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Title: Tucker Investigates: What is destroying rural America?
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Published: Dec 4, 2019
Author: Tucker Carlson
Post Date: 2019-12-04 13:22:21 by Anthem
Keywords: None
Views: 69824
Comments: 184
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SCOTUS has held that abortion is a constitutional right.
If their opinons differ from the words of the constitution it is color of law.
They usurped power that is why you can't cite their power in the constitution.
If you want to worship the Supreme court as infallible that is your prerogative.
Sure they rule and their rulings are enforced. Their rulings can put you in jail. But it is still TRUTHFULLY color of law.
#77. To: A K A Stone (#72)
I wanna see that law. Can you cite it? Why not?
Obergefell v. Hodges, 576 U.S. ___ (2008)
Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.
Obergefell at 4:
(3) The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way.
I didn't write it, but it is now the law. You can make believe otherwise.
#78. To: nolu chan (#77)
That isn't a law it is an opinion.
Laws are passed by congress and signed by the president.
Can you cite a law? Because you said it was a law.
#79. To: nolu chan (#77)
I didn't write it, but it is now the law. You can make believe otherwise.
More color of law.
#80. To: A K A Stone (#76)
If their opinons differ from the words of the constitution it is color of law.
Yo8u quite obviously refuse to recognize what "color of law" signifies, despite my quoting it to you from Black's Law Dictionary. Your attempted usage is meaningless.
What SCOTUS is the law. What you say is your opinion and does not displace the opinion of SCOTUS. They are empowered by the Constitution as the final arbiter of federal law, you are not.
#81. To: A K A Stone (#79)
More color of law.
If you do not know what it means, stop trying to use it.
Black's Law Dictionary, 6th Ed.
Color of law. The appearance or semblance, without the substance, of legal right. Misuse of power, possessed by virtue of state law and made possible only because wrongdoer is clother with authority of state, is action taken under "color of state law.” Atkins v. Lanning, D.C.Okl., 415 F.Supp. 186, 188.When used in the context of federal civil rights statutes or criminal law, the term is synonymous with the concept of "state action" under the Fourteenth Amendment, Timson v. Weiner, D.C.Ohio, 395 F.Supp. 1344, 1347; and means pretense of law and includes actions of officers who undertake to perform their official duties, Thompson v. Baker, D.C.Ark., 133 F.Supp. 247; 42 U.S. C.A. § 1983. See Tort (Constitutional tort).
Action taken by private individuals may be "under color of state law” for purposes of 42 U.S.C.A. § 1983 governing deprivation of civil rights when significant state involvement attaches to action. Wagner v. Metropolitan Nashville Airport Authority, C.A.Tenn., 772 F.2d 227, 229.
Acts "under color of any law” of a State include not only acts done by State officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of an official to be done "under color of any law”, the unlawful acts must be done while such official is purporting or pretending to act in the performance of his official duties; that is to say, the unlawful acts must consist in an abuse or misuse of power which is possessed by the official only because he is an official; and the unlawful acts must be of such a nature or character, and be committed under such circumstances, that they would not have occurred but for the fact that the person committing them was an official then and there exercising his official powers outside the bounds of lawful authority. 42 U.S.C.A. § 1983.
https://en.wikipedia.org/wiki/Color_(law)
Color of law refers to an appearance of legal power to act that may operate in violation of law. For example, if a police officer acts with the "color of law" authority to arrest someone, the arrest, if it is made without probable cause, may actually be in violation of law. In other words, just because something is done with the "color of law" does not mean that the action was lawful. When police act outside their lawful authority and violate the civil rights of a citizen, the FBI is tasked with investigating.The US Supreme Court has interpreted the US Constitution to construct laws regulating the actions of the law enforcement community. Under "color of law," it is a crime for one or more persons using power given by a governmental agency (local, state or federal), to deprive or conspire wilfully to deprive another person of any right protected by the Constitution or laws of the United States. Criminal acts under color of law include acts within and beyond the bounds or limits of lawful authority. Off-duty conduct may also be covered if official status is asserted in some manner. Color of law may include public officials and non-governmental employees who are not law enforcement officers such as judges, prosecutors, and private security guards.
"Color of law" is completely irrelevant to this discussion.
#82. To: nolu chan (#77)
I get you chan. Don't take my disagreement as desrespect.
You just quote what the governent currently says the law is. Even when they get it wrong. You quote what will happen to you if you disobey it.
See i'm different.
I'm interested in the truth of what the words actually mean and not some lawyer spin. The Constitution means what it actually says. Even when a usurping supreme court (yes small letters like in the Constitution) says differently. I agree that they have the actual power to do that. It doesn't make it truth though as the actual meaning and intent of the Constitution. Another example would be the interstate commerce clause doesn't mean what the traitors on the Supreme court said it means. You know that. You do know that. Admit it. Please.
