Constitutional law, again: Pangloss…
Constitutional law, again: Pangloss replies to my waxing romantic about the content of the Ninth Amendment:
<blockquote><p>Surely the issue is what the Ninth Amendment says, not whether or not the august justices of the Supreme Court make much use of it…</p></blockquote>
<p>by saying:</p>
<blockquote><p>No, Rad, that’s the romantic view. The realistic view is how the court, as well as the legislature and the states, have understood, interpreted and applied the Const throughout history.</p></blockquote>
<p>I’m not sure about the use of modifiers here. Is it in fact “romantic” rather than “realistic” to say that a law <em>means what it says</em>? Is it “realistic” rather than “romantic” to argue that whatever people who wear particular sorts of uniforms say about a law must be true of that law? But these terminological quibbles are not entirely on point. The main thing about Pangloss’s post that baffles me is how s/he intends to reconcile it with the arguments that s/he made earlier in this thread. Pangloss, remember, objected when lucia earlier cited the Court’s reasoning connecting Roe and Goodridge (among others–e.g., Brown v. Board of Education) to the Bill of Rights. Here’s what the reply was:</p>
<blockquote><p>Indeed, lucia! Which is why I say thank God (if you’ll pardon the expression) those old white 18th C. men included abortion and gay marriage in the Bill of Rights. You know, those Amendments that prohibit any state from using its police powers to regulate abortion in any way during the first 2 trimesters (trimesters! now, there’s a hoary concept!), and that mandate the states to redefine “marriage” in a completely novel and heretofore unknown way!</p>
<p>Now, let me dig out my copy of the Constitution and give you the numbers of those Amendments.</p>
<p>Bear with me a moment…</p>
<p>Hmm, they’re in here somewhere…</p></blockquote>
<p>So if the “realistic” view entails that the Court’s neglect of the Ninth Amendment is sufficient to gut the Ninth Amendment of any particular legal force, then why doesn’t the Court’s established precedent concerning the meaning of the other amendments in the Bill of Rights suffice for <em>those</em> decisions? </p>
<p>Either an appeal to the plain text of an amendment can potentially supercede the positive declarations of the court on the matter or it cannot. <em>Tertium non datur.</em></p>
Anticopyright.