Monthly Archives: May 2023

Federal Nepal seems to have fully embraced the quintessential feature of Nepali politics: The making and breaking of governments. And if there is one primary reason why there is growing suspicion about the utility of provinces, it is the way politicians and political parties have used them as their puppets. Just as in the centre, the course of political instability out in the provinces is almost never over, which is evident in their failure to find stable governments, or fill their cabinets, six months after the November 2022 elections.

Its the same show all over again: Coalition partners are bickering over the number of ministerial portfolios they should get in the provinces. In Bagmati, only six of the 11 portfolios are filled even as Chief Minister Shalikram Jammakattel holds three ministerial berths due to his failure to honour the wishes of the Nepali Congress and CPN (Unified Socialist). In Madhesh, the Congress, the Unified Socialist and the Loktantrik Samajbadi Party are yet to join the government led by Chief Minister Saroj Kumar Yadav. In Sudurpaschim, four ministerial berths remain vacant as the Congress, the Maoist Centre and the Nagarik Unmukti Party tussle for more positions than Chief Minister Kamal Bahadur Shah is willing to offer.

The instability let loose with the breakup of the UML-Maoist Centre alliance shows no sign of coming to a halt soon even as Finance Minister Prakash Sharan Mahat prepares to present the federal budget in under two weeks. At this time, what the people expect from the provinces is to lobby for a greater say in policies and programmes and budget allocation. But all that they are doing is massaging the egos of the politicians from the provincial and federal levels. Having imported the political cultureor lack thereofof Kathmandu, the provinces have failed to assure the people about their utility for affirmative politics and positive transformation.

This is not the kind of federalism people signed up for when they welcomed the new constitution in 2015. The idea was for the power of Singha Durbar to devolve to the provinces and the local levels so that there would be multiple avenues of addressing peoples concerns. However, six years after the first federal elections, the idea of stability in the provinces remains a pipe dream, just as in the federal centre. This series of instability began after the Nepal Communist Party, formed with the merger of the UML and the Maoist Centre, imploded due to ego- and power-tussles between KP Sharma Oli, Pushpa Kamal Dahal and Madhav Kumar Nepal. As a result, governments in the provinces fell apart, too, in what was a cascading effect. If the disappointment of the first provincial governments after the adoption of federalism was not enough, the instability syndrome lingers on in their second term as well.

Although the idea of embracing federalism was to devolve power to provinces from the all-powerful centre, it seems as if all that has been devolved is the petty, power-centric politics of mainstream parties. On the outside, it may seem as if it is a time of great upheaval in the provinces, but the hullaballoo is nothing but a sign of diminishing spirit of federalism. There should be no surprise if the voices against federalism get more traction in the coming days if the season of instability does not change in the provinces.

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Season of instability - The Kathmandu Post

The open-borders lobby is no stranger to bad-faith reform proposals, abusing the language of fairness as they try to scrap all migration controls entirely. Unfortunately for American citizens, bad ideas frequently come from unusual suspects. Even while acknowledging our Southwestern border crisis, two Republican governors are now among those advocating for a potentially disastrous plan that would wreak havoc on our legal immigrationpolicies.

Governors Eric Holcomb of Indiana and Spencer Cox of Utah endorsed state-sponsored visas in The Washington Post in February, strengthening more recent pushes for this flawed and destructive policy. Their proposal would allow states to sponsor visas (which only the federal government can grant) specifically for immigrants to fill entry-level, low-skill roles in that state. The governors inexplicably present this plan as a solution to both our border crisis and supposed local labor shortages, and business groups hungry for cheap labor to undercut Americans have joined their cause in Newsweek.

The basic premise of this proposal is fatally flawed because states do not exist in isolation and travel between them is unrestricted. Allowing sanctuary states like California to unilaterally admit immigrants into the U.S. undermines the most basic structure of federalism by usurping the federal responsibility to control and regulate immigration. No effective controls exist that would keep those admitted from moving wherever they want in the country, and the proposal would not extend to states the ability to refuse these immigrants. There are no solutions to state-level shortages addressed here because immigration is by its nature not something that can be restricted to one place. State-sponsored admission of low-skill foreign workers could become a backdoor for a few states to flood the rest with un-asked-for competition and crowd out Americancitizens.