#83. To: nolu chan (#81)
Acts "under color of any law” of a State include not only acts done by State officials within the bounds or limits of their lawful authority,
Yep color of law. The Supreme court usurped authority it didn't have. Now we all pretend the Constitution gave them that power. It didn't which is why you can't cite it.
You also can't cite any rights the 9th gives us. Except your pretend abortion argument that you know isn't true.
#84. To: nolu chan (#80)
What SCOTUS is the law. What you say is your opinion and does not displace the opinion of SCOTUS. They are empowered by the Constitution as the final arbiter of federal law, you are not.
What SCOTUS says is not law but opinion. They even call them opinions.
You are correct what I say does not displace opinions (you got it right that time and called them opinions) of the supreme court.
They are not empowered by the Constitution as the final arbiter of federal laws. If I am incorrect please cite me the passage in the constitution that says such. You can't it doesn't say that. Truthfully he Supreme court usurped authority and give themselves that power with no legislation and no constitutional provisions that say such. You can pretend all you want but truth is that it is not in the Constitution anywhere.
You are also correct that I am not the final arbitrator on the matter. But that doesn't mean I am wrong. It means that they are liars or stupid or corrupt. The words in the Constitution mean what they say. Not black robe spin like interstate commerce and abortion murders.
#85. To: All (#84)
Oh and the last comment I forgot to say it was color of law from the little s supreme court.
#86. To: nolu chan (#81)
cts "under color of any law” of a State include not only acts done by State officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of an official to be done "under color of any law”,
You can beat me and shut me up. If you could only prove that the Supreme court is the final arbitrator using the Constitution. You can't do that though. You just ignore that point. You can't do it because those words aren't in there. They aren't Chan and you know it.
#87. To: nolu chan (#60) (Edited)
Cite the statute.
"You shall not murder"
--Exodus 20:13
Not that you or your fellow Log Cabin Pipe Fitters would ever care about any of those statutes.
#88. To: A K A Stone (#86)
If you could only prove that the Supreme court is the final arbitrator using the Constitution. You can't do that though. You just ignore that point. You can't do it because those words aren't in there. They aren't Chan and you know it.
U.S. Constitution, Article III.
Article IIISection 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Section 2.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;—to all cases affecting ambassadors, other public ministers and consuls;—to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;—to controversies between two or more states;—between a state and citizens of another state;—between citizens of different states;—between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
[...]
Who do you think is the final arbiter when interpreting the Constitution? Liberty's Flame? Free Republic? Democratic Underground? dKos?
Cite the authority which empowers anyone but the U.S. Supreme Court. SCOTUS is the only court created by the Constitution.
#89. To: nolu chan, A K A Stone (#88)
you think is the final arbiter when interpreting the Constitution
Natural Law, as illustrated in Romans Chapter 1.
#90. To: Anthem, Socialist Trumpkins, Wealth Spread, *The Two Parties ARE the Same* (#0)
What is destroying rural America?
Socialist Trumpkin Republican, Wealth Spread.
Ron Paul - Lake Jackson Texas Values
#91. To: Peromischievous leucopus (#89)
Natural Law, as illustrated in Romans Chapter 1.
Appeal Roe and Obergefell to the imaginary court of natural law. Enjoy your Big Mike lunch and good luck.
#92. To: nolu chan (#91)
imaginary court of natural law
The CDC provides a plethora of documentation establishing how UN-imaginary the court of Natural Law is.
Got Due Penalty?
Romans Chapter 1. RTFM.
#93. To: Hondo68 (#90)
Misleading photo. There is no such critter as the traditional farmer anymore. They are all owned by Corporations,and ruled by the corporate board.
The traditional "family farm" only exists now as a "hobby farm".
In the entire history of the world,the only nations that had to build walls to keep their own citizens from leaving were those with leftist governments.
#94. To: sneakypete (#93)
There is no such critter as the traditional farmer anymore.
Very true. A farmer either has to go big, specialize, or have a second job "in town".
With one exception...the organic farmer. There are an ever increasing number of organic farmers here in Maine. And I know they are plentiful in upstate NY.
These farmers are making good money on small acreage. Their vegetables and meats are in high demand...and they take food stamps!
There are two organic farms within a mile of my place. One guy has been here for 20 years. The other guy started his farm about 6 years ago. They make big bucks.
A good friend of mine is just starting out. He grew 800 Cornish cross chickens this year and sold every one of them (at around $20 per bird). He grows several organic crops as well.
#95. To: watchman (#94)
I don't doubt that is happening in some areas where the farms are small,but what about the HUGE farms in the mid-west,and some areas of the south. We are talking farms that have thousands of acres of tillable land.
