August 31, 2005

Naughty Number Nine
by Lorraine Berry

Number Nine will put you on the spot.
Number Nine will tie you up, oh, in a knot.
When you're tryin'
Multiplyin' by nine,
You might give it everything you've got
And still be stopped.
If you don't know some secret way you
can check on,
You'll break your neck on
Naughty Number Nine.

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

I miss William O. Douglas. The right to privacy, he argued, is contained within the Bill of Rights, right there in Naughty Number Nine--the amendment that certain jurists--those cut from the same cloth as John Roberts--like to pretend n'existe pas.

But it does. And every progressive person out there better memorize the words to the Ninth Amendment because it is where we need to draw a line in the sand. The place where we declare we will shall not be moved.

The founding fathers included Amendment Number Nine specifically to argue against the notion that if they weren't included in the Constitution, rights did not exist. It's how conservatives argue now: that the Constitution is a fundamentalist document, that it says what it means and it means what it says, and anything else is pure "activist interpretation." But that isn't true. In order to argue that there is no fundamental right to privacy, one has to argue that the founding fathers never intended for Americans to have any rights that weren't given to them at the beginning. This canard was taken apart by Justices Douglas and Goldberg in Griswoldv.Connecticut when the two of them tag-teamed to write the decision that freed married couples to use contraception. (Yes. Contraception. In 1965. 40 years ago, the state could stick its nose into the marital bedroom and tell people whether they could practice birth control. Is this really what we want to go back to?)

Goldberg wrote:

These statements of Madison and Story make clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people.  

While this Court has had little occasion to interpret the Ninth Amendment, 6 "[i]t cannot be presumed that any [381 U.S. 479, 491]   clause in the constitution is intended to be without effect." Marbury v. Madison, 1 Cranch 137, 174. In interpreting the Constitution, "real effect should be given to all the words it uses." Myers v. United States, 272 U.S. 52, 151 . The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental 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 by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that [381 U.S. 479, 492]   "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (Emphasis added.)wrote.

Roberts must be asked, again and again, whether he agrees with James Madison, and whether he is willing to uphold the Constitution of the United States--the whole Constitution, including the Ninth Amendment. And, if he disagrees with the clear intention of the founding fathers in enumerating full human rights, what other rights would he withhold from the people?

Nine is my new favourite number.

Posted by in Abortion, Accountability, Body, Civil Rights, Culture War, Democracy, Government, Human Rights, Law, Privacy, Reproductive Rights, Supreme Court
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