In fact, that crowding actually seems to be the desired effect. The American Business Immigration Coalitions use of the nonsense term parole visas in their Newsweek piecebetrays the open-borders cheap labor lobbys true intentions. Immigration parole, intended for very limited uses, is currently being grossly abused without oversight to bring hundreds of thousands of illegal aliens into the U.S. every year (a number the piece incredibly calls very limited) with work authorization. If 360,000 illegal aliens ushered into the U.S. annually by the federal government is a very limited number to the cheap labor lobby, imagine how many millions would be admitted if the parole abuses of the White House extended to state capitols across the country. Cheap illegal alien workers are a huge net drain on the economy, not a benefit, and these governors proposals would actively hurt their American constituents who would be replaced by lower-paid foreign workers.

Bad policies that make U.S. immigration law look weak create a self-perpetuating cycle of illegal immigration, as weve seen throughout the Biden administration. Inadequate enforcement and poorly conceived handouts like this proposal draw, rather than deter, ever more migration to the U.S. and strengthen the pull to the border, while American citizens pay for the incredible expense that these migrants create in our schools and hospitals. American jobs should not be a free-for-all for the lowest bidder, but proposals like this show that the cheap-labor lobby and many politicians would be happy to put American citizens last inline.

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Big Business' New Plan Would Create Fifty New Immigration Policies - Federation for American Immigration Reform

Recent years have seen a flurry of congressional investigations, and state prosecutors have also launched high-profile investigations and prosecutions targeting national figures.

Those trends collided this year after a New York state judge unsealed a 34-count indictment against former President Donald Trump, alleging Trump had falsified business records. Within a week, Republicans on the House Judiciary Committee subpoenaed the testimony of a former assistant district attorney, Mark Pomerantz, who had worked on the case. Manhattan District Attorney Alvin Braggs office promptly sued to quash the subpoena.

Though the parties settled the case, allowing the committee to question Pomerantz, the feud is far from over. At his deposition, Pomerantz reportedly refused to answer questions, invoking various privileges and his Fifth Amendment right against self-incrimination.

The next phase of the conflict between House Republicans, the district attorney, and Pomerantz is unclear, but it seems inevitable the smoldering feud will break back into flames at some point.

And when it does, the resolution will offer important guidance about what limits, if any, there are on Congresss power to probe state criminal investigations. It may also set the template for how House Republicans might respond if Fulton County, Ga. District Attorney Fani Willis announces any charging decisions this summer in her investigation into the 2020 election.

In April, the New York District Attorney sued to enjoin enforcement of the Judiciary Committee subpoena and sought a temporary restraining order, arguing the subpoena exceeded the scope of Congresss authority to investigate, invaded the sovereignty of New York in violation of federalism principles, and sought information subject to privilege and grand jury secrecy requirements. The proffered legislative bases for the subpoena, the district attorneys lawsuit asserted, were pretextual.

Meanwhile, the Judiciary Committee argued the subpoena had a valid legislative purpose because the district attorneys office had used federal money in connection with its investigation of Trump and Trump-related entities, and because the inquiry related to potential legislation. The committee also maintained the lawsuit was precluded by the Constitutions Speech or Debate Clause.

Noting the breadth of Congresss authority to investigate, the district court in New York refused to grant the restraining order, concluding that the subpoena served a valid legislative purpose. The district attorney immediately appealed.

While the appeal was pending, the parties settled, paving the way for the committee to question Pomerantz behind closed doors. Though the exact terms of the settlement were confidential, the committee presumably expected Pomerantz would answer many of its questions, which he didnt.

Pomerantz reportedly justified that refusal by pointing to New York laws that prohibit disclosing grand jury materials or other information about ongoing criminal investigations, along with his Fifth Amendment right against self-incrimination.

With this latest impasse, the committees dispute with the district attorney and Pomerantz may spill back into the courts. The committee may seek a court order forcing Pomerantz to answer specific questionsparticularly if it believes Pomerantzs refusal to answer questions violates the committees settlement agreement with the district attorney. (Because Pomerantz was a nominal defendant in the DAs lawsuit, he presumably participated in settlement discussions and is party to any settlement agreement.)

Or the committee might employ more traditional means for enforcing a congressional subpoena, such as holding Pomerantz in contempt or referring his conduct to the Department of Justice for potential prosecution. The committee might also issue new subpoenas seeking testimony from others in the district attorneys office or subpoena Pomerantz for documents. Any of these paths seems likely to return the dispute to court, triggering many of the same issues raised in the April lawsuit.

