DMB,
Maybe I didn't explain well enough, you seem to have missed the thrust of
the arguments.
> DMB replies...
> Right. I'm familiar with the strict constructionist school. Its associated
> with the right, which is pretty well represented in the Supreme Court. The
> logic of strict construction says we should take the vote away from women
> and re-enslave everyone with a drop of African blood. Bigots love that
> school of thought. You don't want to be hanging around those guys, do you?
RICK
Whoa there... slow down a bit. The 'logic of constructionism' says
nothing about taking voting rights from women or re-enslaving blacks as the
text of the Constitution explicitly gives all citizens the right to vote and
forbids slavery (you're choice of these examples was sort of a shameless
appeal to emotion... don't you think?). Constructionism means only that we
should try to take the plain text of the Constitution at face value and to
read into it as little as possible... that's all. All of these associations
with the 'political right' and conservative politics are just stereotypes
(saying that Scalia is representative of a constructionist is like saying
that Stalin is representative of a socialist).
DMB
> Its absurd to talk about expansion of rights in terms of traditional
rights
> already in existence just in terms of logic. To talk about new rights by
> going backward expansion is equally irrational. Its just wrong on so many
> levels.
RICK
You've misunderstood the argument. The argument is NOT that the 9th
amendment discussed the 'expansion of rights' in terms of 'traditional
rights' (which I wholeheartedly agree would be a logical absurdity).
Rather, the argument is that the 9th amendment does NOT deal with the
'expansion of rights' at all. It deals with and preserves only the rights
possessed by the citizenry of 1776, but that went UNENUMERATED in the
constitution.
Expansion of rights is dealt with only by the provisions for amendment.
> Rick wrote....
> Personally, I'm with School #2 also. I think interpreting the 9th to
be
> a source of NEW rights would make the Constitution TOO Dynamic. Such an
> interpretation would be to make the Constitution itself subject to
explicit
> legislative/judicial rewriting without having to go through the amendment
> process. But the amendment process is SUPPOSED to be cumbersome... A
> Constitution is supposed to be mostly Static.
DMB...
Huh? How does adding new articles to the bill of rights disrupt the
amendment process? That IS the amendment process. A strait forward reading
of the 9th amendment does nothing to disrupt that intentionally cumbersome
process.
RICK
The amendment process is accomplished by ratification of supermajorities of
both houses of congress and the state legislatures. Reading the 9th
amendment as an ALTERNATIVE way to add articles to the bill of rights
(independent of the amendment process) would allow the government to
circumvent the amendment process in all cases by simply finding any desired
'new right' to exist under the 9th amendment.
DMB
I don't think its dynamic enough as far as adding rights. And the strict
constructionist reading makes this process completely static and undermines
the whole
purpose of it.
RICK
A constructionist reading does not make the process completely static (why
do feel the need to write 'strict' constructions? What purpose does the
'strict' serve?). A constructionist reading still includes the Dynamic
window of the amendment process. Similarly, saying that a constructionist
reading 'undermines the whole purpose of it' begs the question entirely by
assuming the purpose of the amendment has to do with the 'expansion' of
rights rather than the 'preservation' of rights.
DMB
> I'm not just calling names here. I think its important to see the
political
> aims and motives behind these two schools. Like so many of the buzz words
> and ideological weapons used by the right, this one shows a certain
> hostility for rights. It reveals an anti-intellectual attitude even as it
> poses as scholarship just as creation science is anti-scientific.
RICK
I think your making a big mistake by associating a particular philosophy of
textual interpretation with cartoonish political stereotypes of what is
'left' or 'right'. Many people in this forum make this same error (Platt
scolds me for being too liberal and politically correct... now you scold me
for being too 'politically right' and hostile to rights--- funny ain't it?).
take it easy
rick
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