No way are they going to survive from roadside stands.
In the entire history of the world,the only nations that had to build walls to keep their own citizens from leaving were those with leftist governments.
#96. To: sneakypete (#95)
what about the HUGE farms in the mid-west,and some areas of the south.
Those huge farms will be okay. As you mentioned, many of them are owned by corporations.
It's the midsize farms that have my attention. The farmer who supplies my hay was running 300 head of beef cattle until this year. Now he has reduced his herd to maybe 50 head. He told me that he cannot sell a year old calf for $700 and make money. He's heading for the door. I'm hearing this from others, as well.
My hay supplier's calves are the calves that find their way to the feed lots and eventually to the grocery stores, etc. And when he quits farming cattle he'll stop making hay which will affect me.
You don't even want to know what is happening to dairy farms. Suffice it to say, I'm glad just to be in the "hobby farm" category...
Today, grain prices went up 15% from my supplier.
People say, "Why do we need farmers? We can just go to the grocery store and get our food" ;-)
#97. To: Judas Goat (#92)
[nc #91] Appeal Roe and Obergefell to the imaginary court of natural law.[Judas Goat #91] The CDC provides a plethora of documentation establishing how UN-imaginary the court of Natural Law is.
By all means, take your case to the Centers for Disease Control (CDC) and argue God's law in the imaginary CDC Ecclesiastical Court. Good luck and may ooga booga be with you.
Black's Law Dictionary, 6th Ed.
Natural law. This expression, "natural law,” or jus naturale, was largely used in the philosophical speculations of the Roman jurists of the Antonine age, and was intended to denote a system of rules and principles for the guidance of human conduct which, independently of enacted law or of the systems peculiar to any one people, might be discovered by the rational intelligence of man, and would be found to grow out of and conform to his nature, meaning by that word his whole mental, moral, and physical constitution. The point of departure for this conception was the Stoic doctrine of a life ordered "according to nature,” which in its turn rested upon the purely supposititious existence, in primitive times, of a "state of nature;” that is, a condition of society in which men universally were governed solely by a rational and consistent obedience to the needs, impulses, and promptings of their true nature, such nature being as yet undefaced by dishonesty, falsehood, or indulgence of the baser passions. In ethics, it consists in practical universal judgments which man himself elicits. These express necessary and obligatory rules of human conduct which have been established by the author of human nature as essential to the divine purposes in the universe and have been promulgated by God solely through human reason.
Constitutional Law, 6th Ed., Jerome A. Barron and C. Thomas Dienes, Black Letter Series, West Group, 2003, p. 165.
A. THE ORIGINAL CONSTITUTION1. NATURAL RIGHTS
Despite some contrary judicial opinion in the early years of the Republic, the claim that there are extra-constitutional "natural rights" limiting governmental power has generally not been accepted by the courts. If the federal government exercises one of its delegated powers or the states exercise their reserved powers, some express or implied constitutional, statutory, or common law limitation must be found if the government action is to be successfully challenged.
#98. To: nolu chan (#97)
Despite some contrary judicial opinion in the early years of the Republic, the claim that there are extra-constitutional "natural rights" limiting governmental power has generally not been accepted by the courts.
That is because the courts have gone rouge.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Your post shows that originally they knew the truth before asshole liars came to power. Deceivers. Fakers. Murderers.
#99. To: A K A Stone (#98)
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.Your post shows that originally they knew the truth before asshole liars came to power.
Ah, yes. They knew the troof before asshole liars came to power, and they inserted a clause, (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people) ensuring that Natural Law, God's Law, philosophical speculations of the Roman jurists of the Antonine age, was retained by the people.
Not to be mistaken, slaves were considered persons. Before the assholes and liars took over, the Framers found a unique way to refer to slaves while bestowing to representation in Congress based on an enumeration of persons (census) and "adding to the whole number of free persons, including those bound to service for a term of years, and excluding indians not taxed, three fifths of all other persons." Slaves were that "three fifths of all other persons."
And before the asshole liars came to power, the Framers enshrined slaves with the rights of livestock and other property. All men were created equal, but only white people were accorded the right to naturalization. All men and women were equal, but only white, male landowners could vote. In adopting the Law of God into the American legal system, so said the Founders and Framers before the assholes took over.
About seventy-five years later, President Abe Lincoln went on a three-day drunk and passed out in his bed, his bed perhaps being the bed at the Soldier's Home cottage where President Lincoln frequently went to stay, to be joined in his bed by Captain David Derickson, but I digress. A cabinet member awakened Abe from his slumber and gave him the news. Lincoln jumped from his bed startled, and exclaimed, "I freed the who?"
#100. To: watchman (#96)
Today, grain prices went up 15% from my supplier.
