A Response to Ed on the 9th...

Ed at Dispatches responded to my post The Right to?... He states,

Let's try a specific example and see how it plays out. Rusty is a staunch advocate of homeschooling. Nowhere in the constitution does it mention that you have a right to homeschool your children. So let's say that Congress passed a law declaring that all children must attend school and cannot be homeschooled. I am assuming, based on what he has said so far, that he would consider this a "right" but not a "constitutional right". But what exactly does this mean? Does that mean that it can be overridden by legislatures? By judges? By legislators but not judges? Is there some standard that should be used to determine which rights (not constitutional rights, just "rights") can be violated and by whom? If so, where does this standard come from? I think I'll have to wait for Rusty's answers to those questions for the moment, because I really don't understand what exactly it is that he is arguing here.

Let me clarify that I was comparing inalienable rights with constitutionally protected rights. Hence my example:

The examples listed of rights we enjoy, but which have not been enumerated in the Constitution, do not reveal valid rights inasmuch as they reveal the rulings of judges. They remain and will always remain the opinions of the court. One wonders what outcry would arise were a court to rule that young mothers have the right to torture their children in the privacy of their own home? Yet how far removed from that scenario was the dreaded whip of a slave owner in 1850 splitting open the back of one of his slave’s? Rulings are fallible – inalienable rights are not.

In other words, simply because a judge or a court has the power to grant a slave owner the right to own another human being in no way makes that right inalienable. I think Ed would agree that such a right is not inalienable even if it were to be declared constitutional. So the question becomes not whether a declared right falls into the not enumerated category of the 9th amendment, but whether such a declared right is, in fact, a right. The right to wear sneakers? The right to homeschool? The right to party? The right to belch when the need arises? Do we really consider these to be constitutionally protected rights? Ed continues,

He seems to think that if it's in the constitution it's "inalienable", but if it's not in the constitution, it's....what? That was the question I asked above and I'll await that answer. But I think it also should be said that merely because it's a part of the constitution as originally written, it isn't necessarily inalienable.

I agree that simply because a right is listed in the constitution does not make it inalienable. But then I end up asking Ed the question he’s asking me: What kind of right is it then? He claims we have the right to wear sneakers. What kind of right is that? Is it a right that can be removed? Wouldn’t that then make it a privilege? But the issue at this point heads towards author’s intent which is the gist of my original post. It seems that Ed and Kyle approach the topic of textual interpretation from a relativistic standpoint. This is not surprising as we live in a relativistic culture. I run into this when discussing Biblical passages with friends and relatives when I hear responses such as: “Well, that’s just your interpretation!” This is what I see essentially going on in posts such as Ed’s and Kyle’s. Ed states,

I think what Kyle is arguing is not that we can't know the intent of the framers at all, but that because it is often difficult to know it for the reasons he stated, it's not the "holy grail" or constitutional law that many conservatives think that it is. And Kyle is right when he points out that the diversity of opinion among the founders often makes it very difficult and requires that we pick and choose among the views. I'll give one perfect example of why this is true... In 1798, only 7 years after the ratification of the Bill of Rights, many of the same men (the founding fathers) who framed the first amendment guaranteeing freedom of speech and of the press passed a law called the Sedition Act. This law was pushed through and signed by one of the most prominent founding fathers, John Adams, and it got a majority of the votes in a Congress still led by several other prominent founders. Under this act, publishing anything that "defamed" the government was punishable with fines and imprisonment. And in fact, many of the nation's most prominent newspaper publishers were imprisoned under this law, including Benjamin Franklin's grandson. Another of the prominent founding fathers, Thomas Jefferson, ran against Adams in 1800 and when he won he pardoned everyone convicted under the Sedition Act and led the fight to repeal it because he considered in violation of the first amendment. Now tell me, given this situation, which position represents the "original intent" of the framers? It obviously isn't that simple. So while I disagree with Kyle when he says that original intent is "not worth bothering with" (though I doubt he really meant to make such a sweeping statement), I disagree even more with those who say that the original intent of the founders is the only thing that matters in judicial matters. (emphasis added)

Herein we see an example of the relativistic understanding I referred to above. Ed claims that we must pick and choose among the views of the founders with regards to original intent. He then does an analysis of events immediately after the Bill of Rights to conclude that determining the framer’s original intent is difficult, if not impossible. But there are least two problems he doesn’t seem to be aware of: 1) The fact that there was a disagreement regarding the 1st amendment of the Bill of Rights does not detract from the fact that there is an original intent inherent in the document, regardless of how difficult it may be to ascertain, and, 2) If we cannot ascertain the author’s original intent in a document such as the Bill of Rights, we do not then have license to create meaning within the text based on picking and choosing among the views.