How a court resolves that looming dispute could have far-reaching implications. A ruling that Congress has no valid legislative purpose in investigating state-level law enforcement and police activities, or that federalism principles prohibit such an inquiry, would arguably break new legal ground. Although the Constitution largely commits policing and law enforcement to states, Congress often legislates in ways that intersect with states law-enforcement power, and congressional investigations have occasionally examined state-level policing.

At the same time, a ruling categorically approving congressional probes into ongoing state criminal proceedings could have equally serious consequences. Prosecutors and witnesses in criminal cases operate on the assumption that, at least before trial, their communications will be confidential. Allowing Congress to access or publish those communications may discourage witnesses from cooperating with prosecutors out of fear that they may become political targets. It may also influence how prosecutors evaluate or charge cases that might be unpopular with the majority party in Congress.

Apart from any court ruling, how House Republicans respond to Pomerantzs refusal to answer questions will have immediate practical consequences. Fulton County District Attorney Willis has promised to announce any charging decisions this summer. Her office will no doubt watch whether House Republicans move to force Pomerantz to answer questions, or issue additional subpoenas to state prosecutors. Georgia prosecutors may already be taking steps to insulate investigative materials from future congressional inquiries. And House Republicans are likely also using the dispute with the Manhattan District Attorney to fine-tune their strategy ahead of the prospective conflict with Georgia investigators.

The conflict between House Republicans and the Manhattan District Attorney is likely the first in a string of showdowns between Congress and state prosecutors. How that dispute is resolved will influence how both Congress and state prosecutors approach future conflicts, and may even establish important precedent on the limits of congressional investigations generally.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Eric R. Nitz is a partner and Kenneth E. Notter an associate at MoloLamken. They represent companies and individuals in connection with investigations of all typescriminal, congressional, and regulatory.

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Trump Indictment Tests Congress's Role in State Investigations - Bloomberg Law

MADISON - The Republican author of a bill that would overhaul the state's abortion law says a Senate leader is "squashing debate" on a bill she and a group of GOP lawmakers introduced this spring that would allow doctors to provide abortions to victims of rape and incest a policy change most Wisconsin residents support.

Sen. Mary Felzkowski and more than two dozen Republican lawmakers introduced legislation in April that would create exceptions to the state's 19th-century near-total abortion ban for pregnancies resulting from sexual assault, incest and in situations when the mother is experiencing serious pregnancy complications.

Democratic Gov. Tony Evers immediately said he would not sign legislation that would keep in place the state's abortion law, a move that could jeopardize a lawsuit he and Democratic Attorney General Josh Kaul launched in 2022 to invalidate the law that is still in court. Senate Majority Leader Devin LeMahieu also said at the time that his caucus wouldn't take a floor vote on the bill because of Evers' position.

This week, Senate President Chris Kapenga assigned the bill to a committee led by GOP Sen. Andre Jacque, who has authored dozens of bills that would restrict abortion access including one that would bar public officials from even promoting the idea of abortion.

I'm very disappointed. Very disappointed in what Sen. Kapenga did as Senate president. I think it squashes conversation. And I think it's a very sad day when he's afraid to let his duly elected members have a discussion," Felzkowski told the Milwaukee Journal Sentinel on Thursday.

Earlier, Felzkowski issued a public statement calling the assignment of the bill to a committee that does not oversee health issues "perplexing." Jacque heads the Senate Committee on Licensing, Constitution and Federalism.

It disappoints me that the Senate President doesnt trust his own caucus members, assigned to their committees of interest and expertise, to debate this issue fairly. Im concerned that open, honest debate is being silenced by one member of our caucus," she said.

A spokeswoman for Kapenga did not immediately respond to a request for comment. Aides to Rep. Clint Moses, who oversees a committee where the Assembly version of the bill has been assigned, did not immediately say whether Moses plans to hold a public hearing on the bill.

The move to introduce a bill that expands access to abortion by Felzkowski and Assembly Speaker Robin Vos came during a nationallyscrutinized race for a seat on the state Supreme Courtthat revolved around the future of the state's abortion ban and despite a promise from Evers to veto such legislation in order topreserve the lawsuithe launched to overturn the state's abortion law altogether.