WHOLESALE prices?????
Yikes!
In the entire history of the world,the only nations that had to build walls to keep their own citizens from leaving were those with leftist governments.
#101. To: nolu chan (#99)
troof
????
#102. To: nolu chan (#99)
Ah, yes. They knew the troof before asshole liars came to power, and they inserted a clause, (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people) ensuring that Natural Law, God's Law, philosophical speculations of the Roman jurists of the Antonine age, was retained by the people.Not to be mistaken, slaves were considered persons. Before the assholes and liars took over, the Framers found a unique way to refer to slaves while bestowing to representation in Congress based on an enumeration of persons (census) and "adding to the whole number of free persons, including those bound to service for a term of years, and excluding indians not taxed, three fifths of all other persons." Slaves were that "three fifths of all other persons."
And before the asshole liars came to power, the Framers enshrined slaves with the rights of livestock and other property. All men were created equal, but only white people were accorded the right to naturalization. All men and women were equal, but only white, male landowners could vote. In adopting the Law of God into the American legal system, so said the Founders and Framers before the assholes took over.
About seventy-five years later, President Abe Lincoln went on a three-day drunk and passed out in his bed, his bed perhaps being the bed at the Soldier's Home cottage where President Lincoln frequently went to stay, to be joined in his bed by Captain David Derickson, but I digress. A cabinet member awakened Abe from his slumber and gave him the news. Lincoln jumped from his bed startled, and exclaimed, "I freed the who?"
blah blah blah
The 9th amendment is real. It was voted on. It is part of the constitution.
Can you name some of the rights it protects? Or are you going to go off on a strange tangent again?
#103. To: sneakypete (#100)
Yikes!
Your comment prompted me to investigate.
Grain prices went up 15%...but it was specific to this local mill...and specific to dairy grain...go figure.
Not the end of the world yet lol
#104. To: watchman (#103)
Grain prices went up 15%...but it was specific to this local mill...and specific to dairy grain...go figure.
Thanks.
I wonder why? Could it be the bank is trying to force them to sell so they can buy it at a bankruptcy sale?
In the entire history of the world,the only nations that had to build walls to keep their own citizens from leaving were those with leftist governments.
#105. To: sneakypete (#104)
I wonder why?
This mill is a big facility that sells custom blended grain in bulk to farmers.
But I noticed they were making improvements...adding a retail space.
Perhaps they're passing those costs on to me.
Thing is, I can buy Blue Seal Milk Maker at full retail (for 15% cheaper!) at the farm co-op.
To add insult to injury, the mill had to stop selling molasses from their bulk tank (because the FDA inspector decided it was unsanitary). I was only paying $1.80/gallon. The co-op wants $6/gallon for the same molasses!
Between the grain increase and the FDA...well, I'm stunned I tell ya
But that's okay, Pete, we'll just keep on milking!
#106. To: All (#0)
It appears that youtube has disabled the embed. The video is still there. www.youtube.com/watch?v=IdwH066g5lQ
#107. To: Anthem (#106) (Edited)
It embeds fine. You have to wait for the ad to finish playing first. The embed wasn't present when ad was playing.
#108. To: nolu chan (#99)
I appreciate what you've done on this thread. You'd be a fine lawyer in the legal realist tradition (where I also reside).
#109. To: A K A Stone (#78)
That isn't a law it is an opinion.Laws are passed by congress and signed by the president.
Thank you, A K A Stone! Finally, somebody's figured it out.
#110. To: Vicomte13 (#108)
Lets see how real you are. What does interstate commerce mean in the constitution?
Do you pretend like the Supreme court or are you REAL honest?
Will Vic go with color of law or real truth?
#111. To: A K A Stone (#110)
Do you pretend like the Supreme court or are you REAL honest?
Well, let's see how honest you are.
The FAA regulates interstate flights. I'm sure you agree they have that power.
But they also regulate intrastate flights. According to you they don't have that power, correct?
So let's leave it up to the 50 individual states to do that. Hey, a few mid-air collisions are a small price to pay for honoring the "honest" meaning of the Commerce Clause.
#112. To: misterwhite (#111)
The FAA regulates interstate flights. I'm sure you agree they have that power.But they also regulate intrastate flights. According to you they don't have that power, correct?
Never thought about it.
I'm talking about something else.
#113. To: A K A Stone, Vicomte13 (#102)
The 9th amendment is real. It was voted on. It is part of the constitution.Can you name some of the rights it protects?
No. The 9th Amendment states a rule of constitutional construction and does not, in itself, contain a guarantee of any right, or proscription of any infringement.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Can you name the rights protected by the 9th Amendment? Which ones does the 9th Amendment name?
