I was just thinking that it's really hypocritical of people to say that negative freedoms is a flawed concept. The founding fathers of the United States government- a government that I know quite a few people on this website think is illegitimate, believed that not all of the freedoms of individuals could be listed in the U.S. constiuttion.
The ninth amendment provides us with all of the freedom that the other amendments do not, and, it is why we're one of the more freer nations in the world. As you well know the constitution was proposed by the federalists, and, it expanded government power. It was thought that people needed their rights protected. The bill of rights was a concession from the federalists to the anti-federalists, and, I believe the 9th amendment provides guarantees on all of our basic rights and liberties.
Doesn't the fact that the ninth amendment has held up time and time again in our courts system prove that negative freedoms work? People may say that no negative freedoms exist... but doesn't this alone show that the concept of negative freedom isn't as flawed as some people think it is?
Just some background information on the topic
http://caselaw.lp.findlaw.com/data/Constitution/amendment09/
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
Aside from contending that a bill of rights was unnecessary, the Federalists 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 because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those. 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 Recently, however, the Amendment has been 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 Court 4 until it became the subject of some exegesis by several of the Justices in Griswold v. Connecticut. 5 There a statute prohibiting use of contraceptives was voided as an infringement of the right of marital privacy. Justice Douglas, writing the opinion of 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, while privacy is nowhere mentioned, 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 While, therefore, neither opinion sought to make of the Ninth Amendment a substantive source of constitutional guarantees, both did read it as indicating a function of the courts to interpose a veto with regard to legislative and executive efforts to abridge other fundamental rights. In this case, 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 which 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
what is a right of privacy in marriage?? isnt privacy a property issue??
I'm not sure. But supreme court justices have used the 9th amendment to declare that we do have a right to privacy. But in all seriousness, doesn't the very fact that judges are able to recognize negative freedom when they see it show that we could have a minimal constitution filled with negative liberty? I'm not quite so sure why people think that negative liberty wouldn't work. In fact in some cases where constitutions have lots of declared fundamental rights it's better to have negative liberty than to hae all of them listed. Wouldn't you agree?
you ARENT sure whart privacy in marriage is ...
buy you use the term negative liberty....what does that mean?
I think he is talking about rights as restrictions on government action, as opposed to positive rights, that are requirements on the government to do something on your behalf. Positive rights where used as a ploy by FDR to institute more progressive(read: smiley face fascism) policies.
You probably shouldn't even use the terms negative & positive rights.
Words are weapons.
James
I think he is talking about rights as restrictions on government action, as opposed to positive rights, that are requirements on the government to do something on your behalf. Positive rights where used as a ploy by FDR to institute more progressive(read: smiley face fascism) policies. You probably shouldn't even use the terms negative & positive rights. Words are weapons.
I realize that the idea of rights and liberties around the 20th century flipped and now rights that require government action are now seen as positive rights... whereas the ones that don't are said to be negative rights. I just use the term negative rights because they're all the rights that we just expect, they're our natural liberties that are ordained to us just by existing. The founding fathers wanted us to have all the liberty that we could and not just list every one of them in the US constitution. So by negative rights, I am talking about the rights which we all have, not listed in the constitution.
I'm wondering basically if given the courts judgment of the 9th amendment in the past, that it proves that we can have a private court system where courts recognize liberties that aren't written down in common law. I used to think that it couldn't be done but I think I'm starting to have more faith in the courts after I have been looking at history and seeing what courts have done in the past. I realize that times weren't always like now when we have Obama or Bush and Cheney wrecking the constitution and not recognizing our freedoms, but, I think that the argument against a libertarian or a freedom society that it wouldn't recognize freedom is largely bunk. We could just have a bill of rights like the US constitution does, and, basically, recognize all of our negative liberty with something like the 9th amendment. Just because something's not written down doesn't mean that it's not a right.
How does a sentence written on a piece of paper prove something?
Josh
How does a sentence written on a piece of paper prove something? It doesn't. But it shows that the idea of it can work. It was written down in paper and judges recognized it. Therefore, it was put down on paper and the idea of it actually worked in practice. | Post Points: 20
It doesn't. But it shows that the idea of it can work. It was written down in paper and judges recognized it. Therefore, it was put down on paper and the idea of it actually worked in practice.
It says that certain rights shall not be infringed upon, when did that work in practice? I'm not saying that negative rights do not exist or that they can't work in practice, but rights have never been uninfringed in the United States. It's a poor empirical claim.
Josh, there have been times in history when it's worked in practice. I never said that our rights in America haven't been infringed upon but that the ninth amendment can be used to secure our rights.
Justice Arthur Goldberg took a power‐constraint approach in his concurring opinion in Griswold v. Connecticut (1965)—an opinion that did much to revive interest in the Ninth Amendment: “[W]here fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose” (p. 497). Goldberg further argued that the Ninth Amendment justified protecting fundamental liberties that had not been included in the enumeration of rights. On this view, protecting both enumerated and unenumerated retained rights better safeguards the liberties of the people by reinforcing the scheme of limited delegated powers. These two approaches are not mutually exclusive. Rather than view the set of retained rights as shrinking automatically as governmental powers are interpreted more expansively, we could reverse Justice Reed's rights‐powers method of interpretation. Instead of limiting our inquiry to the expressed delegation of powers, we could examine the rights retained by the people to define the legitimate “ends” or powers of the government and thus provide an additional way of conceptualizing limits on government powers. An analysis of retained rights could also constrain the “means” by which governmental ends can be achieved. Enumerated rights have long served a power‐constraining function. For example, the First Amendment has been interpreted as protecting the “retained” rights of free speech by constraining government from pursuing the end of regulating the content of one's speech. The Fourth Amendment constrains government from pursuing its proper ends by means of unreasonable searches and seizures. Similarly, the right to use birth control that was protected in Griswold exemplifies an unenumerated “ends constraint.” If such activities are within the sphere of bounded liberty retained by the people, they are beyond the rightful power of government. The case of *Richmond Newspapers, Inc., v. Virginia (1980) provides an example of an unenumerated “means constraint.” There, a plurality of the Court, relying in part on the Ninth Amendment, protected the rights of the press to attend a public trial. Although the government may have the power to prosecute and try a defendant, it cannot do so by means of excluding the press.
http://www.answers.com/topic/amendment-ix-to-the-u-s-constitution
In those examples, people's rights were still infringed upon.
And even if they weren't, all it would prove is that what were perceived as rights were protected, not that rights exist.
And I don't know what you are asserting. Are you saying that it is proof that the 9th amendment worker or that negative rights work (what is the goal of negative rights)?