Vos, a Republican from Rochester, said in March Republicans were moving the legislation forward anyway because hewants the state Legislature to handle abortion policyinstead of turning the state's highest court into a "super Legislature."

"I'm an optimist. I think that eventually people will realize that the right way to do it is through the traditional process, not through a super Legislature, the state Supreme Court, but hopefully the voters agree," he said before liberal Milwaukee County Judge Janet Protasiewicz defeated conservative former Supreme Court Justice Dan Kelly by double digits largely on a platform of restoring abortion access in Wisconsin.

According to recent state polling by the Marquette University Law School, the vast majority of Wisconsin voters want exceptions to the state's 1849 abortion law.

The state's abortion ban wasput back into effect in 2022when the U.S. Supreme Court overturned Roe v. Wade, allowing states to set their own abortion policies. That move pushed Kaul and Evers tofile a lawsuitto overturn the law altogether.

More: Wisconsin's 1849 abortion law goes before the courts next week. Here's what happens if it is overturned.

Whether the 1849 law is enforceable is at issue in the lawsuit. Republican lawmakers, abortion opponents and conservative legal experts say the law is now in effect. But nonpartisan attorneys for the state Legislature, Democratic lawmakers, and supporters of abortion access say potential and expected legal challenges muddy the answer to the question.

Practically,abortions have not been available in Wisconsinsince the ruling given the legal uncertainty and the state ban in statute.The debate has become central to political campaigns since then, including the 2022 governor's race and the spring race for state Supreme Court.

Senate leaders' opposition to advancing the bill came as anti-abortion lobbying groups blasted the proposal from Felzkowski, Vos, and others.

Matt Sande, Pro-Life Wisconsin Legislative Director, said in March any legislation that allows abortions "is incapable of being justified."

"A vote to add more exceptions to Wisconsins abortion ban is a vote to kill more preborn babies. It is that simple," he said. "It is always and everywhere wrong, regardless of motivation or consequence. It may never be employed, even in the narrowest of circumstances, as a means to a greater end."

Under the legislation, doctors face felony charges if they perform abortions except in situations involving victims of sexual assault and incest during the first trimester of a pregnancy, when women experience an anembryonic, molar or ectopic pregnancy, and in any circumstance in which the fetus has no chance of survival, including a physical condition of the fetus that makes survival outside of the uterus impossible.

"We are empowering the moms and the fathers who are trying to have children to work with their medical providers to make sure that they have the healthiest viable baby and that mom's life is protected in the process," Felzkowski said in March at a Capitol press conference.

The bill clarifies that the law's criminal penalties don't apply to a "therapeutic abortion" that physicians believe is necessary or advised by two other physicians as necessary, to save the life of a mother, or to avoid substantial and irreversible physical impairment of a major bodily function of the mother. Doctors also are not banned from performing abortions to remove a fetus without a heartbeat.

The state's revived abortion ban, which outlaws all abortions unless the mother will die without one, has made Wisconsin a less-attractive state to practice in the field of reproductive health, according to OB-GYN experts, potentially leading to a medical workforce less experienced at handlingmiscarriages and otherreproductive procedures.

Abortion restrictions will also have downstream effects on the states physician labor force as a whole, not only influencing where OB/GYN doctorschoose to live and workbut shaping the decisions of doctors training or practicing in other specialties, too, according to Jenny Higgins, a UW-Madison professor of obstetrics and gynecology and gender and womens studies.

Kathryn Ann Dielentheis, an assistant professor in the Department of Obstetrics and Gynecology at the Medical College of Wisconsin who practices at Froedtert Health, said earlier this year that since Roe v. Wade was overturned, she has observed some fear within the Wisconsin medical community treating pregnant women of not meeting the letter of law when making treatment decisions when patients experience complications like ectopic pregnancies.

Evers has pledged not to sign a new abortion law "that leaves Wisconsin women with fewer rights and freedoms" than before the U.S. Supreme Court ruling. Before then, doctors could perform abortions up until about 20 weeks of pregnancy. Evers has said he would sign a bill that puts back into effect a 20-week ban on abortions.

Vos said in March there were enough Republican votes to pass the bill out of the Assembly but it is all but certain to not get to Evers' desk with LeMahieu's promise to keep the bill off the Senate floor.

Democratic lawmakers also have rejected the idea of keeping in place the 1849 abortion law.