It only protects against construing the constitution’s enumeration of some rights to attack or deny or disparage others because they are not enumerated. As the right to keep and bear arms is enumerated in the 2nd Amendment, the 9th Amendment has no application to it whatever. However, assuming arguendo the the RKBA were not enumerated, the 9th Amendment would not prohibit restrictions or regulations upon the RKBA.
If the RKBA were not enumerated, the 9th Amendment would prevent denying that right on the sole and exclusive basis that it was not enumerated. That is all.
As an historical note, I would observe that James Madison did NOT write the 2nd Amendment. Madison proposed a set of amendments on 8 June 1789. The introduction of the proposed amendments and the associated colloquy on that occasion are in The Annals of Congress I, at pp. 439-68.
Madison’s draft of what led to the 9th Amendment reads:
The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.
The assholes of 1789 put Madison’s wording through the congressional committee sausage making process to create the wording that was ultimately offered and ratified, as quoted above.
The purpose of the 9th Amendment was to gain approval for the Constitution as a whole, and the inclusion of a Bill of Rights in particular. Several of the eleven (11) states in the Union at that time were opposed to the enumeration of any rights, lest the enumerated rights be construed as a denial of those rights not so enumerated. Two states were opposed to the Constitution as it was framed and adopted, and had not joined the new Union.
As an historical note I reference the comments of James Madison and Roger Sherman upon the introduction of the proposed amendments.
[Madison, 8 Jun 1789] It cannot be a secret to the gentlemen in this House, that, notwithstanding the unification of this system of Government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents and patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who at present feel much inclined to join their support to the cause of Federalism, if they were satisfied on this one point. We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution. The acquiescence which our fellow-citizens show under the Government, calls upon us for a like return of moderation. But perhaps there is a stronger motive than this for our going into a consideration of the subject. It is to provide those securities for liberty which are required by a part of the community; I allude in a particular manner to those two States that have not thought fit to throw themselves into the bosom of the Confederacy. It is a desirable thing, on our part as well as theirs that a re-union should take place as soon as possible. I have no doubt it we proceed to take those steps which would be prudent and requisite at this juncture, that in a short time we should see that disposition prevailing in those States which have not come in, that we have seen prevailing in those States which have embraced the constitution.[...]
[Roger Sherman, 8 June 1789] I do not suppose the constitution to be perfect, nor do I imagine if Congress and all the Legislatures on the continent were to revise it, that their united labors would make it perfect. I do not expect any perfection on this side the grave in the works of man; but my opinion is, that we are not at present in circumstances to make it better. It is a wonder that there has been such unanimity in adopting it, considering the ordeal it had to undergo; and the unanimity which prevailed at its formation is equally astonishing; amidst all the members from the twelve States present at the federal convention, there were only three who did not sign the instrument to attest their opinion of its goodness. Of the eleven States who have received it, the majority have ratified it without proposing a single amendment. This circumstance leads me to suppose that we shall not be able to propose any alterations that are likely to be adopted by nine States; and gentlemen know, before the alterations take effect, they must be agreed to by the Legislatures of three-fourths of the States in the Union.
The 9th Amendment was part of a sales pitch and looks like it says more than it does.
I have frequently made disparaging reference to penumbras formed by emanations from various rights. With the 9th Amendment, you stepped squarely into the penumbras and emanations divined by the U.S. Supreme Court in Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U. S. 616, 116 U. S. 630, as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life." * We recently referred
381 U. S. 485
in Mapp v. Ohio, 367 U. S. 643, 367 U. S. 656, to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully an particularly reserved to the people." See Beaney, The Constitutional Right to Privacy, 1962 Sup.Ct.Rev. 212; Griswold, The Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960).
We have had many controversies over these penumbral rights of "privacy and repose." See, e.g., Breard v. Alexandria, 341 U. S. 622, 341 U. S. 626, 341 U. S. 644; Public Utilities Comm'n v. Pollak, 343 U. S. 451; Monroe v. Pape, 365 U. S. 167; Lanza v. New York, 370 U. S. 139; Frank v. Maryland, 359 U. S. 360; Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541. These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.
While nobody can recite a list of rights guaranteed by the 9th Amendment, some may divine that such rights are found within a penumbra emanated by some fundamental constitutional guarantee within the Bill of Rights.
#114. To: nolu chan (#113)
No. The 9th Amendment states a rule of constitutional construction and does not, in itself, contain a guarantee of any right, or proscription of any infringement.
lol how cute. Words don't mean what they say.
#115. To: A K A Stone (#114)
The 9th Amendment states a rule of constitutional construction and does not, in itself, contain a guarantee of any right, or proscription of any infringement.lol how cute. Words don't mean what they say.
Au contraire, the words of the 9th Amendment mean exactly what they say, neither more, nor less.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The subject of that sentence is enumeration. It is the enumeration that shall not be construed as stated.
