Hacker News Reader

Comment by rquantz | Hacker News Reader

Likewise, just because a right is not enumerated in the Constitution does not mean it is not a constitutional right under the federal constitution.

View on HN

> Likewise, just because a right is not enumerated in the Constitution does not mean it is not a constitutional right under the federal constitution.

Or, to put it in the words of the Constitution itself, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The idea that enumeration of rights would serve as limitations on fundamental rights under the Constitution to those expressly enumerated was a concern with the whole idea of a Bill of Rights that the Ninth Amendment was adopted to resolve.

I tend to cringe whenever someone invokes the 9th amendment, because it's always used to justify "rights" that whoever is invoking it completely made up. All the 9th amendment says is that the Bill of Rights is a non-exhaustive enumeration. Invoking it is appropriate when someone says: "there is no right to X because it's not in the Constitution." However, it does not help you bootstrap a right that isn't found in the common law, case law, or somewhere else.

Any specific instances of 9th Amendment BSery you can think of?

See: http://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_S....

I tend to take a pretty originalist stance on the 9th. All it means that what the founders would have understood to be the "rights of Englishmen" in 1789 are still the "rights of Americans." In turn, those rights were defined by case law, tradition, and long-standing practice.

Thanks. Yeah, there's the whole English Common Law thing as well.

I got to see one of the exemplifications (as they're called) of the Magna Carta -- apparently a number of abbreviated copies were made, the original is lost. In particular it establishes rule of law (rather than arbitrary decree) and due process. Fairly awesome, in the true meaning of the word, to be in its presence.

That's because the meaning of "right" got subverted. The right used to mean "the government can not prohibit you from doing it" - right to free speech, right to bear arms, right to elect and be elected, right to own property, etc. But these "rights" mean something different entirely - when people say "right to minimal salary" - they do not mean the government should not prohibit you from earning minimal salary. They mean that the government should force your employer to pay you certain amount or fire you. When they say "right to education" they do not mean government can not prevent you from studying. They mean the government should take money from other people and pay for your education (that if they do not support enslaving the educators so that their work for free). When they say "right to housing", they do not mean the government should not remove you from your own house - they mean the government should take houses from other people or take money from other people and build houses using this money and then let you live there. Etc., etc.

If you're going to pursue that argument, you'll have to point to construction, gloss, precedent, stare decisis, etc.

You don't just get to make crap up.

Edit: The parallel comment here actually does note that unenumerated rights can and do exist:

https://news.ycombinator.com/item?id=6842667

Just for example, the right to an attorney in a criminal case...that is not enumerated in the Constitution but comes from case law, Gideon v. Wainwright (http://en.wikipedia.org/wiki/Gideon_v._Wainwright), interpreting the 14th Amendment. (Although a Constitutional Right there is additional case law that carves out certain criminal cases where an indigent would not be entitled to an attorney).

Or how about Brown v. Board, you can read the Constitution all day and not find a single thing about the Constitutionality of de jure racial segregation in schools, yet when you read the case law that interprets the 14th Amendment, you will find in Brown 9-0 the Justices held such laws are Unconsitutional and violate the 14th Amendment. Further, it was just a few years earlier SCOTUS held separate but equal did not violate the 14th Amendment. So put less stock into the plain reading of the Constitution and more into the interpretation, which historically has been subject to change.

You're demonstrating my point. Contruction is used to derive a right to representation under the equal protection doctrine of the 14th amendment. Similarly in Brown.

There's a huge amount of Constitutionality (US) which derives from the Commerce Clause: "Congress shall have the power ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes". That's 21 words with a tremendous impact.

Unless I misinterpreted your first comment, I made the opposite point. Someone stated there are Constitutional rights outside those enumerated in the Constitution, you asked for some support, specifically saying "you don't just get to make that crap up." So I gave 2 obvious specific examples of Constitutional Rights not enumerated in the Constitution.

