Response to Ed on the De-constructionism...

Ed over at Dispatches from the Culture Wars posted a response to my critique The Right to ? (a few posts below). I think part of Ed's issue is that he really doesn't understand what I'm saying, or that I'm not communicating it clearly enough... or a little of both. He seems to think that I'm advocating that we have no other rights other than those enumerated in the Constitution.

All of these are examples of rights that you and I - and Rusty, I would bet - take for granted, yet they are not listed in the bill of rights. Obviously, the founders could not list every single right that the individual enjoys. You take for granted that you have the right to choose what kind of shoes to wear and that if the legislature passed a bill banning the wearing of sneakers in the US, you would assume that such a law was unconstitutional, right?

Well, NO, I wouldn't consider a law that banned the wearing of sneakers in the US unconstitutional. I would consider it a frivolous law without merit, but that's a far cry from attempting to tie it to a Constitutional right. Ed must understand this as he later states,

But the bill of rights doesn't mention footwear at all and nowhere in the text does it say that you have such a right. Does that mean that the legislature can pass a bill outlawing sneakers? Of course not. This is an example of an unenumerated right, one that is not explicitly laid out in the text of the constitution, yet remains valid.

So if we take that logic to its conclusion then all rights are, by definition of the 9th amendment, Constitutionally mandated rights. But if that is so, then why the need for those rights already enumerated in the other amendments to the Constitution? If the intent was to make sure that we had the right to, as Ed states, wear sneakers, then why bother with listing anything at all and just save paper? Flippancy aside, the answer lies in the fact that I stated in my original post - "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." I emphasized a portion of the one sentence because Ed left it out when he quoted me in his post:

If he were to apply his argument consistently to every ruling that recognized an unenumerated right, he would reject all sorts of rulings that I'm sure he would consider perfectly valid, yet he has explicitly stated that all rulings involved unenumerated rights "do not reveal valid rights".

So we have a little problem here. If all rights not listed in the Constitution are covered anyway, and if those rights become Constitutional, then when a court declares that a slave owner has the right to own a slave because the slave is not a human but because he / it is the slave owner's property, what are we to do? The right is Constitutional - right? It must be inalienable - right? The court creates meaning - right? Wrong. Ed is also confused about whether de-constructionists think we can know the intent of the framers of the Constitution. I claim that Kyle's post declared it to be patently impossible. Consider Kyle's words again:

While original intent is a Pandora's Box that is really not worth bothering with, because a) times change, b) the Founders set up a system that allowed for the evolution of legal interpretation through the Ninth and Tenth Amendments, and c) the Founders were such a broad, diverse, and compromising group it's impossible to determine what their "intent" on any single issue was in any manner even approaching precision, I would venture to file that they would support the right to privacy. (emphasis added)

In any mannner even approaching precision. Truth be told, Kyle is trying to have it both ways. He sets up his reasons why he thinks original intent is difficult, if not impossible, to attain, and then promptly indicates what he thought the framers original intent was. This confusion is not surprising in that many people have swallowed the relativistic idea that interpretation lies with the reader alone. I ran into this mentality many times as I taught a study on how to interpret the Bible. "Well, that's just you're interpretation of the passage," or "How could we know what the original author intended?" The issue remains not whether we have rights, but whether judges can create meaning within text they did not author.