“The Constitution’s enumeration of certain rights shall not be construed to deny or denigrate others withheld by the people.” It’s the ninth amendment. It’s a dead letter in the case law, perhaps because taking it seriously would frustrate the federal government in many ways. But if I were looking in the Constitution for the right to abortion, and much more generally the right to privacy, I would start there.
Judge Arthur Goldberg’s concurring opinion in Griswold, the 1965 ruling that neither states nor the federal government can restrict access to birth control, is one of the few cases in which “anti-bashing was applied by the Supreme Court. “To consider that a right as basic and fundamental and as deeply rooted in our society as the right to privacy in marriage can be violated because that right is not guaranteed in so many words by the First Eight Amendments to the Constitution is to ignore the Ninth Amendment, and give it no effect,” Goldberg wrote.
Had Goldberg’s interpretation prevailed, Roe might have been decided on a less vulnerable basis, and Americans’ “unenumerated” rights might have been better protected. They should be. I was happy to hear from people like Elena Kagan and Ketanji Brown-Jackson that some version of “originalism” or “textualism” is the consensus view of constitutional interpretation Nowadays. If we are trying to understand what the Constitution means, there is no plausible alternative to trying to understand what the people who wrote and ratified it thought it meant, and how the words in it were in use, circa 1787.
This does not render the document irrelevant to matters which it does not explicitly mention or which could not have been explicitly mentioned in 1787. In the draft decision, Samuel Alito repeatedly stresses that “the Constitution makes no reference to abortion”. as if that more or less decided the question. Second, he argues that the right to abortion care and perhaps the right to privacy are not implicit in any provision. To all of this I say, yes, it is there, in the Ninth Amendment, which, if the Court had paid attention to it all these years, would be second in importance to the first.
There is no mention of abortion in the Constitution. There is no mention of marriage. What I would conclude from the Ninth Amendment and the expressed intent of the Constitution as a whole is that you have the right to terminate a pregnancy or marry whomever you wish, until the governments of the States institute laws restricting you. But when they do, they will be violating the 14th Amendment, which prohibits states from making laws that deprive their citizens of constitutionally guaranteed rights.
The Bill of Rights was added to the Constitution over the objections of many supporters of the document, including, initially, those of James Madison, who eventually changed his mind and drafted it, primarily because he did not think that the Constitution could be ratified. without it, as it should not have and probably would not have been. Madison’s concern, and that of a number of others, was that if they listed a list of protected rights, it would be interpreted by officials and the courts as saying that people had no other rights.
But the rights enumerated in the Constitution are not, as the authors understood, sufficient to prevent continued government interference in matters that should remain in the area of personal autonomy or family decision-making.
As legal scholar Randy Barnett has argued, it would be somewhat impossible to list all the rights that distinguish freedom from tyranny. For example, as Alito points out about abortion, the Constitution does not mention the traditional style of men’s headgear known as the fedora. If you had concluded that the State of Wisconsin was well within its rights to ban markers, you would have misinterpreted the nature of the Constitution. I’m not talking about the fedora as a religious or political expression, but simply as a head warmer or stylistic preference.
If the FBI enforced a dress code — requiring all men to wear jackets to dinner, for example, or prohibiting them from doing so — they wouldn’t be violating any explicit provision of the Constitution, which does not enshrine the right to dress oneself. -same . But this would obviously be unconstitutional, or simply incompatible with the fundamental freedoms that the document is supposed to protect.
Again, the Constitution does not mention marriage at all. This should lead directly to the conclusion that state governments cannot ban same-sex marriage, for example. The Constitution doesn’t mention most things, really. It does not mention magazines. This does not mean that states can ban the publication of magazines.
The Ninth Amendment does not directly express, say, Madison’s abortion, magazine, or felt-tip intentions, which were still struggling to defeat the powdered-wig hegemony over the heads of framers. What it expresses is the central purpose of the United States Constitution: to prevent the power of government from destroying the freedom of the people.
This is the fundamental intention of the whole document. So I would rephrase the legal question. The Ninth Amendment reverses the burden of proof: the question is not whether women have the right to terminate a pregnancy, but whether governments have the right to restrict them.
—Follow Crispin Sartwell on Twitter:@CrispinSartwell