The Ninth Amendment…

…or, Great Power From Few Words.

Veritas Omnia Vincit is back from his sailing vacation, and found the time to pen his latest essay on the Bill of Rights. In this case the Ninth Amendment, which I’m sure you’ve already gathered. An interesting Amendment, in that it’s impossible to specifically list all Rights afforded to Citizens. Enter the Ninth, a catch-all Amendment for rights not listed. From V:

Veritas Omnia Vincit

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

This is another example of the founders intent to make sure everyone understood the Bill of Rights is not a series of rights granted to the people but is in fact a series of restrictions designed to confine and restrain government from its overwhelming desire to constantly encroach itself into the lives of the people it governs instead of simply letting them live freely without encumbrance. This amendment was added largely due to Anti-Federalist concerns that future governments of these United States might take the enumerated rights of the Bill of Rights as the only rights the people had that were protected from the government.

This simply sentence clearly states that just because the founders didn’t enter a restriction into the Bill of Rights doesn’t mean the people don’t retain those rights. In fact, if there is any question as to whether or not we have a right to something the ninth indicates the government should consider that we do possess that right rather than assume we do not.

Interestingly enough that amendment was largely left alone for most of the history of this great nation. It rose to prominence in 1965 when Justice Arthur Goldberg wrote an opinion citing the ninth specifically when he reasoned that the right to privacy while not enumerated specifically in the constitution was nevertheless an obvious right retained by the people. That opinion came during the Griswold v Connecticut case.

Griswold v Connecticut is interesting for several reasons…some of them remaining topical to this very day. In Hartford CT in 1935 the very first Planned Parenthood office opened up largely providing services to women who had no health care access to gynecologists. They also provided contraceptive information. They were compelled in the late 30s to comply with the 1879 anti-contraception laws. During the 40s several court cases arose from this situation and that began a series of legal challenges many of them failing on technical reasons. Fast forwarding to 1961, Yale School of Medicine had one of their doctors challenge the law on behalf of his patients as a failure to obtain certain birth control methods was a threat to the lives of some women. SCOTUS dismissed that challenge on the lack of standing as the doctor nor his patients had yet been charged. The dissent written by John Marshall II indicated it was his firm belief that the court should have heard this case, largely because the “full scope of liberty guaranteed in the due process clause cannot be found in or limited by the precise terms of the specific guarantees provided elsewhere in the Constitution…” One of the question that came up was whether or not the State of Connecticut intended to allow police to search the bedrooms of its citizens looking for evidence of contraception…violating the sanctity of the private marital relationships all citizens believed they held. Marshall went on to add, “This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms in the United States; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”

That second part once again reinforcing the notion that we the people are born with a multitude of natural rights far beyond those enumerated in the first eight amendments and that simply because it had not been enumerated did not mean the right didn’t exist. Knowing the Libertarian natures of several of the founders that idea of natural born rights is one I wholeheartedly agree with. It also sits well with the idea behind several of the amendments statements such as “shall make no law” and “shall not be infringed”. Our rights are not granted us by the Constitution, instead our Constitution and Bill of Rights are both mechanisms designed to restrict and rein in the avarice of government and the people who become part of any governing body.

In any event after Marshall wrote that dissent the Connecticut Planned Parenthood decided a challenge in which someone did in fact have standing due to being charged was in order. Consequently they opened a birth control center and directly challenged the law. Ms. Griswold, the director of the Planned Parenthood in Connecticut was arrested as was Dr. Buxton and both were arrested, tried, found guilty and fined. The Connecticut Appellate Court and State Supreme Court both upheld the convictions setting the stage for the SCOTUS to take a look once again.

The Griswold appeal focused on the fourteenth amendment protections, and the case was decided by a 7-2 majority. Justice William Douglas wrote the opinion for the majority that a basic right to privacy while not specifically enumerated in the Constitution was still one retained by the people. Justice Arthur Goldberg concurred going as far as to use the ninth amendment to clearly state that the right to privacy was one of a host of other rights that the ninth amendment protects from government intrusion.

There has been some serious back and forth amongst legal scholars regarding the concurring opinion and its use of the ninth to justify a right to privacy. In my not so legal opinion those that find there is no inherent right to privacy, which includes some powerful legal minds, are the ramblings of statists attempting to justify yet more incursions into our personal freedoms. If one understands the founders, who they were, what they had just done one should come away with a very simple understanding. The founders were not at all statists, they never trusted nor believed that a government would ever act honorably unless fully contained and restrained by the people who consented to be governed. Consequently when considering any law that bumps into a potential Bill of Rights protections it is my non-legal view the correct assumption is the one that limits government and permits the most freedom of action by the citizens of the United States. Even if that is to the detriment of the Government as the founders didn’t at all care how much Government was inconvenienced as long as the people remained as a free as possible.

We’ve long since drifted away from the rugged individualist nature of our founders, men willing to kill their former countrymen to avoid paying a minimal tax that all of them could easily afford to instead start a new nation of equality under the law and representative government of the people with the consent of the governed. They were not “statists” by any realistic definition of the word, they said we will fight you to the death on principle rather than concede and save ourselves the risk. It’s my opinion that today most of our fellow Americans are only too happy to pay more in taxes to get more “free” government programs. We are hardly the stuff of individual accountability and responsibility today. That should sadden all of us to some degree.

You will find the statists among your friends, and your colleagues. They pretend to be otherwise, but they are not and are easily discovered should one choose to find them out. They will often use the opinions of government to back their support of government. They will say things like, “I believe in free speech, but….” and it never matters what comes after that but because it is simply a justification for another government intrusion into your protected rights.

That’s all I have on this one, a not very often used amendment but perhaps one more example of the power the founders wanted to leave in our hands and not the dirty, corrupt hands of government. Your opinions are always welcome.

VoV

Thanks again, V. Elegant in its brevity, yet covering an immense span of “other” Rights not specifically listed elsewhere.

Category: Guest Post, Historical, Legal