The text of the Amendment quite clearly states a limit on the manner in which the enumeration of certain rights within the Constitution may be construed.
The Committee of Eleven did not strip out the meaningful portion of Madison’s proposed amendment via some unhappy accident. It was an intentional act that achieved a desired effect. It delayed ratification by more than two years, but the opposition eventually caved.
https://www.constitution.org/9ll/schol/kurt_lash_lost_9th.htm
Volume 83, Number 2, December 2004Articles
The Lost Original Meaning of the Ninth Amendment
Kurt T. Lash*
This Article presents previously missed or unrecognized evidence regarding the original meaning of the Ninth Amendment. Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. James Madison's initial draft of the Ninth Amendment expressly adopted language suggested by the state conventions, and he insisted that the final draft expressed the same rule of construction desired by the states. The altered language of the final draft, however, prompted former Virginia Governor Edmund Randolph to halt his state's efforts to ratify the Bill of Rights due to his concern that the Ninth no longer reflected the demands of the state convention. Antifederalists used Randolph's concerns to delay Virginia's, and thus the country's, ratification of the Bill of Rights for two years. While ratification remained pending in Virginia, Madison delivered a major speech in the House of Representatives explaining that the origin and meaning of the Ninth Amendment in fact were rooted in the proposals of the state conventions and that the Ninth guarded against a "latitude of interpretation" to the injury of the states. Although the Ninth's rule of construction distinguishes it from the Tenth Amendment's declaration of principle, Madison and other legal writers at the time of the Founding viewed the Ninth and Tenth Amendments as twin guardians of our federalist structure of government. Over time, the Tenth Amendment also came to be understood as expressing a federalist rule of construction. The original federalist view of the Ninth Amendment, however, remained constant and was repeated by bench and bar for more than one hundred years.
https://www.washingtontimes.com/news/2016/dec/12/james-madison-and-the-acrobatic-history-of-the-nin/
James Madison and the 'acrobatic history' of the Ninth AmendmentBy Dr. Lynn Uzzell
Washington Times
Monday, December 12, 2016The history of constitutional interpretation is notorious for its occasional contortions of speech and logic. But in the case of the Ninth Amendment, history has been truly acrobatic. Whereas the original purpose of this amendment was to guard against expansions of federal power, its recent interpretations have tended (you guessed it) to expand federal authority.
When the Constitution was first being debated during the Ratification period of 1787-88, many Antifederalists denounced the plan of government because it did not contain any bill of rights. Several Federalists, including James Madison, countered that a bill of rights was not only unnecessary in a constitution of limited powers, it was even “dangerous, because an enumeration which is not complete is not safe.”
The Federalists argued that any enumeration of rights would unavoidably imply powers that had never been granted. For instance, if the Framers were to add a provision declaring that Congress had no power to abridge the right of free speech, that prohibition would imply that Congress would have possessed that power without the prohibition. And the Framers did not wish to imply that Congress possessed any powers except the ones that had been enumerated.
When Madison wrote to Thomas Jefferson about the prospects of adding a bill of rights, he confessed: “My own opinion has always been in favor of a bill of rights, provided it be so framed as not to imply powers not meant to be included in the enumeration.”
And when proposing a bill of rights to the First Congress, Madison acknowledged that this fear — “that those rights which were not singled out” would be insecure by implication — was “one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system.” But he assured Congress that his proposal for what would eventually become the Ninth Amendment should prevent any such misinterpretation of the Constitution.
Therefore, the Ninth Amendment (like the 10th Amendment) was always intended to be nothing more than a rule of construction: a guide for understanding how the Constitution was meant to be interpreted.
Madison’s initial proposal for the Ninth Amendment makes these intentions clear: “The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution” (emphasis added).
However, Congress streamlined Madison’s wording by removing the clauses about the enlargement of federal powers.
Virginia delegate Edmund Randolph was incensed when saw the revised version, believing that Congress had removed the most important part of the amendment. Virginia’s objections to the final wording of the Ninth Amendment actually delayed that state’s ratification of all the amendments for two years, which delayed ratification of the entire Bill of Rights.
Madison was flummoxed trying to understand the basis of Virginia’s objections, because he believed that the protection of individual rights and the protection against expansions of federal powers were merely two sides of the same coin: “the distinction,” insofar as Madison could see it, was “altogether fanciful.”
Alas, among Madison’s most charming blind spots was this one: He earnestly believed that Americans could always be trusted to interpret the Constitution in accordance with its intended meaning.
