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Comment by saalweachter | Hacker News Reader

The Ninth Amendment, my friend:

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

When the Supreme Court "creates" new rights, they are acting under the aegis of the Ninth Amendment, and simply recognizing a right that is retained by the people. For all fundamental rights to be explicitly enumerated in the Constitution is something that the Founders explicitly knew they could not do.

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And yet, the end of slavery and enactment of women's suffrage were both strengthened by amendments, rather than supreme court decisions (which is why I included those in my list). So I think that my question still stands. Why would an amendment be necessary to force a right that should've been held by the people already in one case, but not another?

SATSQ: A Constitutional amendment is necessary to establish a right when the Courts do not recognize that right.

An Amendment is also useful to avoid a right being lost in future rulings, or to raise the bar on what is considered a compelling reason to abridge that right. Remember, DOMA was overturned not just because the Courts recognized freedom to marry as a right, but because the Federal government was unable to offer a compelling reason why it was in the public interest to remove that right from same-sex couples.

Consequently, a Constitutional amendment may well have been necessary to end slavery, because even if the Courts were willing to recognize both slaves as citizens deserving of rights and "not being a slave" as an unenumerated right in 1865 (hint: they weren't), the Courts almost certainly would have been willing to hear arguments that slavery was in the public interest, even if it was an abridgement of the rights of slaves. They are certainly willing to allow de facto slavery of non-citizens and of prison inmates to continue.

In any case, demanding that we refuse to recognize a right until it is enumerated in the Constitution or its Amendments, when the Constitution itself both declares the existence of unenumerated rights and demands they be recognized is just fucking asinine.

Where do you get off calling my question stupid? Condescending asshole.

To be clear: I don't have a problem with your answer itself, but the tone in both of your replies to my honest questions hasn't been helpful. You need to work on your presentation, or you're going to turn more potentially interesting information into something of shit value.

Right, which is why given there is no enumerated power clause giving them one the federal government has no power to regulate marriage.

The problem is, the states legalized gay marriage at the state level, and DOMA which is invalid under the 9th amendment and powers clause caused a problem.

They should have struck down DOMA and let the states have their choice, as they do under the 9th amendment.

The courts actually did both.

When Section 3 of DOMA (the portion prohibiting the Federal government from recognizing same sex marriages) was overturned, it was partially on a Tenth Amendment argument.

It was in overturning Section 2 of DOMA (the portion allowing States not to recognize same sex marriages performed in other States) that the Supreme Court recognized marriage rights as something which could not be restricted on the basis of the sex of the participants.

I am not certain you could construct an argument that would allow the Supreme Court to overturn Section 2 of DOMA without also declaring all State laws unconstitutional; once the Supreme Court recognized that right, the 14th Amendment applies.

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