As far as the Commerce Clause that is not a Right but a Power, but again it supports the same point...just because the Constitution does not enumerate a power to the Gov does not mean the Gov does not have that Constitutional Power. The Commerce Clause is a good example, maybe the most obvious is Marbury v. Madison where the SCOTUS gives itself the right to Judicial Review.

There's advocating a right out of thin air, and there's constructing a right out of existing doctrine: the Constitution, statute, court cases, "gloss" (prior court interpretation of all of the above).

See: legal construction:

http://legal-dictionary.thefreedictionary.com/Construction

Gloss is somewhat more ambiguously defined: http://legal-dictionary.thefreedictionary.com/gloss

And I absolutely agree with you on Marbury v. Madison. That established the precedent of the Supreme Court to exercise judicial review and rule on constitutionality, which wasn't itself an enumerated power of the court:

https://en.wikipedia.org/wiki/Marbury_v._Madison

However, neither Construction nor Marbury give the court sui generis powers -- at least not usually, nor without a great deal of discomfit. I seem to recall a case (Learned Hand? Oliver Wendell Holmes?) where some pretty broad leaps were made.

My understanding as not a lawyer, is that there exist constitutional rights that are not listed in the constitution such as the examples will_brown listed. Those examples have court cases now establishing that 'Yes indeed these are constitutional rights', however the cases did not make them constitutional rights.

You seem to be saying that the court cases are required for any right to exist if I follow what you are saying. And that I believe is false.

My apologies if I merely did not follow what you were saying.

Edit: I believe if I am misunderstanding you others might as well so clarification might not be a bad thing.

My understanding as not a lawyer, is that there exist constitutional rights that are not listed in the constitution

I've noted that in an amended edit to one of my ancestor posts above.

I'd still maintain that well-formed rights should be based on precedent and/or law and/or intent. Though situations such as education (equal protection, commerce, copyright?), abortion / right to life (two opposed "rights"), etc., push the boundaries more than a bit.

Can I contact you about another youth in a similarly bad situation? Your profile doesn't have your email ID...

> Contruction is used to derive a right to representation under the equal protection doctrine of the 14th amendment.

Well, no, Gideon found that the right to counsel found in the 6th Amendment was incorporated against the states by the Due Process Clause of the 14th Amendment, not the Equal Protection Clause of the 14th.

But, sure, its a bad example of a right not enumerated in the Constitution, since the right to counsel is a right expressly enumerated in the 6th Amendment (and not, there, expressly limited in applicability to federal cases, though that's the way it had always been applied), and the prohibition on deprivation of due process by the states is again expressly enumerated in the 14th Amendment.

> Well, no, Gideon found that the right...

I'll take your word for it. Jurisprudence isn't my metier.

Some of the Founding Fathers specifically opposed enacting a Bill Of Rights because lack of enumeration might be construed as not being a right, distracting from the main point that the government is not empowered to limit that which, tautologically, it is not empowered to limit. In http://www.constitution.org/fed/federa84.htm Alexander Hamilton contends that a BoR is pointless in that the Constitution strictly delineates the limits of governmental power, and anything not within those limits is by practical definition a Constitutional right insofar as the government has no delegated power to limit it.

So what you are saying is that the bill of rights itself lays out a recipe which tells polticians what to start regulating and limiting to get themselves more power to turn the US into a tyrrany. The excuse is that since it's in the constitution the government can regulate it, even though it it stated otherwise.

What I'm saying is that they Founding Fathers feared the BoR would be construed as being such a recipe when it plainly was not intended that way. Willful abuse of logical fallacies is common, needing only a pretext to build them on. The BoR was intended as an emphasis of what was not allowed, addressing key concerns; alas, the malicious point at it and contend that because it does not include every right to the point of encyclopedic completeness, anything not covered must not have been intended - which is obviously absurd, yet proves persuasive to the easily confused.

Reply on news.ycombinator.com