From: sunder@grusin.crhc.uiuc.edu (Srinivas Sunder)
Newsgroups: soc.culture.indian
Subject: Re: Article 30 of the Indian Constitution
Date: 11 Jan 1993 21:45:48 GMT
Organization: Center for Reliable and High-Performance Computing, University of Illinois at Urbana-Champaign
Distribution: world
NNTP-Posting-Host: grusin.crhc.uiuc.edu

In article <1isnnoINNg5a@function.mps.ohio-state.edu>, vidynath@math.ohio-state.edu (Vidhyanath K Rao) writes:
|> There must be a group (misc.*.legal?) where this must be cross-posted but
|> my trn refuses list any such group
|> 
|> In article <1iqd0jINNb6e@roundup.crhc.uiuc.edu> sunder@grusin.crhc.uiuc.edu (Srinivas Sunder) writes:
|> >It must be noted here that the 9th Amendment here has almost NEVER been used
|> >by the Supreme Court to protect anyone's right.
|> 
|> Under what law was the restriction of sale of contraceptives found to be
|> unconstitutional? (I believe that this was either Grunwald vs Connecticut or
|> a decision which overturned it.)  What is all the brouhaha over the
|> "penumbra" of constitutionally protected rights?

Griswold v Connecticut is what you want. There WAS talk about penumbrae and
the like, to be sure, but never an explicit mention of the 9th Amendment, if
I remember right. Griswold is part of the same legal and constitutional 
family-tree as Roe v Wade, and given that the SC used the 14th Amendment
protection of "...liberty..." to justify their decision in Roe, it is my
guess that the 14th was what was invoked there too, and it was probably
the "penumbras from emanations" of those liberties that whoever wrote the
decision (Douglas, I think) then was talking about.
 

|> >it is very difficult to define what they mean by  "rights not enumerated" in
|> >the Constitution. 
|> 
|> That is the common complaint of the right wing, but that has not stopped the
|> Warren and Burger courts.

Actually, what the right-wing complains about is NOT that non-enumerated rights
are difficult to pinpoint, but that the interpretation of enumerated rights 
itself by the Warren & Burger courts is faulty. The 9th Amendment itself has 
never been a focal point of legal controversy.


|> My questions are "Should India have such a provision in its constitution?"

A better idea would be to change the line of thought that only the State grants
rights and any rights not explicitly granted do not exist. If we assume instead
that all rights are available to all people from birth onwards, and give the state
authority to restrict only those rights not explicitly protected Constitutionally
(i.e. the Fundemantal Rights), we will be fine. That way, Art. 30 can exist and
be interpreted as merely the Constitution-drafters intending to ensure that the
majority could not prevent minorities from establishing and running their own
institutions, as an extra clarification to the meaning of the Right to Freedom
of Religion; and the majority, not being explicitly barred from running their
own institutions, can do the same.


-- 
Srinivas Sunder                                         sunder@crhc.uiuc.edu

If my employer shares these views, I'd be most surprised.
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