Does The Ninth Amendment Protect RESPONSIBLE Drug Use?

[ulTRAX]

I want to restart a discussion I began last April: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x1299722

I personally believe that people should have the right to do anything
that doesn't harm others. This does not mean I define "harm" in narrow terms. Pollution or second hand smoke would qualify in my book.

Therefore I believe that any law that exceeds legitimate intent... where there is no compelling state interest to protect others, to be an abuse of state power.

We all know politicians are a lazy lot frequently writing bad laws
which take away rights from individuals or groups that are NOT causing
any social problem. For instance about 10 years my state, in attempt
to get young men from killing themselves driving drunk they simply
raised the drinking age from 18 to 21. Groups who were not even part
of the problem were caught in the net... those who drink responsibly
and don't drive, young women, etc. If the problem was drunk driving
then THAT behavior should have been targeted thus covering ALL age
groups. We saw how politicians, fearing that they would be accused on
being soft on drug use, got into a blood frenzy writing scorched-earth
laws that raise penalties beyond all reason. The high penalties
against crack vs. ordinary cocaine are good examples. So are the draconian Rockefeller drug laws in NY.

In the Constitution is that forgotten 9th amendment that the states insisted be written into the Constitution: "The enumeration
in the Constitution, of certain rights, shall not be construed to deny
or disparage others retained by the people." There's some overlap
with the 10th. Here's a discussion of it:
http://caselaw.lp.findlaw.com/data/constitution/amendme...
Probably the most famous case involving the 9th is Griswold v
Connecticut in which restrictions against birth control were found
unconstitutional.

It seems clear that the original intent of this amendment was to
uphold John Locke's doctrine of natural rights... that rights exist
as a state of being (minus slaves, of course), and government must have some legitimate intent before restricting them. Here's a source: http://radicalacademy.com/lockebio.htm I don't
know if it's the best discussion. Here's an additional contemporary source on how natural rights were viewed by the French in 1789:
http://www.yale.edu/lawweb/avalon/rightsof.htm If you've never read
the Rights of Man... do yourself a favor. It builds a much more reasoned argument about rights than is in our Constitution.

So, can a case be made that under the 9th amendment
scorched-earth laws written by Neanderthal or lazy politicians that
unjustly restrict the rights of responsible citizens are
unconstitutional? Can a case be made that the 9th REQUIRES laws to be written in ways that clearly state legitimate intent, target ONLY a well-defined problem, and in ways that maximize the freedoms of responsible people? Should citizens have the right to sue politicians for "political malpractice" if they willfully push for laws that violate this standard? Which brings me to my question: does the 9th protect responsible drug use?

[The Straight Story]

1. The constitution, et al, are about as clear as the bible on some things

i.e, many folks interpret both differently. I am always fascinated by both as well based on the genre in which writings take place relating to them.

Not really answering you, or adding anything to the discussion, just throwing out my view as your post reminded me of such things.

[I_like_chicken]

2. Ah, and who is interperting our constitution right now

The Supremem Court, currently controlled by Repbulicans. If they don't want Marijuana Legalized, it won't be, the constitution be damned.

[ulTRAX]

3. Constitution and radical right activist judges

True. the Constitution is clear on many things.... the 3 branches of government for example. But it's not clear on rights. There are the enumerated rights in the Bill of Rights and I'd like to think that the 9th amendment covers the non-enumerated rights.... but right-wing activist judges like Scalia have found a way to negate this amendment. He claims the only rights that are protected are those envisioned and generally accepted back in 1789. For him there is no right to birth control or "sodomy" because the Framers/first Congress didn't believe there was. He believes his duty is to prevent the establishment of new legal rights though the judicial process. He claims they should be established thought the legislative process. To Scalia the 9th has no real meaning. The Right can safely hide its bigotry behind Scalia's doctrine of Originalism. Worse, the Left is silent about using the ninth to promote rights. Hell, Kerry had a perfect chance to expose the danger the Right poses to our freedoms during the campaign. He only mentioned the right to choose.

[Cowboy Joe2k]

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I may have bargained a solid argument to avoid getting stuck in this damn contraption.

