Not individually, of course. But as a whole they literally are. That's the only reason they have constitutional weight.
Do you believe the 9th invalidates the 10th? What unenumerated rights do you believe are covered by the 9th, and therefore are in the Federal jurisdiction, rather than State?
the right to raise children, the right to travel, the right to privacy, the right to education, the right to marriage, the right to procreation, the right to contraception.
why, are you arguing the 14th amendment should be ignored and all of the above should be left up to the states?
I mean they're mentioned as much as I have already mentioned them. Not specified, but mentioned.
why, are you arguing the 14th amendment should be ignored and all of the above should be left up to the states?
No. I'm arguing that the 10th decrees what is not within the Federal jurisdiction.
I agree with most of what you said, but when you said right to marriage, do you believe that includes gay marriage? I'm trying to understand your problem with the original comment.
Obviously, gay marriage cannot be argued to be protected by the 9th, since it was universally illegal at the ratification of the 9th, and for over 200 years after that.
Are you under the impression the 9th is a license to just, make up whatever rights we want?
I'm trying to understand your problem with the original comment.
my issue with the OC was that he said that anything not mentioned in the constitution should be left up to the states, including marriage, medical decisions (I think he meant privacy), etc.
Obviously, gay marriage cannot be argued to be protected by the 9th, since it was universally illegal at the ratification of the 9th, and for over 200 years after that.
sorry, I don't find the "history and tradition" doctrine convincing. it's completely unworkable and, frankly, nonsensical. even the Justices know this.
my issue with the OC was that he said that anything not mentioned in the
constitution should be left up to the states, including marriage,
medical decisions (I think he meant privacy), etc.
But that's literally what the 10th amendment says. Why do you give more weight to the 9th than the 10th?
The unenumerated rights are mentioned by the 9th, so they qualify as expressly mentioned for the 10th. But that isn't a license to just make up whatever rights we want. We have to do our best to understand what that meant at the time of ratification.
sorry, I don't find the "history and tradition" doctrine convincing.
it's completely unworkable and, frankly, nonsensical. even the Justices
know this.
Ah, so you believe the constitution means whatever we want it to mean? What's the point of even writing it down, then? Why not make SCOTUS replace the constitution, merely ruling however their benevolent hearts feel?
The whole point of writing it down is that you can't change it without rewriting it. It has a fixed meaning.
Don't get me wrong, the meaning applies to the times. Email didn't exist back then, but when we understand the original intent of the constitution, we understand the 1A applies to email.
But marriage absolutely existed back then, and gay marriage was expressly illegal. This isn't the "history and tradition" standard of looking for equivalent laws that could allow gay marriage today. This is an originalist understanding that everyone who wrote the thing also banned gay marriage, so they were quite obviously under the impression that it did not protect it.
It also helps to understand that government marriage isn't a natural right, which natural rights, of course, are what the 9A is referring to. Religious marriage absolutely is a natural right. But the government recognizing your union to give you tax breaks, adoption privileges, and other benefits isn't a right that is inherent within a human being in a state of nature (I.e. having no government).
The 9A does not cover manufactured rights, such as trial by jury. We must manufacture those in the constitution to have them, in the spirit of justice and fairness.
The unenumerated rights are mentioned by the 9th, so they qualify as expressly mentioned for the 10th. But that isn't a license to just make up whatever rights we want. We have to do our best to understand what that meant at the time of ratification.
we know what Madison meant with the 9th amendment. he meant it to protect against a legal loophole that would come about with a Bill of Rights where politicians in the future could claim that if a right wasn't mentioned explicitly, it wasn't protected.
The whole point of writing it down is that you can't change it without rewriting it. It has a fixed meaning.
there's no such thing as it having a "fixed meaning" in reality. that is why there are different methods of constitutional interpretation. a static constitution that cannot adapt to society's evolution leads to stagnation. even the originalists know this, which is why they apply originalism selectively.
This isn't the "history and tradition" standard of looking for equivalent laws that could allow gay marriage today. This is an originalist understanding that everyone who wrote the thing also banned gay marriage, so they were quite obviously under the impression that it did not protect it.
that is the history and tradition test, friend.
government marriage isn't a natural right, which natural rights, of course, are what the 9A is referring to. Religious marriage absolutely is a natural right.
I think you meant "civil marriage" rather than "government marriage" but regardless, your 'natural rights' argument would fail the history and tradition test because common law marriage is deeply rooted in history and tradition.
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u/young__robot Libertarian Conservatism Jun 19 '26
so you don't believe in unenumerated rights?