Re: [dvd-discuss] 9th Amendment

[Bryan Taylor <bryan_w_taylor(at)yahoo.com>]

--- Harold Eaton <haceaton@hotmail.com> wrote:
> > > Just out of curiosity could you list more than five rights granted by
> > > the 9th amendment since you "support" it?


> >The 9th amendment does not grant any rights. It stands for the proposition 
> >that right are not enumerated and need not be textually granted to exist. 
> >What you really mean is can I name rights that Courts recognize that are 
> >not explicitly mentioned in the Constitution or Bill of rights

> My question was accurate as stated. The way you've re-phrased it suggests 
> you believe that courts have already determined all rights that will ever 
> exist already. 

I should have said "would recognize" instead of just "recognize". I wasn't
trying to imply that at all. 
> Can you name one right guaranteed by the nineth amendment that the
> courts have not yet acknowleged? Do such right(s) exist?

I do stand by my statement that the 9th amendment doesn't grant any rights per
se, but setting aside this semantic difference, yes, new rights almost
certainly will gain future legal recognition. Identifying a specific one is
harder and somewhat speculative. I'd feel pretty confident a right against
involuntary cloning exists.

I'll have to look up some caselaw on the 9th amendment, but as I recall, there
has to be a tradition of belief in the right for a Court to recognize it. Such
tradition could be created in at least two ways: as the result of a legal
decision based on precedent that is later overturned, or as the result of
convention surrounding new technology. The former sounds weird, but IIRC that's
essentially what they said about Miranda rights, and perhaps even abortion (the
Casey decision). The reasoning behind Miranda is probably not valid, but the
Court declined to say it should kill the Miranda right as a consequence because
it had taken on a life of it's own.

Along the new techology lines, your RF transmitting right had a chance, but I
think it has been rejected by Courts based on the scarcity principle.

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