"I, like the majority of Wisconsinites, believe that we must repeal the state's 1849 criminal abortion ban and restore the rights, liberties, and freedoms that were afforded to women under Roe. There is absolutely no room for a politician in the doctor's office of any individual," Senate Minority Leader Melissa Agard, D-Madiosn, said in a statement.

Agard said Republicans "are simply flailing" after losing the 2022 governor's race and other midterm races, in part, because of their stance on abortion following the U.S. Supreme Court ruling.

Any legislation that does not provide a woman with autonomy of her own body and her own healthcare decisions is a nonstarter for my caucus," she said.

LeMahieu said in January he supports clarifying the law to address uncertainty on the part of doctors in situations involving complications like ectopic pregnancies, which can require abortion procedures to address before a woman's health is at risk.

Vos also previously said he would support requiring victims of rape to show doctors a police report before they could obtain an abortion but Wednesday's legislation does not include such a requirement.

Laura Schulte of the Milwaukee Journal Sentinel contributed to this report.

Molly Beck can be reached at molly.beck@jrn.com.

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Senator decries move to block bill loosening Wisconsin abortion law - Milwaukee Journal Sentinel

ANI | Updated: May 20, 2023 17:43 IST

New Delhi [India], May 20 (ANI): Joining the Delhi government in severely criticising the Centre for issuing the ordinance related to Delhi officers' transfer, Congress leader Abhishek Manu Singhvi on Saturday alleged that the Centre is just 'illegally buying more time'.Further recalling the basic constitutional working, the Congress leader, who is also an advocate, called it an 'unconstitutional ordinance' and said that Constitutional principles can only be changed by Constitutional amendments, and not by ordinance."Absolutely unconstitutional ordinance. Constitutional principles cannot be changed by ordinance. They can only be changed by Constitutional amendments. You have done something unconstitutional knowingly. You have also illegally bought time," Singhvi said while talking to ANI.

The criticism came after the Centre issued an ordinance to create National Capital Civil Service Authority, which will be responsible for transferring and disciplinary proceedings against officers from the DANICS cadre. The Union Government on Friday brought an ordinance to notify rules for the Government of National Capital Territory of Delhi (GNCTD) regarding the 'transfer posting, vigilance and other incidental matters'.The ordinance has been brought to amend the Government of the National Capital Territory of Delhi Act, 1991 and it circumvents the SC judgement in the Centre vs Delhi case.Aam Aadmi Party leader Raghav Chadha also slammed the Centre saying that the move is not just "contempt of court" but also "contempt of the electorate".Taking to Twitter he said, "To overturn a well-thought-out, unanimous Constitution Bench judgment by a reckless political Ordinance, in complete violation of 1. Federalism: part of the basic structure of the Constitution 2. Constitutional Powers given to Elected Governments 3. The principle of Accountability of Civil Services to Ministers is not just Contempt of Court but also Contempt of the Electorate." (ANI)

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"Illegally buying time": Congress leader Abhishek Singhvi chastises ... - ANI News

You might call this post "The Big Mac." I'm getting to the meat of the issue: What rights do Baby Ninths protect, and how do these state constitutional provisions protect those rights?

You can see the previous three in this series here, here, and here, all of which summarize my new book from the University of Michigan Press, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters (available for free here).

First let's take a 30,000 foot view of what we're talking about: a specific type of provision with specific words with variants in thirty-three state constitutions. We are not talking about "rights" generally or what we would put in a constitution ourselves. You could imagine a state constitution that says something like everyone has a right to "a minimum annual income." Or "adequate housing." Or even something wide-open like "what one needs to live a fulfilling life." For various reasons I think those provisions would be bad. But if they were in a constitution, you would have to admit they were "constitutional rights." Indeed, some fellow libertarians may not like this, but many state constitutions already make a state provided primary education a right. What the text says matters.

With that level-setting, let's look at what Baby Ninths protect. For guidance, we're first going to see what various scholars have said about the Ninth Amendment itself. Since the text is always very similar between the Ninth and Baby Ninths, this will hopefully give us a good start.

VC member Randy Barnett once helpfully organized five various originalist "models" about what the Ninth Amendment meant when it was adopted. I take those five approaches in my book, plus a more recent oneof Professor Michael McConnelland apply them to Baby Ninths. I don't take sides in the book on their merits vis--vis the Ninth, but I argue that none of them make sense when interpreting a Baby Ninth other than the "individual rights model."

