4 ms·

I appreciate his "generally" staunch defense of constitutionally enumerated rights, but his logic tends to fall apart once applied outside that scope. His weak

I appreciate his "generally" staunch defense of constitutionally enumerated rights, but his logic tends to fall apart once applied outside that scope. His weak interpretation of the 4th amendment is particularly disappointing to me.

lisper 10y ago
His (and other conservatives) repudiation of the ninth amendment is even more, um, disappointing.
- CWuestefeld 10y ago
  I'd have said the opposite - that Thomas et al are closer to getting it right (although nobody seems to quite get all the way). I'm guessing that you're not making any distinction between negative rights (which is what the Bill of Rights and the rest of the Constitution deal with) versus the more modern idea of positive right. Negative rights are those where the government is constrained from interfering with you; freedom of speech and the right to keep and bear arms are obvious examples of this. Positive rights are those where we say that a person has an right to GET a thing, and so the government must be obligated to provide it. The Constitution does not guarantee any of this [1]. In that context, it seems correct to view 9A as saying that there exist additional unenumerated negative rights. But trying to do so with positive rights eventually gets into trouble, because there's no clear ceiling on how much of something is due to each person. So for example, there's a thing going around Facebook with Jimmy Kimmel about healthcare, which has everyone saying that no one should never need to consider finances when their child is sick. This is plainly false in the general case, because it would imply infinite resources. In the real world, there will always be a point at which we must say "no more". IMHO, given that the Constitution was written in the context of the Enlightenment idea of negative rights, and positive rights hadn't been part of the discussion; together with the fact that the limits of positive rights are thus left completely undefined, I'm quite OK with the Court deciding to keep a tight leash on that. [1] Although I suppose the right to an attorney when accused is kinda fuzzy. But it doesn't suffer from the problem of open-ended obligations that I discuss later.
  - lisper 10y ago
    > The Constitution does not guarantee any of this [1]. That depends very much on your interpretation. Habeus corpus. The right to bear arms. The right to confront witnesses against you. Trial by jury. Equal protection. All those seem like "positive rights" to me. Furthermore, it seems to me that you are doing exactly what the 9th amendment prohibits: you are extrapolating from the enumerated rights to make inferences about non-enumerated rights, and to conclude that because all of the enumerated rights fit some pattern that you discern, all of the non-enumerated rights must fit the same pattern, and so you can deny and disparage those non-enumerated rights that don't fit your perceived pattern. Well, no. The 9th amendment was specifically intended to prohibit this kind of reasoning. Some of the framers didn't want a Bill of Rights at all because they were afraid (and apparently rightly so) that people would mount exactly the kind of argument that you are mounting.
    - CWuestefeld 10y ago
      Habeus corpus. The right to bear arms. The right to confront witnesses against you. Equal protection. All those seem like "positive rights" to me. I'm not sure you understand the concept. It's never been seriously suggested that the right to keep and bear arms implies that the government must supply a gun for me. The right to habeas corpus doesn't say that the government has to do anything to make me comfortable, just that I retain ownership of my person. Equal protection doesn't say anything about equal outcomes, just that the law must not view any of us differently. There really is a fundamental difference in saying that the government must not do something (the negative rights angle), versus that the government provide us something (the positive rights angle).
      - linkregister 10y ago
        The term "rights" means different things in different places. In the realm of the Constitution, it almost exclusively refers to limits of the (Federal!) Government. In terms of a contract or in modern welfare state entitlements (such as Social Security), "rights" indeed refer to benefits owed. Kimmel wasn't referring to the Federalist Papers when he made his speech; it was an informal humanitarian modern-welfare-state understanding of "rights". I agree that there should probably be some limit to the amount an insurance company needs to fulfill claims, otherwise our premiums are likewise unbounded. The NHS and Canadian health systems appear to have rate limiting aspects (perhaps unintended) that have the outcome of bounding costs.

lisper 10y ago

His (and other conservatives) repudiation of the ninth amendment is even more, um, disappointing.

CWuestefeld 10y ago
I'd have said the opposite - that Thomas et al are closer to getting it right (although nobody seems to quite get all the way). I'm guessing that you're not making any distinction between negative rights (which is what the Bill of Rights and the rest of the Constitution deal with) versus the more modern idea of positive right. Negative rights are those where the government is constrained from interfering with you; freedom of speech and the right to keep and bear arms are obvious examples of this. Positive rights are those where we say that a person has an right to GET a thing, and so the government must be obligated to provide it. The Constitution does not guarantee any of this [1]. In that context, it seems correct to view 9A as saying that there exist additional unenumerated negative rights. But trying to do so with positive rights eventually gets into trouble, because there's no clear ceiling on how much of something is due to each person. So for example, there's a thing going around Facebook with Jimmy Kimmel about healthcare, which has everyone saying that no one should never need to consider finances when their child is sick. This is plainly false in the general case, because it would imply infinite resources. In the real world, there will always be a point at which we must say "no more". IMHO, given that the Constitution was written in the context of the Enlightenment idea of negative rights, and positive rights hadn't been part of the discussion; together with the fact that the limits of positive rights are thus left completely undefined, I'm quite OK with the Court deciding to keep a tight leash on that. [1] Although I suppose the right to an attorney when accused is kinda fuzzy. But it doesn't suffer from the problem of open-ended obligations that I discuss later.
- lisper 10y ago
  > The Constitution does not guarantee any of this [1]. That depends very much on your interpretation. Habeus corpus. The right to bear arms. The right to confront witnesses against you. Trial by jury. Equal protection. All those seem like "positive rights" to me. Furthermore, it seems to me that you are doing exactly what the 9th amendment prohibits: you are extrapolating from the enumerated rights to make inferences about non-enumerated rights, and to conclude that because all of the enumerated rights fit some pattern that you discern, all of the non-enumerated rights must fit the same pattern, and so you can deny and disparage those non-enumerated rights that don't fit your perceived pattern. Well, no. The 9th amendment was specifically intended to prohibit this kind of reasoning. Some of the framers didn't want a Bill of Rights at all because they were afraid (and apparently rightly so) that people would mount exactly the kind of argument that you are mounting.
  - CWuestefeld 10y ago
    Habeus corpus. The right to bear arms. The right to confront witnesses against you. Equal protection. All those seem like "positive rights" to me. I'm not sure you understand the concept. It's never been seriously suggested that the right to keep and bear arms implies that the government must supply a gun for me. The right to habeas corpus doesn't say that the government has to do anything to make me comfortable, just that I retain ownership of my person. Equal protection doesn't say anything about equal outcomes, just that the law must not view any of us differently. There really is a fundamental difference in saying that the government must not do something (the negative rights angle), versus that the government provide us something (the positive rights angle).
    - linkregister 10y ago
      The term "rights" means different things in different places. In the realm of the Constitution, it almost exclusively refers to limits of the (Federal!) Government. In terms of a contract or in modern welfare state entitlements (such as Social Security), "rights" indeed refer to benefits owed. Kimmel wasn't referring to the Federalist Papers when he made his speech; it was an informal humanitarian modern-welfare-state understanding of "rights". I agree that there should probably be some limit to the amount an insurance company needs to fulfill claims, otherwise our premiums are likewise unbounded. The NHS and Canadian health systems appear to have rate limiting aspects (perhaps unintended) that have the outcome of bounding costs.