What happens to rights not enumerated (explicitly stated) in the constitution? Do does that power flow automatically to the people, congress, the president or the USSC? Some legal scholars argue that unenumerated rights flow to the people. The Bill of Rights seems to be in accord with that assessment. The 9th Amendment reads as follows:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The 9th is one of the original 10 Amendments in the Bill of Rights. The 9th makes it clear that the rights enumerated in the Constitution are not an exhaustive list, and that people retain other rights not specifically mentioned. However, the Supreme Court usually treats the Ninth Amendment as a guiding principle rather than a source of substantive rights, something I have never understood. The courts acknowledge the existence of unenumerated rights, but the 9th does not specify what those rights are or how they should be determined. This has leads to debate and interpretation in legal and political spheres about what constitutes a fundamental right deserving of constitutional protection. From what I can tell, there is no good way to distinguish a fundamental right from a non-fundamental one, and the USSC has been reluctant to "find" fundamental rights the Constitution protects.
So, what about abortion, same sex marriage, the right to marry generally, privacy, contraception, interstate travel, procreation, custody of a person's children, vote, control of important decisions about one's health care or body, and slew of other things? None of those are mentioned in the constitution.
Before the Roe v Wade decision in 1972, the states regulated abortion. After Roe, the court found a right to an abortion, but put a limit on it, allowing the states to regulate abortion of late term pregnancies. Basically, the Roe court gave most of the scope of a right to an abortion to the people. The states were left with a small portion of that right. It was a compromise that tipped the balance of power to the people, but left power to regulate late term abortions to the states. The court decided there was a right to abortion in the shadow of the right to privacy and under the 14th Amendment due process clause (reasoning that never made much sense to me).
So, what about how the self-professed, freedom-loving radical right authoritarian Republicans think about and deal with these things? After I slapped it once, Perplexity said this:
Q: Republicans have recently restricted abortion rights, an unenumerated right, so why do you say that there are no recent examples of Republicans specifically asserting that unenumerated rights, such as abortion, are subject to federal or state regulation?
A: I apologize for the confusion in my previous response. You are correct, and I should have interpreted the search results more accurately. Let me provide a more appropriate answer based on the information available. Recent examples show that Republicans have indeed asserted that abortion rights, which are considered unenumerated rights, are subject to federal or state regulation. In 2022, the Supreme Court's decision to overturn Roe v. Wade, supported by Republican-appointed justices, effectively allowed states to regulate abortion. Following this decision, Republican-led states have enacted various abortion restrictions, demonstrating their belief that this unenumerated right is subject to state regulation. Although former President Trump has recently stated he would leave abortion laws to the states, this shift in position contradicts previous Republican efforts to restrict abortion at the federal level, including a 20-week abortion ban passed by House Republicans during Trump's presidency.
That makes perfect sense. Authoritarians want power to accrue to elites and capturable (corruptible) governments, while draining it from democratic, pro-civil liberty governments and the people. State governments are much more easily captured than a national government. Although they claim to support democracy, civil liberties, the rule of law and the Constitution, authoritarian American institutions such as DJT, his MAGA, the morally rotted GOP and Christian nationalist theocrats oppose all of that.
In essence, American radical right authoritarianism has turned the Constitution on its head. It wants to give power to captured governments and courts that elites can mostly or almost completely control. Authoritarianism has to do that because the Constitution is inherently pro-democracy and anti-authoritarian by virtue of the 9th and other Amendments. That those Amendment have to be subverted.
From what I can tell, our Constitution is ossified and needs updating. Unfortunately, it is impossible to change it by proposed congressional amendments. Our society is too bitterly divided. And, efforts to change it could make it less democratic and more hostile to civil liberties than it is now. That's what the American authoritarian wealth and power movement wants to do by calling for a Convention of States. Since each state gets only 1 vote on each proposed constitutional amendment, this would favor rural states. Authoritarians want to use that to neuter civil liberties and laws they dislike, primarily laws that interfere with wealth and power accumulation by elites.
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