I am strongly pro individual rights versus group rights. We often think of the U.S. Constitution as limiting the power of the federal government - and it does. But what is the federal government other than the will of the majority? Our forefathers knew that giving too much power to any group was a bad idea and that individual liberties must reign supreme for there to be true balance and justice.
Unfortunately, these ideas failed from the very beginning. Slavery was never constitutional and should not have required a constitutional amendment to outlaw it. However, the special interest of white southern farmers carried more weight than the individual liberties of the black slaves and as a result several supreme court decisions upheld the ugly practice. If the courts had managed to rise above their own selfish special interest they might have put an end to slavery without a civil war. But we are human beings and we have a difficult time letting go of power.
I believe that any "rights" case before any court should begin with a statement such as "the state has chosen to infringe upon the people's right to "x" in order to protect the rights to "x" of others. That is what the courts are supposed to be doing - balancing rights.
The federal constitution gives no authority to the federal government to enumerate the unenumerated rights. So, for a federal court to say that a right exits (other than those enumerated in the constitution) or does not exist is to assume a power not granted to it - the power of enumeration of unenumerated rights. Since it was not granted to the federal government then it belongs to the states or the people as per the 10th amendment. The states get their authority from their respective constitutions and no state constitution that I know of grants this authority to the state. In fact, every state constitution that I have looked at specifically leaves the power of enumeration of unenumerated rights in the hands of the people.
So, do you have a right to.... "whatever". The answer is yes. The question in any court should be "is the infringement by the majority upon the right justified" in that it is needed to protect the rights of others. Perhaps the infringement goes to far and the balance of rights could be acheived with less infringment.
For instance, in my home state of Alabama the majority made it illegal to sell adult sex toys in 1998. The 11th circuit court of appeals decided that Alabama could continue to enforce this law since there was no right to sexual privacy in the constitution. This was a bad decision in which the 11th court took upon itself the power of enumeration of unenumerated rights. This should have never happened.
The case should have been presented before the 11th Circuit Court as "The state of Alabama infringes upon the people's right to sell adult sex toys in order to protect the right of the people to not be exposed to sexually offensive items and ads". Then the 11th Circuit Court could have made a decision as to whether this infringement was justified or not, or if the "protections" the state sought could have been achieved with less of an infringement. This would have been well within the constitutional authority of the courts.
Another example would be Roe V. Wade, the famous abortion rights decision. The courts decided that a woman has the right to an abortion but not as an unenumerated right under the 9th amendment but as a right to privacy under the due process clause. In fact, one supreme court justice specifically stated that the 9th amendment does not create federally enforceable rights in his separate supporting decision. The case should have been presented as the state infringing upon Roe's right to abortion in order to protect all the rights of the fetus. This would be a constitutionally valid argument.
The courts have long held that the 9th amendment is basically meaningless, essentially gutting it from the constitution. This is how special interest has managed to acheive so much power in this country. Your individual liberties don't matter unless they have been specifically granted to you by the constitution - which is exactly what the 9th amendment attempted to prevent.
This is my political philosophy