[Nikia]

4. I wondered how it wouldn't be protected under the constitution

At the time of alcohol prohibition, the government thought in order to have national prohibition that there needed to be a constitutional amendment. I don't see why consuming any substance would be any different.
As far as I understand, the national government strongly encouraged states to raise their drinking ages by denying them federal money if they did not.
For the early part of American history, states had much more power than they do now. They had more freedom in their laws regulating safety, health, and morals. After the Civil War, the government decided that there were some laws that shouldn't be left up to the states and that all citizens of the United States should be protected under the laws of the United States. As far as slavery and the rights of the freed slaves, this was a good thing. These post civil war laws were later applied to noble causes such as labor regulations and the production of safe products. The Constitution also has an interstate commerce clause, which was interpreted to include all commerce since almost some parts of any business come from out of state. I believe that the drug trade is also considered interstate commerce.
I would have thought that there might be some basis on the interpretation of right to privacy, but with the Bush court that might be struck down as well.

[ulTRAX]

5. enumerated rights vs penumbral rights vs open-ended 9th

Nikia wrote: "I would have thought that there might be some basis on the interpretation of right to privacy, but with the Bush court that might be struck down as well."

This goes to the heart of the matter. Bush claims he wants judges who will just interpret the Constitution.... justices like Scalia. But Scalia is a radical activist in his own right. By ignoring the open-ended 9th amendment, he claims only enumerated rights are actually protected. Behind this legal facade, Scalia is free to use the court to promote his own bigotry.

Aside from the 9th, there is court precedent for the concept of penumbral rights... rights that must exist to give enumerated rights some substance. I really wish Kerry... and Democrats generally did more to expose Bush's radical agenda for the court. But all Kerry talked of was the right to choose.

[mosin]

6. Personal autonomy

So, can a case be made that under the 9th amendment
scorched-earth laws written by Neanderthal or lazy politicians that
unjustly restrict the rights of responsible citizens are
unconstitutional? Can a case be made that the 9th REQUIRES laws to be written in ways that clearly state legitimate intent, target ONLY a well-defined problem, and in ways that maximize the freedoms of responsible people? Should citizens have the right to sue politicians for "political malpractice" if they willfully push for laws that violate this standard? Which brings me to my question: does the 9th protect responsible drug use?

Your implicit formulation is close to mine. I don't believe discussions of enumerated versus penumbral rights are very useful. That framework ignores the message of the Ninth Amendment, which was to address the concern that itemizing certain rights would imply those as the only rights.

What is crucial is that the federal government is supposed to have limited powers to interfere in the lives of individuals. As a civil libertarian, I believe that governmental interference with private conduct is legitimate only where the government acts to "maximize the freedoms of responsible people," as you put it. This formulation challenges the legitimacy of laws against private drug use, consensual prostitution, consensual adult pornography, and individual gun ownership.

So, to answer your question, I believe the Ninth Amendment acknowledges that there are other areas besides those itemized that are not proper areas for governmental regulation. I believe private drug use, as a matter of personal autonomy, is one of those areas.

[ulTRAX]

7. where are the democrats?

mosin wrote: "So, to answer your question, I believe the Ninth Amendment acknowledges that there are other areas besides those itemized that are not proper areas for governmental regulation. I believe private drug use, as a matter of personal autonomy, is one of those areas."

Which brings up the logical question... why is no one advocating for the 9th? Why is the Democratic Party silent on the constitutional issue only standing up for reproductive rights issues instead of doing as the NRA does... wrapping themselves in the mantle of the Constitution? There has to be a debate about Scalia's radical doctrine of originalism. But the Right tries to pass it off as simple interpretation of the Constitution and the Democrats are, as usual, MIA on educating the Public.

I think the 9th is clear... and is in keeping with The Rights of Man, another example of the enlightenment of the late 18th century:

"4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law."

[mosin]

8. Sadly absent.

I agree with you. I wish the Democratic party would fully embrace the principal of personal autonomy. Right now only right-wing Libertarians fully embrace that principal. Left-leaning libertarians have sadly tended to pick and choose among those rights that they think are good policy.

[ulTRAX]

9. libertarians

My observation has been that right-wing libertarians also have a political agenda... they concentrate on rights in the market and seem oblivious to the social costs imposed by corporations on innocent third parties.

[mosin]

11. Political agendas

Everyone has a political agenda. And yes, right-leaning libertarians ignore the social costs of laissez-faire policies.

[Pepperbelly]

10. my pet question: why a const. amndt to ban alcohol but not pot? nt

[ulTRAX]

13. amendments are political

Amendments can only pass if there's great political pressure. In the late 1800s though the 1920s the temperance movement was quite powerful. Since Lawmakers have passed federal laws to ban pot, the new anti-pot temperance types have no need to organize.

[ulTRAX]

14. REAL link to FindLaw Article

I ust noticed that the link I provided to the FindLaw article was incomplete. Here's that link: http://caselaw.lp.findlaw.com/data/constitution/amendment09/