Comments on: Cert. Grant: Do Prisoners Have a Right to Use New Technology To Prove Their Innocence? http://law.marquette.edu/facultyblog/2008/11/03/cert-grant-do-prisoners-have-a-right-to-use-new-technology-to-prove-their-innocence/ Sun, 22 Nov 2009 06:27:59 -0600 http://wordpress.org/?v=2.8.4 hourly 1 By: Sean Samis http://law.marquette.edu/facultyblog/2008/11/03/cert-grant-do-prisoners-have-a-right-to-use-new-technology-to-prove-their-innocence/comment-page-1/#comment-1097 Sean Samis Mon, 03 Nov 2008 19:56:06 +0000 http://law.marquette.edu/facultyblog/?p=1737#comment-1097 Regarding "formalists on the Court have a hard time swallowing any constitutional rights that are not spelled out in explicit detail in the text of the Constitution": How do formalists square this requirement with the Ninth Amendment, which both implies the existence of constitutional rights not spelled out in the text and commands their protection? It is a problem that the Framers did not explain how to determine which putative rights they sought to protect, but perhaps that indicates that the Framers were not formalists. Regarding “formalists on the Court have a hard time swallowing any constitutional rights that are not spelled out in explicit detail in the text of the Constitution”:

How do formalists square this requirement with the Ninth Amendment, which both implies the existence of constitutional rights not spelled out in the text and commands their protection?

It is a problem that the Framers did not explain how to determine which putative rights they sought to protect, but perhaps that indicates that the Framers were not formalists.

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