Wednesday, April 30, 2008

The Ninth Amendment dogface mambo

The Ninth Amendment, huh? (anybody still there?). There is nothing like a dry dissertation on this subject to drive folks away or into deep, deep slumber. And I did say earlier in the comment section that I wasn't going to go there. But then I read an intriguing comment from my friend Kevin, who takes issue with originalist interpreters of the Constitution like Justice Scalia, and charges that they "completely ignore" the Ninth Amendment. Kevin challenges, "Read it again. It is the most simple of the amendments. It means exactly what it says."

OK, I'll try. Here goes.

The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.

Hmmmm. Let's see. Errrr. IS IT...! Nah... Nope. Missed it. Never mind.

Let's try it this way. If I perceive I have a right to defecate in your flower garden, is that covered? Certainly you wouldn't begrudge me this necessary bodily function. You will admit that I have a right to expunge impurities, do you not? It would be unhealthy not to! And wouldn't the results of this natural act benefit the flowers? Yet, this right is not enumerated in the Constitutional.

As they say, the devil is in the details (and in the interpretation).

For newer readers of this blog who may not know, Kevin and I go back a few years. We both live in the city of Davison, Michigan, the birthplace of Michael Moore. Kevin was actively seeking to get road signs at the city limits in honor of Moore, and I was not. (My side is still winning that one).

So Kevin and I have occasional disagreements. Yet at the end of the day, I know him to be a good and decent family man. Maybe he is my "Bob Beckel" or I am his "Cal Thomas". I zig, he zags. I say "conservative" and he says "liberal" (actually, he says "progressive", because it sounds more palatable than the understandable negative conotations associated with liberalism). I say "strict constructionism" and he says "judicial activism". I say "Pro life" and he says "kill 'em all and stack those dead babies like so much cordwood!" (or something to that same effect).

Anyway, I have a theory on this Ninth Amendment thingy. I think we have all been "Gern Blanston-ed". Those old enough (and similarly obsessed) will get the reference and remember the old Steve Martin bit on his "Comedy is Not Pretty" album, where Martin insisted his real name was "Gern Blanston".

Steve Martin also did a bit on "Wild and Crazy Guy" (yes, this is going somewhere. I think). It's a great trick to play on a 3-year-old, Steve says. "Every time you're around them, talk wrong." Then on their first day in school, they raise their hand and ask the teacher, "May I mambo dogface in the banana patch?"

Hey, it was the '70's. You had to be there.

So here is what I'm thinking. The founding fathers were having a little fun with us by hiding that Ninth Amendment in there amongst all the stuffy prim and proper Amendments. Sort of like a two and a half century old whoopie cushion! In fact, had they thought of it first, the Ninth Amendment may have read this way:

The mambo dogface in the banana patch of certain rights, shall not be construed to deny or disparage others retained by the people... And I want to massage your grandmother.

I believe the founding fathers were collectively very smart men who dreamed up a perfect concept, yet they were imperfect vessels to carry out this perfection, as are we all.

One last request for Kevin. You say you proclaim to possess unparalleled powers of interpretation, and you have this Ninth Amendment thingy figured out (I assume, since you inferred it but never explained), would you help me understand the meaning of this Edward Lear classic...


  1. Odd you would make the "begrudging bodily functions" with Jen our Guv havin her issues today...

    Maybe just kismet...

  2. You guys will have to go see David Zucker's "American Carol" together this fall. A little tale about "Michael Malone" and what happens when he confronts his past, present and future.

  3. Do "the people" hold the right to do a dooty in my flower garden dear to their collective hearts?

    No, but do they hold privacy dear? Yep. And no, I'm not talking 'privacy' as a legal euphamism (sp?) but PRIVACY.

    The good Justice doesn't think a right to privacy exists, yet oddly he citing it in a reason for not allowing cameras in his courtroom in an interview recently. I think that with 21st century technology, we sure as hell better have a right to privacy. Most Americans would agree, and the Ninth says its worth protecting, in spite of its ommission from Amendments 1-8.

    Oh, and I don't care if you call me a liberal, a progressive, or a card carrying member of the ACLU. I prefer "Kevin", though.

    I couldn't watch the vid you provide. This truck stop internet kiosk sucks.

  4. In everything, balance. Even the unenumerated right to privacy. What would happen if you put the right of "privacy" on one side of the justice scale, and the right to "LIFE" on the other side? Most reasonable people would have to admit that a life is more important. It is going to tip the scales in it's favor, no question. Therefore, if I was a judicial activist and wanted the opposite outcome in advance, I'd have to do something radical, would't I? I'd have to re-define life. NOW the scales work! MY privacy is much more important than this globule of tissue mass, wouldn't you agree?

    again, it's in the interpretation. I happen to believe that the looser you make the Constitution as a living and breathing document, the less it's reason for existance.