Madison’s faith was proved disastrously misplaced with recent interpretations of the Ninth Amendment. In Griswold v. Connecticut (1965), Justice Arthur Goldberg wrote that “the right of privacy in the marital relation is fundamental and basic — a personal right ‘retained by the people’ within the meaning of the Ninth Amendment.” In other words, the Ninth Amendment was being used to grant the Court an authority to decide which rights (unnamed within the Bill of Rights) now deserved protection by the federal government. It was being used as an expansion of federal authority over state laws.
In his dissent, Justice Potter Stewart criticized the Court’s interpretation of this amendment: “to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history.” Nevertheless, the Court’s reasoning in Griswold has turned somersaults in “privacy cases” ever since, including Roe v. Wade (1973). It has been a truly acrobatic history.
• Lynn Uzzell, Ph.D., is a member of the James Madison Society at Princeton University and an adjunct professor of politics at the University of Virginia. She is currently working on an authoritative and impartial appraisal of Madison’s Notes of the Constitutional Convention.
https://www.archives.gov/files/legislative/resources/bill-of-rights/CCBR_IIB.pdf
A Project of the National Archives
Go Inside the First Congress
Amendments in Process
House Article the Fifteenth
Rights Retained by the People
At 148: Ideas Proposed in the State Ratifying Conventions
There are certain natural rights of which men, when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.Virginia Convention, June 27, 1789
That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and Right, which is not by the said Constitution clearly delegated to the Congress of the United States, or to the departments of the Government thereof, remains to the People of the several States or to their respective State Governments to whom they may have granted the same….
New York Convention, July 26, 1788
At 149: As Proposed by James Madison
James Madison proposed that the following language be inserted into Article I, Section 9, of the Constitution between Clauses 3 and 4:The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.
June 8, 1789
This proposed amendment stated the principle that listing certain rights did not define the total body of rights possessed by the people. Additional rights of equal importance could be unlisted. nor did that listing mean that government could expand its powers.
At 150: As Proposed by the House Committee
Article I, Section 9—Between Clauses 2 and 3 insert:The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
July 28, 1789
The committee of eleven shortened Madison’s proposal and focused it on rights alone.
At 151: As passed by the House of Representatives
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others, retained by the people.August 24, 1789
The house passed this amendment essentially as proposed by the select committee.
At 152: As Approved or Amended by the Senate
The enumeration in the constitution of certain rights, shall not be construed to deny or disparage others, retained by the people.September 7, 1789
The senate adopted this amendment as passed by the house.
The next step occurs after more than a two year delay.
At 153: As Reported by the Conference Committee
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.December 15, 1791
Passed by both bodies, the amendment was not discussed in the conference committee.
At 154: As sent to the States for Ratification
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.October 2, 1789
The amendment was sent to the states for ratification in this form.
At 155:
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.October 2, 1789
The amendment was sent to the states for ratification in this form.
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Hamilton, Federalist 78, “The interpretation of the laws is the proper and peculiar province of the courts.”
SCOTUS, Marbury v. Madison, “It is emphatically the province and duty of the judicial department to say what the law is.”
Randy Barnett, Our Republican Constitution, 1st Ed., Broadside Books, 2016, p. 172, “Then two more amendments were added to ensure the powers of the federal government were limited. The Ninth Amendment was supposed to ensure that the eight amendments protecting rights would not be construed as exclusive.”
Laurence Tribe, American Constitutional Law, 2nd Ed., The Foundation Press Inc., 1988, pp. 774-75, “James Madison introduced the ninth amendment in specific response to the arguments of Hamilton and others that enactment of a Bill of Rights might dangerously suggest “that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.” The ninth amendment, which provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” therefore at least states a rule of construction pointing away from the reverse incorporation view that only the interests secured by the Bill of Rights are encompassed within the fourteenth amendment, and at most provides a positive source of law for fundamental but unmentioned rights.”
https://pacificlegal.org/whats-the-deal-with-the-9th-amendment/
Consequently, Madison’s original draft of the 9th Amendment read: “The exceptions, here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”Unfortunately, a select committee removed the key portion of the proposed amendment—which would have prohibited the power of the federal government from being enlarged through interpretation—before the amendment was enacted. Thus, the entire purpose of the amendment (and its future applicability) was rendered moot.
The 9th Amendment was intended to provide a mode of interpretation for the Constitution, guaranteeing that federal courts would have been expressly forbidden from creating new governmental powers through clever interpretation. Given how much trouble varying interpretations of the Constitution have caused throughout American history, it’s a shame this principle was not explicitly included. A lot of subsequent and continuing constitutional mischief could have been avoided.
https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1850&context=facpub
Texas Law Review Volume 85, Number 1, November 2006The Ninth Amendment: It Means What It Says
Randy E. BarnettThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
—U.S. CONST., amend. IXAlthough the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication.