Some of themsuch as the "federalism model" and the "state law rights model"don't for obvious reasons. For one thing there's no "federalism" to worry about. The others models don't work either, including the "collective rights model." Although it has received a small bit of support in the caselaw, it doesn't work because the "collective rights" of the people of a state are elsewhere provided for in a state constitution via the legislature and via the constitutional amendment/convention process. Believing that Baby Ninths protect collective rights is to believe that Rube Goldberg designed your state constitution.

I also look at non-originalist views of the Ninth Amendment and conclude they don't hold up either to the extent they are inconsistent with protecting individual rights. Baby Ninths only make sense if they're actually doing somethingprotecting rightsand if the rights they're protecting are individual rights.

That still leaves open what kind of individual rights Baby Ninths protect. Indeed, turning back to the Ninth Amendment for a moment, both Professor Barnett and my former teacher Professor Dan Farber believe the Ninth Amendment itself protects individual rights, but they disagree on what those rights are. (Barnett: "yes" on personal and economic rights, "no" on positive right to an education. Farber: the opposite, except also "yes" on personal.)

In speaking with others, I find that this is the issue that scares many conservatives. "Oh my goodness, judges could just impose any right they want!" Well, if a state constitution actually said that then, yeah, judges could. Again, we're talking here about what constitutions say and mean, not what they should say and mean. But that's not the case because of how Baby Ninths are written.

Let's look at one, Nevada's: "This enumeration of rights shall not be construed to impair or deny others retained by the people." The key word here is "retained." What does that mean? It is inherently a term of social contract theory. You may believe the whole idea of a social contract is made up (indeed, I agree!) and even a terrible way of looking at rights and society. But it's the background for interpreting this languageand for lots of other language in state constitutions. As Roger Pilon recently put it in this lecture, it's a useful thought experiment. It helps us conceptualize the liberties we possess as individuals versus how we interact with other people.

"Retained" refers to the idea that we have certain rights in a state of nature but that when we form a society, we give up some but not all of those rights. Now, it could be that when we form a social contract we give up all of our rights, like with Thomas Hobbes' Leviathan. But (for good reason!) no state constitution has even gone the way of Hobbes. Americans have wisely sided with Locke.

You could make the case that "retained" just means rights people had at the time the relevant constitution was adopted. But I dig into this idea in the book and find it leads to absurd results. For example, why wouldn't it then encompass statutory rights? What if there were some odd statute that provided a positive "right"I give the example of a right to have a ponythat existed right before the constitution was adopted. Could it then never be repealed? Instead, the much better reading of Baby Ninths is to simply treat them as protections of Lockean "state of nature" rights.

That means that Baby Ninths protect rights such as the examples I gave in Part I that our friend Jane enjoyed: the right to earn a living, right to garden, right to eat what you want, right to collect stamps, etc. It does not include positive rightsthe right to demand that others (including the government) give you stuff or do things for you. And that includes procedural rights, such as a right to a jury trial or a right to see evidence used against you. Now, those are important rights! But they're protected through other language, such as specifically in the Sixth Amendment, or other kinds of open language such as "due process of law."

At this point some skeptical readers may be thinking: "He's arguing Baby Ninths allow people to do anything they want as long as they don't violate someone else's rights, as if they guarantee a nightwatchman state." And you might quip that "state constitutions do not enact Mr. John Locke's Social Contract," to steal a phrase.

In response, first, I do not claim Baby Ninths must be interpreted through the exact wording of Locke's philosophy. It's just the idea of giving up some rights but retaining others that needs to be kept in mind. Those "some" are few (the right to retribution most importantly), the "retained" are many. Second, I do not claim that the government cannot do anything that regulates "retained" rights. I only claim that they must be protected at the same level (deny/disparage/impair) as enumerated rights and, thus, given some degree of real protection. When we think about free speech or religion, for example, we recognize that there are things the government can do in order to pursue legitimate public purposes even if they bump up against those rights. They're not absolute. The same is true for the right to earn a living or the right to garden.

How does this work in practice? More on that in Part V tomorrow, plus some big picture thoughts. But basically, judges need to take Baby Ninth rights seriously. In constitutional-law-speak, that means they don't need to apply strict scrutiny, but they do need to apply some real scrutinynot the rational basis test.

The rest is here:

Baby Ninth Amendments Part IV: All the Rights but Not ALL the Rights - Reason