Which Action Would Be Protected by the Ninth Amendment
The Abortion Opinion and the Ninth Amendment
The purpose of the Constitution is to limit the power of authorities to interfere with our rights.
“The enumeration of the Constitution, of sure rights, shall not be construed to deny or disparage others retained by the people.”That’s the 9th Amendment. It’s a dead letter in jurisprudence, perhaps because taking it seriously would hobble the federal regime in myriad respects. But if I were looking in the Constitution for abortion rights, and much more more often than not for the right to privacy, I’d start right at that place.
One of the few instances in which “anti-disparagement” has been applied by the Supreme Courtroom was Justice Arthur Goldberg’s concurring stance in Griswold, the 1965 decision that held that neither states nor the federal government tin can restrict admission to birth control. “To concord that a correct so basic and fundamental and and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words past the first eight amendments to the Constitution is to ignore the Ninth Amendment, and to give information technology no effect whatsoever,” Goldberg wrote.
If Goldberg’due south estimation had held sway, Roe might’ve been decided on a less vulnerable ground, and the “unenumerated” rights of Americans might exist better protected. They ought to be. I’ve been glad to hear, from people such as Elena Kagan and Ketanji Brown-Jackson, that some version of “originalism” or “textualism” is the consensus view of Constitutional estimation these days. If we’re trying to figure out what the Constitution means, there’south no plausible alternative to trying to effigy out what the people who wrote it and ratified it thought information technology meant, and how the words in it were used, circa 1787.
That doesn’t make the certificate irrelevant to matters information technology doesn’t explicitly mention, or that couldn’t have been explicitly mentioned in 1787. In the draft decision, Samuel Alito points out several times that “the Constitution makes no reference to abortion,” every bit though that decided the matter, more or less. Then he argues that the right to ballgame care and mayhap the correct to privacy, isn’t implicitly contained in any provision. To all of which, I say: yep it is, right at that place in the Ninth Amendment, which, if the Court had paid any attention to it all these years, would exist second in importance only to the Offset.
There’due south no mention of abortion in the Constitution. There’due south no mention of marriage. What I’d conclude from the Ninth Amendment, and from the expressed intent of the Constitution as a whole, is that you take the right to finish a pregnancy, or marry whomever you lot delight, until such time as state governments institute laws restricting you. But when they do, they’ll be in violation of the 14th Subpoena, which prohibits states from making laws which strip their citizens of rights guaranteed nether the Constitution.
The Bill of Rights was added to the Constitution over the objections of many of the certificate’s proponents, including, initially, those of James Madison, who ended up changing his heed and drafting it, substantially because he didn’t remember the Constitution could be ratified without information technology, equally it shouldn’t and probably would not have been. Madison’s worry, and that of a number of others, was that if they enumerated a list of protected rights, this would be construed past officials and courts every bit saying that people had no other rights.
But the Constitution’s enumerated rights are, as the framers understood, not adequate to prevent continual regime interference in matters that ought to remain within the zone of personal autonomy or family decision-making.
As legal scholar Randy Barnett has argued, it would in some sense be impossible to enumerate all the rights that distinguish freedom from tyranny. For instance, as Alito points out about abortion, the Constitution doesn’t mention the manner of traditional men’s headwear known as the fedora. If you concluded that the state of Wisconsin was well within its rights to ban fedoras, you’d take misconstrued the nature of the Constitution. I’m non talking about the fedora every bit religious or political expression, but just as a caput-warmer or stylistic preference.
If the FBI were enforcing a dress code—making all men habiliment jackets to dinner, for case, or prohibiting them from doing so—they wouldn’t exist violating any explicit provision of the Constitution, which doesn’t enshrine the correct to wearing apparel yourself. Simply it would obviously exist unconstitutional for all that, or only incompatible with the basic liberties the document’s designed to protect.
Again, the Constitution doesn’t mention marriage at all. That should lead directly to the determination that state governments tin’t prohibit gay marriage, for case. The Constitution doesn’t mention almost things, really. Information technology doesn’t mention magazines. That doesn’t mean that states tin ban magazine publication.
The Ninth Amendment doesn’t directly express, say, Madison’s intentions with regard to abortion, magazines, or fedoras, which were still struggling to overcome the hegemony of the powdered wig with regard to the heads of the framers. What it does express is the key purpose of the Constitution of the United States: to restrain the power of government from destroying the liberty of the people.
That’s the basic intention of the whole document. And then I’d reframe the legal question. The Ninth Amendment shifts the burden of proof: the question isn’t whether women have the right to finish a pregnancy, merely whether governments take the right to restrain them.
—Follow Crispin Sartwell on Twitter:@CrispinSartwell
Which Action Would Be Protected by the Ninth Amendment