Let's get something straight about 'enumerated' vs 'unenumerated' rights

It is my turn to ask, "do you understand the difference?" You are mixing "constitution" and "repeal" and "violation" in a mish-mash which indicates rather obviously that you don't really know what you are talking about. A repeal is no more a violation than the amendment itself. Methinks that you do not know what an amendment is in the first place and if you think a repeal is a violation then you do not know what a constitution is in the second place.

 

Not exactly, no.

What the recent decision shows is that Roe was poorly reasoned, trying to find a right by way of the Due Process Clause. This decision was correct, Roe was poorly reasoned, fatally so.

But the fact remains that the Ninth means what it says and says what it means, very simply. A woman DOES have a right to an abortion. Until some individual is willing to spend money and time getting it to SCOTUS, nothing more will happen, especially with the strong Christian wing presently in place.

 

I never said a "repeal" is a "violation"...lol.

You said:

"The second ammendment can be repealed, so gun ownership CAN BE INFRINGED."

I said it wouldn't be an infringement. Hence, not a violation. With me?

 

You use three arguments here. 1: That the Constitution itself dictates that Americans have Rights. 2: That there are thousands of Rights implied in the Constitution. 3: Just because Roe was around for 50 years it should have stayed.

Lets tackle those.

Nothing in the Constitution talks about Rights of the People, until the BoR's was written. Before the BoR's was written the word "rights" only appears twice in the Constitution. First in Article 1 Section 6. Which only applied to members of Congress. And even then it was only in the title of that section. The second time it only talks about retaining copy rights of scientists, artists, authors, and inventors. And even then it was for a "limited time".

You are correct that several of the Founders did not want to frame the BoR's and the reasons. But you forget that there were also Founders who wanted them. Hence why they were eventually made. Don't get me wrong, there ARE Rights that are not in the Constitution or even implied in the Constitution. Those need to be determined By The People however. Not the Court.

Needless to say, your first two arguments fail.

As for your third... For 60 years, longer than Roe was around, the courts ruled in Plessy that the people had the "Right" to segregate "coloreds" from white people. And many cases upheld Plessy. Should Plessy be restored? Using your argument that "Right" should never have been taken away.

You also mention "millions of women".....there are also millions of women that support restricting abortion.

As for your Alexander Hamilton quote....That is one reason WHY Roe needed to be shot down. It now lets the majority decide what to do in regards to abortion. Rather than the minority of the Court. Its funny...for YEARS Democrats have lambasted SCOTUS every time they shot down a gun law. Saying that the Majority should be the ones to dictate that stuff. Not the courts. Now...when the courts put something up to the majority...they lambast them for doing that.

Now, there is one other argument you made. In regards to implied Rights. Which can be found in the BoR's. Such as the Right to Privacy can be gotten from the 1st, 3rd, 4th, and 5th Amendments when considering all of them. However no where in the BoR's can the "implied right to an abortion" be determined. Roe tried to with the Right to Privacy...however the Right to Privacy does not protect anyone when they kill another human. As such it would not even be able to be considered as a penumbra under that. And there is nothing else in them that could even possibly apply.

 

The problem with unenumerated rights is just what you say happened: what the govt giveth, the govt can taketh away. FTR I agree with your analysis that we have implied rights not listed in the constitution. I also agree with the assessment that you apparently dont even recognize you're making that had we not enumerated some of those rights like 'the Federalists' didn't want to do, those rights would also have been taken away by nothing more than a bad SC decision.

Perhaps we should just try enumerating abortion into the constitution already?Or just be OK with some states democratically doing what other states don't like...

 

If you want to say that until the 2nd. amendment is repealed enacting a law that defies it is ... fill ..... in .... the ... blank and I will agree with you. But that's not what you said.

 

That IS what I said...lol:

"Repealing the Constitution and passing a law that violates an amendment are two different things...lol"

 

This begins well but falls off the logic track. You are correct with the description of the history of writing the Constitution, but miss with your inferences and conclusions. The 9th amendment says the people may have rights that are not listed (enumerated) in the Constitution. It does not say that the people have rights to do anything or everything else. Some non-enumerated rights the people have; some they do not have. The SCOTUS decides what it thinks is a right or not. But it is far from infallible, often wrong, although never in doubt or always has the practical force of law behind it. Penumbra is nothing more than a mental construct of a few guys wearing black robes sitting in the Supreme Court building. It is not innate or inalienable but an expression of how justices might rationalize a right that is not enumerated. It is not true that the Constitution inherently guarantees whatever SCOTUS says it does. However, the practicalities are that we have to live what SCOTUS says, at least until another SCOTUS modifies it.

One court said abortion to some degree is a constitutional right. Another court said that court was wrong and that abortion is not an inherent federal constitutional right. It is as simple as that.

BTW, if we hadn't succumbed to the demands of the states for the Bill of Rights, we not only would not have an American Constitution, we would not have an America.

