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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, October 24, 2011

Ninth Amendment: Specifics

I have spent some time discussing the Ninth Amendment, referencing some cases and broad principles, but what rights in particular are covered?

First, there are those protected by state law that the federal government has no power to invade for one reason or the other. California protects the right to petition in private shopping malls, something now deemed not protected by the First Amendment, even though has the flavor of a traditional public business area where that sort of behavior (handing out pamphlets and the like) was done. This "retained right" (one that applies only in California in this case) should not be invaded by the federal government merely because the First Amendment does not reach that far.

This same result can arise in a more negative fashion. California decriminalized medicinal marijuana in various ways.  There might not be a "right" as such -- which would be stronger -- but by allowing it, people at least have the "right" not to be arrested or otherwise penalized by state officials for being involved.  If the feds had no power over this activity, again, merely because the rights enumerated were found not to include use of medicinal marijuana would not take this "right" away from residents of the state.  If California (like Alaska did in the 1970s regarding small time private possession) did recognize it as a right, the case would be stronger, though a clear case of a federal power might trump it.  Such concerns can be handled politically, including by prosecutorial discretion. 

Second, there are various rights that are protected across the board, even if individual states wish it to be otherwise. The various cases cited suggest various examples, including use and purchase of contraceptives, choices respecting childbirth (no "one child" policy here) and child raising, matters of intimate association including sexual activities of various types, the right to travel, marriage, a basic right to "liberty" from confinement without good cause (remember, the Bill of Rights lists various safeguards in criminal cases; what if a law allowed the detaining of those with mild ailments? if applied evenly and fairly, procedural due process could be met) and to make various daily choices regarding dress (see, e.g., Justice Powell's concurrence here as to hair length), diet and so forth.  One listing:
See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958) (right of association); Griswold v. Connecticut, 381 U.S. 479 (1965), and Stanley v. Georgia, 394 U.S. 557 (1969) (right to privacy); Estelle v. Williams, 425 U.S. 501, 503 (1976), and Taylor v. Kentucky, 436 U.S. 478, 483-486 (1978) (presumption of innocence); In re Winship, 397 U.S. 358 (1970) (standard of proof beyond a reasonable doubt); United States v. Guest, 383 U.S. 745, 757-759 (1966), and Shapiro v. Thompson, 394 U.S. 618, 630 (1969) (right to interstate travel).
Again, see also Justice Douglas' concurrence in Doe v. Bolton (inspired by a memo written by Justice Brennan, who was interested in the Ninth Amendment but relied on substantive due process in his own opinions, as told by Liberty and Sexuality by David Garrow), which summarizes things nicely.  Again, these rights are protected in various ways, including by more strict review of them in respect to equal protection. This is how the fundamental right to vote -- which to me is basic to a republican form of government so would be a "Ninth Amendment" right (other basic rights aren't given to everyone for various reasons either -- young minors, for instance, cannot marry) -- is generally protected (raising but not relying on First Amendment argument).  An early recognition:

Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights.

I was reading about the formation of the First Amendment. One mostly forgotten member of Congress noted that he wasn't really concerned with specific wording as such, but with the basic idea behind the freedoms related to religion at issue.  As seen in this case from the 1880s, this quite American sense of pragmatic flexibility makes sense.  Either way, this old discussion by me of "natural law" is germane.  And, that ends my Ninth Amendment discussion for the moment.  I think!