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As an aside, this is a decent example of why some people oppose bills of rights. As I understand it, the argument is that a bill of rights is considered exhaust

by ruytlm 9y ago

As an aside, this is a decent example of why some people oppose bills of rights. As I understand it, the argument is that a bill of rights is considered exhaustive; if it's not in the bill, it's not protected. By contrast, countries without a bill of rights are free to interpret their constitutions through implied rights, in ways that make sense in the context and allow the constitution to adapt to new or developing circumstances. See for example, https://en.wikipedia.org/wiki/Australian_constitutional_law#Implied_rights https://en.wikipedia.org/wiki/Australian_constitutional_law#... Not entirely sure which side of that argument I'd sit on.

rayiner 9y ago
At least in the U.S., that is not the real issue. Nobody disputes that the Bill of Rights is not exhaustive. But just because the Bill of Rights is not exhaustive does not mean that the Supreme Court may make up new rights over time. Legal conservatives in the U.S. adhere to the idea that for a right to exist, society must have recognized it as a right at the time the Constitution was written. In other words, you do not have to find the right in the Bill of Rights, but you do have to find it somewhere.
- dvt 9y ago
  This is very reductive and borderline misleading. Federalist No. 84 discusses some very specific reasons why it may not be a great idea to have a bill of rights -- primary dealing with government overreach. I think placing the debate in the politically-charged context of "originalism vs living document" is pretty unfair.
- lisper 9y ago
  > Nobody disputes that the Bill of Rights is not exhaustive. Unfortunately, that is not true. Robert Bork famously disputed it, even going so far as to deny the validity of the ninth amendment. Many conservatives support Bork's position today, e.g.: http://www.nationalreview.com/article/336142/judge-borks-ink-blot-ramesh-ponnuru http://www.nationalreview.com/article/336142/judge-borks-ink... They do this because it's a logical pre-requisite for overturning Roe v. Wade.
  - MereInterest 9y ago
    Which is really messed up, given that the Ninth Amendment explicitly states that the Bill of Rights should not be taken as an exhaustive list.
    - Ntrails 9y ago
      That's the least messed up part, if you dispute the validity of the ninth and it is also the first to explicitly state that the previous list is not exhaustive, then clearly your position is consistent...
  - dragonwriter 9y ago
    > They do this because it's a logical pre-requisite for overturning Roe v. Wade. It's really not, though, it's just a convenience; one could easily find grounds tomreverse Roe.and even the subsequent abortion decisions without just ignoring the Ninth Amendment. The real reason is that the Ninth Amendment is irreconcilable with the narrow mode of textualism that I personally think of as “four corners” or “sola scriptura” textualism, that seems to portray the Constitution’s text as complete and needing no external historical, cultural, etc., understanding to interpret. Because the Ninth Amendment specifically lays out that their are rights which existed and remain protected wothout being enumerated in the Constitution, it necessitates looking beyond the four corners of the Constitution to identify what those rights are.
    - alphaalpha101 9y ago
      As someone that isn't American, I support things like abortion rights and such, but I still think that your constitution seems to be so incredibly broadly interpreted that it might as well just be judges choosing whatever they personally think the result should be. It's basically a 9-man supreme legislature. Abortion rights should exist. I just don't necessarily think they should exist because of an 'implied right to privacy'. Like, what? There are lots of things that Governments restrict that go on in private. I think nobody could really sensibly argue that the US Constitution actually says that the USA can't pass laws about what people do in their own privacy.
t49261 9y ago
"3B. Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution..." Similar ideas underlie the thought of the founders of the American constitution. The most fundamental rights are inherent- they do not need to be recognized separately. By including privacy among these rights, the Indian Supreme Court is making it more fundamental than e.g. freedom of speech or assembly. Although I am far away and unaffected, I find this enormously encouraging. In a decade or two, the most populous country in the world will be a democracy with a fundamental respect for human life and liberty.

by ruytlm 9y ago

rayiner 9y ago

At least in the U.S., that is not the real issue. Nobody disputes that the Bill of Rights is not exhaustive. But just because the Bill of Rights is not exhaustive does not mean that the Supreme Court may make up new rights over time. Legal conservatives in the U.S. adhere to the idea that for a right to exist, society must have recognized it as a right at the time the Constitution was written. In other words, you do not have to find the right in the Bill of Rights, but you do have to find it somewhere.

dvt 9y ago
This is very reductive and borderline misleading. Federalist No. 84 discusses some very specific reasons why it may not be a great idea to have a bill of rights -- primary dealing with government overreach. I think placing the debate in the politically-charged context of "originalism vs living document" is pretty unfair.
lisper 9y ago
> Nobody disputes that the Bill of Rights is not exhaustive. Unfortunately, that is not true. Robert Bork famously disputed it, even going so far as to deny the validity of the ninth amendment. Many conservatives support Bork's position today, e.g.: http://www.nationalreview.com/article/336142/judge-borks-ink-blot-ramesh-ponnuru http://www.nationalreview.com/article/336142/judge-borks-ink... They do this because it's a logical pre-requisite for overturning Roe v. Wade.
- MereInterest 9y ago
  Which is really messed up, given that the Ninth Amendment explicitly states that the Bill of Rights should not be taken as an exhaustive list.
  - Ntrails 9y ago
    That's the least messed up part, if you dispute the validity of the ninth and it is also the first to explicitly state that the previous list is not exhaustive, then clearly your position is consistent...
- dragonwriter 9y ago
  > They do this because it's a logical pre-requisite for overturning Roe v. Wade. It's really not, though, it's just a convenience; one could easily find grounds tomreverse Roe.and even the subsequent abortion decisions without just ignoring the Ninth Amendment. The real reason is that the Ninth Amendment is irreconcilable with the narrow mode of textualism that I personally think of as “four corners” or “sola scriptura” textualism, that seems to portray the Constitution’s text as complete and needing no external historical, cultural, etc., understanding to interpret. Because the Ninth Amendment specifically lays out that their are rights which existed and remain protected wothout being enumerated in the Constitution, it necessitates looking beyond the four corners of the Constitution to identify what those rights are.
  - alphaalpha101 9y ago
    As someone that isn't American, I support things like abortion rights and such, but I still think that your constitution seems to be so incredibly broadly interpreted that it might as well just be judges choosing whatever they personally think the result should be. It's basically a 9-man supreme legislature. Abortion rights should exist. I just don't necessarily think they should exist because of an 'implied right to privacy'. Like, what? There are lots of things that Governments restrict that go on in private. I think nobody could really sensibly argue that the US Constitution actually says that the USA can't pass laws about what people do in their own privacy.

t49261 9y ago

"3B. Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution..." Similar ideas underlie the thought of the founders of the American constitution. The most fundamental rights are inherent- they do not need to be recognized separately. By including privacy among these rights, the Indian Supreme Court is making it more fundamental than e.g. freedom of speech or assembly. Although I am far away and unaffected, I find this enormously encouraging. In a decade or two, the most populous country in the world will be a democracy with a fundamental respect for human life and liberty.