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

Strict construction maxims:
Potestas stricte interpretatur: A power is strictly interpreted.
In dubiis, non praesumitur pro potentia: In cases of doubt, the presumption is not in favor of a power.

But if they are not bound by the text of the Constition in discovery of rights, they may discover rights to a smoke-free workplace or any of the others on my earlier list; rights which demand government enforcement instead of protecting people from enforcement.

But if they are bound by the strict text of the constitution in that way, then the rights you have which are actually protected by the Constitution are virtually nonexistent.

OK, what is it that makes the justices unable to do anything, but only to undo things done by some other branch?

Because that’s pretty much how it is right now. I’m not calling for that to be changed. Actually, all I’m calling for is a minor tweak to the way the courts have historically operated. I guess that’s why your gloom-and-doom examples ring hollow for me.

You talk about them being bound by the text of the Constitution, and I’m not arguing against this. You seem to think that I am. I’m merely allowing them some wiggle room where the Constitution itself leaves wiggle-room (as in the ninth amendment, the definition of “cruel and unusual,” etc.). That, to me, seems to be the only viable alternative to specifically enumerating every basic right, which you’ve argued is folly.

It may not seem like it, but I’m mostly arguing for the status quo. No “vast incerease of power,” only a semi-fluid framework within which they can base their decisions. I’d grant them no more power than they have today. And I wouldn’t give them the authority to ever directly contradict the text of the Constitution; I would give them the authority to fill in the blanks a bit, as previously mentioned.

As to your proposed amendment, given the scope of what I’m suggesting, and how it compares to what we have right now, I don’t think any such amendment is necessary. And I do see the potential need, in extreme cases, for the courts to have the authority to order short-term (non-permanent) remedies, as in desegregation, for example.

To try to make this concern a little more clear, by giving the power to find unenumerated rights by means of interpretation to the SC, you increase their power; as Kevin put in a discussion on corruption, their opportunity and incentive. In the past, they have been considered bound to the text of the Constitution, which affords little ground for discovery of positive rights, which are the area where they can do things rather than undoing things. One example (which is a good positive right) is reinterpretation of the Sixth Amendment, right to counsel in court, to mean not just that counsel could not be forbidden, but that it must be provided. But if they are not bound by the text of the Constition in discovery of rights, they may discover rights to a smoke-free workplace or any of the others on my earlier list; rights which demand government enforcement instead of protecting people from enforcement.

The whole purpose of the SC is to interpret the law as written, and that is the really the only limit on the power of their branch of government (coming back to elections and accountability). I don’t want them to be subject to the whims of the election cycle any more than you, but neither to I want to vastly increase the power of the unelected branch.

Here’s another alternative: an amendment explicitly allowing the federal SC to find unenumerated rights and apply them to the states and localities, but only to order government inaction, never government action.

Allowing state and federal Constitutions to be amended (reinterpret the federal, federal overrides state) by a 56% majority of nine carefully selected unaccountable people;

That’s rather an odd way of putting it, given that I’ve already stated I would support a formal removal process for justices, and given the fact that I’ve repeatedly asserted that justices cannot do anything, but only undo things (in whole or in part) done by some other branch of government.

And telling them very solemnly that they are to use this power to protect unenumerated rights.

Here, I think, we need to take a step back. In your view, why is the ninth amendment there? Why even bother with unenumerated rights?

The problem I see with your point of view is that by your admission, there are too many fundamental rights to enumerate, and as I’ve been trying to demonstrate, strict limits on federal power alone are not enough to adequately protect those rights.

As to your suggestion, I’m not sure I understand it well enough to intelligently comment.

But to get you closer to understanding my point of view, note that court decisions handed down in my method (overriding other branches) are almost never of the form “you must do this,” but rather are of the form “you can’t do this.” The court cannot create law where before there was none; it can only strike down what it determines to be unjust laws that some legislative body enacted.

As far as accountability is concerned, I’m kind of with the framers on that one: I don’t want justices to be directly subject to the whims of the electorate. They’re supposed to be taking the long view, rather than simply looking to the next election cycle. That said, I would support formalizing some sort of “impeachment” process for extreme cases. And as noted before, I also favor putting the accountability on the front end, by having nominees actually answer the tough questions before them.

And by requiring two-thirds approval for justices, you minimize the possibility of a slim majority by one party or the other resulting in the approval of highly partisan justices. (It remains to be seen whether Roberts and Alito will turn out as such, but I’m not optimistic based on what I’ve seen of Roberts so far…)

Now, your proposed solution appears to me to amount, in practice, to this:
Allowing state and federal Constitutions to be amended (reinterpret the federal, federal overrides state) by a 56% majority of nine carefully selected unaccountable people;
And telling them very solemnly that they are to use this power to protect unenumerated rights. (Admittedly orginalist/textualist/strict constructionist also amount to telling them very solemnly to do it that way.)
Perhaps I’m misunderstanding this too?

As an alternative, how about a federal amendment allowing state or federal Supreme Courts to hold state or federal laws or enforcement actions in violation of the rights of citizens in their jurisdiction? That would allow the federal SC to void a poll tax in Alabama, and the Pennsylvania SC to void a federal law requiring the return of escaped slaves, or the Texas SC to tell the ATF to go home.

It wouldn’t have worked for Emancipation. But as far as I see the main defect now is that it could prevent federal intervention in cases where mobs or gangs have the sympathy of the state SC. Historically though, mobs or gangs are the least of our worries.

I think maybe this is the core area where I’m not getting you. If the legislature of State X decides that, the state Supreme Court stops them based on a strict constructionist interpretation of their state Constitution.

Yep, that’s where you’re not getting me. As recent state-level anti-gay-marriage amendments have shown, amending state Constitutions generally isn’t that difficult. So, in your example, instead of the legislature of State X doing it, imagine state X amending its constitution to do that. I contend that there’s nothing to prevent this, and I contend that there ought to be something preventing this (or, at the very least, requiring amendment to be at least as difficult as at the federal level).

In the federal constitution, you need two-thirds of both houses of the legislature to approve it, and then three-fourths of the state legislatures have to approve it before it can be ratified.

At the state level, the bar is generally much lower. In Alabama, for example, three-fifths (60%) of both houses must approve, at which point a simple majority in general election can ratify the amendment. It’s easy enough that Alabama has a staggering 772 (!) amedments. No, I didn’t double-clutch the “7″

So with 60% of the legislature and 51% of the electorate (actually, 50.01% of those who show up to vote), the state of Alabama could ban non-Christian religious practice under a strict constructionist interpretation of the federal constitution.

That’s what I’m claiming could (and would) happen (even if not that specific example), and that’s what I think shouldn’t be allowed to happen. Religious liberty is a basic right, and no government — state, federal, or otherwise — should be able to infringe upon that right without overwhelming public and legislative support.

“If State X decided to criminalize religious exercise, for example, under a strict constructionist interpretation of the Constitution, State X could do so.”

I think maybe this is the core area where I’m not getting you. If the legislature of State X decides that, the state Supreme Court stops them based on a strict constructionist interpretation of their state Constitution. It seems to me like you think the protection is federal or nonexistent. Could you maybe elaborate in that area? Thanks for your patience; clearly this issue is very important to both of us.