Griswold v. Connecticut, 381 U.S. 479 (1965) (USSC+)

Wed, 5 Mar 2003 14:13:42 -0800

> From: [] On Behalf Of
> Russell Turpin
> Sent: Wednesday, March 05, 2003 1:34 PM
> To:
> Subject: RE: Griswold v. Connecticut, 381 U.S. 479 (1965) (USSC+)
> I think you've made a hash of the 9th and the 10th.
> The 9th says that RIGHTS not enumerated are retained
> by the people. It makes no mention of the states.

Yep, guilty.

> In my opinion, Ashcroft is due for
> yet another Supreme Court smackdown.

I didn't think he had lost one yet.

> But I asked about the 9th. It seems to me, still,
> that you're taking the position that it is window
> dressing, with no operative content. If I interpret
> you wrongly, then please tell the example where you
> would have it apply.

"It is clear from its text and from Madison's statement that the
Amendment states but a rule of construction, making clear that a Bill of
Rights might not by implication be taken to increase the powers of the
national government in areas not enumerated, and that it does not
contain within itself any guarantee of a right or a proscription of an

"In this case [Griswold - jmh], both opinions seemed to concur that the
fundamental right claimed and upheld was derivative of several express
rights and in this case, really, the Ninth Amendment added almost
nothing to the argument. But if there is a claim of a fundamental right
which cannot reasonably be derived from one of the provisions of the
Bill of Rights, even with the Ninth Amendment, how is the Court to
determine, first, that it is fundamental, and second, that it is
protected from abridgment?"

> >.. not that the SC should judge what they are or who got what.
> Marbury.
> The Constitution is meaningless if there is no
> effective mechanism for its interpretation. 

We aren't arguing that.  We are arguing whether the court must
consciously restrict its decisions to the text and what the text meant
at the time it was written rather than impose their ideas of what the
law should be and dress it up by pretending they aren't legislating.

As an example, I'd freeze "cruel and unusual" to the meaning as
understood in the 1790s.  That doesn't mean a legislature can't be more
merciful, only that it need not be.