 

No, the 9th amendment is about unenumerated rights, which means implied rights, though not specifically listed in the constitution, such as the right to privacy.

https://www.law.cornell.edu/constitution-conan/amendment-9

An implied right is a right granted via the SCOTUS under the doctrine of penumbra reasoning.

https://en.wikipedia.org/wiki/Penumbra_(law)

In United States constitutional law, the penumbra includes a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights

Regarding your statement:

It doesn't mean that whatever right you think you have is a right and you're untouchable.

My point never stated an unenumerated right is one 'you think you have', I have stated many times, that unenumerated rights are decided on by SCOTUS when such rights are challenged and/or asserted, and the case rises to the Supreme Court for a ruling on whether or not such right is actually an unenumerated right. One can assume or assert an unenumerated right. However, unless the court has ruled on it, it can be challenged and won't be held until the court upholds it as such. The court can also repeal unenumerated rights once granted, as they did in Dobbs. Abortion, per Dobbs, is no longer an unenumerated right protected by the Us Constitution whereupon it was for over 50 years. State's constitutions are free to do so, if they so desire.

 

lol. No. lol. What you said lol is,

lol. It is not true. lol. Repealing the 2nd. amendment .. lol .. removes the .. lol ... infringement clause. lol. I think you just like to use the word "infringe", along with "basically" and "lol". lol.

 

It was granted via penumbra reasoning, which, by definition, is an unenumerated right.

https://en.wikipedia.org/wiki/Penumbra_(law)

...also note that Justice Douglas' identification of the right to privacy in Griswold ultimately served as a doctrinal stepping-stone to Roe v. Wade, where the United States Supreme Court ruled that the right to privacy protects the right to terminate a pregnancy.[39]

Glenn H. Reynolds has also observed that courts routinely engage in penumbral reasoning, regardless of their location on the political spectrum.[40]

 

As long as the 2nd Amendment is the law of the land, gun ownership can't be infringed.

 

Nothing you claim is written in the 9th Amendment.

The Supreme Court can't grant rights, because the Supreme Court can't make law.

The right to privacy is covered by multiple amendments and it isn't implied. e.g. "The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"

 

lol. You are ... lol ...intentionally ignoring ... lol ...my last reply? lol.

lol. It stings too much, doesn't it. lol.

 

What do you think that "others" is referring to?

""shall not be construed to deny or disparage others retained by the people."

 

However, given that the right to privacy is not specifically mentioned, all your statement does is embolden the penumbra reasoning employed to grant the right of privacy. Your point doesn't negate my argument.

You can make the same argument to any implied right not mentioned in the constitution, but ruled upon by Scotus. It's meaningless assertion.
The fact is the court did so rule on Roe, and that is that.

Roe does not grant anyone the right to murder anyone. A fetus garnered personhood after the third trimester and Roe prohibits termination therefrom.

Roe was derived from penumbra reasoning, and when Scotus rules such, it's a done deal, until they reverse themselves, which they did in Dobbs.

Notably:

“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.” -- Madison, in The Federalist No. 84 (Modern Library ed. 1937).

This reflects Madison's thinking, that just because there is a Bill of Rights, he wanted to make sure that spelling out certain rights doesn't deny others that are implied. The fact that, apparently, that was going to be the case, implied rights being denied, I suspect it gave rise to the 9th amendment which allays Madison's fears.

Unenumerated rights are decided on by SCOTUS when such rights are challenged and/or asserted, and the case rises to the Supreme Court for a ruling on whether or not such right is actually an unenumerated right. One can assume or assert an unenumerated right. However, unless the court has ruled on it, it can be challenged and won't be upheld until the court upholds it as such. The 9th amendment paves the way for Scotus to do it.

 

I think, at the minimum, the right of privacy needs to be enshrined in the bill of rights, because implied rights decided upon therefrom, such as those granted in Roe, are tenuous and they would be less so if the right of privacy were elevated above being implied, to being explicit, given that this court's credibility has been diminished by their disrespecting 50 years of precedent, it's time.

 

Another benefit would be the end of much of the Patriot Act and its offspring, and the end of Obama-style domestic surveillance for political gain.

 

"Others" and "retained" rights are our natural rights. Those natural rights are enumerated in the Bill of Rights.

 

It happens all the time: Here's a link

42 overturns by the Warren Court

Only 20 by the Roberts Court

https://constitution.congress.gov/resources/decisions-overruled/

 

The sudden interest in rights is refreshing. Where was this interest when first and secondment rights were being infringed? Where were they when government was compelling people to consume an inferior pharma product?

 

So, you assert that the 9th Amendment protects a woman's decision to kill her unborn child. Bring a case. Challenge it is court. See how far you get.

What do you suppose the right of the people to decide for themselves will produce, and why does that scare you so much?

 

Let me see if I understand this correctly:
i) "Others" + "retained" rights = natural rights.
ii) Those natural rights are listed in the Bill of Rights
To me that would mean that "Others" + "Retained" = "Listed in the Bill of Rights."

Now I'll plug that understanding into the text:

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

I added [rights] after others for clarity, because I view this as describing different rights than the rights described in the first half of the sentence.

Your thoughts?

 

people decided for themselves under roe. now the patriarchal state government does the deciding.

 

What right or principle is it decided l derived from?