendment for the first time and it's good that the court based Roe v. Wade on the established right to privacy. Abortion is an issue between citizens, a controversy, and does not fundamentally depend on technology, at least not completely.

I have a better choice for the first real use of this amendment, number nine, that has been sitting there used by courts since 1789: information. The term "right to information" is in the New York State FOIL (Freedom of Information Law) law and in the Federal FOIA (Freedom of Information Act). Every state has some kind of freedom of information law. These laws have been in place for 40 years without anyone making any effort to reverse course.

All of this means that there is consensus in the population--left and right, rural and urban, state and federal--everywhere, everyone agrees that the public has a right to information about what the government is doing.

If the law exists in every state and at the federal level, why do we need the ninth amendment to make this an inalienable right? Is some state looking to reverse their FOIL system and deny information? Well, yes, at the edges.

Were the right to information to identified as a fundamental right, not something granted by a particular law that could, in theory, be revoked by the legislatures of various states, we would have the following benefits: 1) the ninth amendment would finally get used and in a way that is not a partisan controversy but in a way all parties can agree is in fact a true right; 2) exemptions, such as in New York the legislature exempted THEMSELVES from the law, and that could be challenged, as there is no good reason for it; 3) the weak enforcement regimes in most FOIL systems could be strengthened gradually through court decisions not based on the sometimes squirrely language of these laws, but as a fundamental right.

Everywhere governments SAY "right to information" but they don't really mean a "right" like freedom of speech. They have admitted that it is a right, but then try to get some damn information and see what happens.

If the ninth amendment can not kick in when all the states, all 50, the federal government, and 40 years all agree that information is a right, when can it kick in? Never?

Anyway, we the people are due a new right. Information is perfect. In 1789, no one could have imagined photocopy machines, let alone the internet. They did include rules for POSTING information, as in nailing notice to a post, but we can do better now.

The way to make this happen, making the ninth amendment a real right, would be to FOIL request documents EXCLUDED under New York FOIL (or another state) lose an article 78 prepounding this argument (ninth amendment), lose the appeal to the higher state court, then appeal to the federal court, lose in the first round, and, eight years later, have an outside chance for consideration by the higher level in the federal courts and maybe the supreme court.

Those guys, though, don't want to hear about any rights for the people. Judges could care less. But that should be able to work... just, it's a lot of work. But a right is pretty nice to have. Freedom of speech is a good one.

From James Madison:

It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution. 

From Wikipedia:

Professor Laurence Tribe shares the view that this amendment does not confer substantive rights: "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution." 
 In 2000, Harvard historian Bernard Bailyn gave a speech at the White House on the subject of the Ninth Amendment. He said that the Ninth Amendment refers to "a universe of rights, possessed by the people — latent rights, still to be evoked and enacted into law....a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law." Similarly, journalist Brian Doherty has argued that the Ninth Amendment "specifically roots the Constitution in a natural rights tradition that says we are born with more rights than any constitution could ever list or specify."

No comments:

Post a Comment