U.S. Supreme Court in Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
And from the Legal Information Institute (LII) at Cornell University:
https://www.law.cornell.edu/constitution-conan/amendment-9
UNENUMERATED RIGHTSNINTH AMENDMENT
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
RIGHTS RETAINED BY THE PEOPLE
The Federalists contended that a bill of rights was unnecessary. They responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that, inasmuch as it would be impossible to list all rights, it would be dangerous to list some and thereby lend support to the argument that government was unrestrained as to those rights not listed.1 Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. “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.”2 It is clear from its text and from Madison’s statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.3 In 1965, however, the Amendment was construed to be positive affirmation of the existence of rights which are not enumerated but which are nonetheless protected by other provisions.
The Ninth Amendment had been mentioned infrequently in decisions of the Supreme Court4 until it became the subject of some exegesis by several of the Justices in Griswold v. Connecticut.5 The Court in that case voided a statute prohibiting use of contraceptives as an infringement of the right of marital privacy. Justice Douglas, writing for the Court, asserted that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”6 Thus, although privacy is not mentioned in the Constitution, it is one of the values served and protected by the First Amendment through its protection of associational rights, and by the Third, the Fourth, and the Fifth Amendments as well. The Justice recurred to the text of the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference. Justice Goldberg, concurring, devoted several pages to the Amendment.
“The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment. . . . Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.”7
Therefore, although neither Douglas’ nor Goldberg’s opinion sought to make the Ninth Amendment a substantive source of constitutional guarantees, both read it as indicating a function of the courts to interpose a veto over legislative and executive efforts to abridge other fundamental rights. Both opinions seemed to concur that the fundamental right claimed and upheld was derivative of several express rights and, in this case, really, the Ninth Amendment added almost nothing to the argument. But, if there is a claim of a fundamental right that cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from abridgment?8
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Footnotes
1 THE FEDERALIST No. 84 (Modern Library ed. 1937).
2 1 ANNALS OF CONGRESS 439 (1789). Earlier, Madison had written to Jefferson: “My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. . . . I have not viewed it in an important light—1. because I conceive that in a certain degree . . . the rights in question are reserved by the manner in which the federal powers are granted. 2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.” 5 WRITINGS OF JAMES MADISON, 271–72 (G. Hunt ed., 1904). See also 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1898 (1833).
3 To some extent, the Ninth and Tenth Amendments overlap with respect to the question of unenumerated powers, one of the two concerns expressed by Madison, more clearly in his letter to Jefferson but also in his introductory speech.
4 In United Public Workers v. Mitchell, 330 U.S. 75, 94–95 (1947), upholding the Hatch Act, the Court said: “We accept appellant’s contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments [is] involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. Thus we have a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant under the First, Ninth, and Tenth Amendments.” See Ashwander v. TVA, 297 U.S. 288, 300–11 (1936), and Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 143–44 (1939). See also Justice Chase’s opinion in Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798), and Justice Miller for the Court in Loan Ass’n v. Topeka, 87 U.S. (20 Wall.) 655, 662–63 (1875).
5 381 U.S. 479 (1965).
6 381 U.S. at 484. The opinion was joined by Chief Justice Warren and by Justices Clark, Goldberg, and Brennan.
7 381 U.S. at 488, 491, 492. Chief Justice Warren and Justice Brennan joined this opinion. Justices Harlan and White concurred, id. at 499, 502, without alluding to the Ninth Amendment, but instead basing their conclusions on substantive due process, finding that the state statute “violates basic values implicit in the concept of ordered liberty” (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)). Id. at 500. It appears that the source of the fundamental rights to which Justices Douglas and Goldberg referred must be found in a concept of substantive due process, despite the former’s express rejection of this ground. Id. at 481–82. Justices Black and Stewart dissented. Justice Black viewed the Ninth Amendment ground as essentially a variation of the due process argument under which Justices claimed the right to void legislation as irrational, unreasonable, or offensive, without finding any violation of an express constitutional provision.
8 As Justice Scalia observed, “the [Ninth Amendment’s] refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.” Troxel v. Granville, 530 U.S. 57, 91 (2000) (dissenting from recognition of due-process-derived parental right to direct the upbringing of their children). Notice the recurrence to the Ninth Amendment as a “constitutional ‘saving clause’” in Chief Justice Burger’s plurality opinion in Richmond Newspapers v. Virginia, 448 U.S. 555, 579–80 & n.15 (1980). Scholarly efforts to establish the clause as a substantive protection of rights include J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 34–41 (1980); and C. BLACK, DECISION ACCORDING TO LAW (1981), critically reviewed in W. Van Alstyne, Slouching Toward Bethlehem with the Ninth Amendment, 91 YALE L. J. 207 (1981). For a collection of articles on the Ninth Amendment, see THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT (Randy E. Barnett ed., 1989).
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