The Gun Thread has been very interesting, and I hope it continues.

However, one issue appears to be emerging that I think deserves a separate thread.
That is the distinction between "explicit" rights such as those delineated in the Bill of Rights and "derived" rights such as abortion.

It is my understanding that Madison was reluctant to draft a Bill of Rights because he didn't see a need to list rights if rights already resided in the people and that an enumerated list of rights would be seen as the complete list of rights.

However, when it became apparent that the demand for a Bill of Rights was too great, he decided he would be the one to write it.

So, we have the rights specified in the first eight amendments. In addition, the ninth explicitly states that this is not the complete list, and citizens possess rights not specifically mentioned. The tenth amendment provides States may retain certain powers not specifically delegated to the Federal government.

The 14th amendment states that by virtue of being a citizen of the United States, I have "privileges and immunities" which no state may abridge.

But none of these amendments is specific as to what these retained rights, delegated powers, and privileges and immunities are.

As my previous quote from John Marshall in the Gun Thread stated, if you try to fit put everything on paper, you have a legal code, not a Constitution.

So, what are these retained rights, etc. And how do we decide?

That is an amazingly sharp question. I'll take a stab at it, but the question (multiple parts) and scope is fairly broad. Don't have the time tonite but I will definitely address this.

The interplay of the various Amendments in the Bill of Rights was noted in some of the more pronounced and well known 'derived rights' reasonings. The 14th is known for the obvious interconnection with the 15th and 16th Amendments, but has a definite role in the application of Rights to the states.

The 'privileges and immunities' of the 14th is an odd one --

And the 9th is another odd bird of an Amendment.

Embedded in that discussion is the actual construction of how rights are defined in the first eight amendments (which addressed Madison's concern in a very deft manner), and how that differs from other amendments and the more readily tangible 'implicit amendments'.

Sorry about the 150,000 foot view, but I will put in a far more detailed answer sometime shortly.

(02-23-2018 04:44 PM)JSA Wrote:  So, what are these retained rights, etc. And how do we decide?

One thing's for sure: abortion cannot logically be a "retained" right, since it never in Western legal history was a right in the first place. Legalizing it may have been a commendable innovation (just like the First Amendment's explicit abolition of established churches was) and an absolutely wonderful idea, but the Supreme Court was indulging in just plain wishful thinking when it decided that it ALREADY had constitutional status.

By the same token, Roger Taney in Dred Scott was indulging in his own (warped) form of wishful thinking when he declared that blacks could not be citizens -- there had been black citizens from the founding of the United States.

JSA -- havent forgotten this. This simple one post question takes up an entire semester in law school.... thanks for your patience.

(02-27-2018 03:38 PM)tanqtonic Wrote:  JSA -- havent forgotten this. This simple one post question takes up an entire semester in law school.... thanks for your patience.

Look forward to your thoughts.
I've been doing some more reading up, too.

In addition to the "privileges and immunities" clause, the 14th Amendment also specifies, "nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws." "Liberty" has played a big role.

"One thing's for sure: abortion cannot logically be a "retained" right, since it never in Western legal history was a right in the first place. Legalizing it may have been a commendable innovation (just like the First Amendment's explicit abolition of established churches was) and an absolutely wonderful idea, but the Supreme Court was indulging in just plain wishful thinking when it decided that it ALREADY had constitutional status."

Which seems to be Blackmun's clerk's opinion.

(02-27-2018 03:53 PM)JSA Wrote:  Which seems to be Blackmun's clerk's opinion.

Indeed!
Judge-made amendments are bad enough -- but clerk-made amendments are crazy!