September 12, 2005

John Roberts and Me
by Lorraine Berry

I've been sort of out of it for the past few weeks. The summer was a blur of things good and bad, mostly good, but recently, things have taken a turn.

I'm having some health difficulties. It's nothing that's going to kill me, but I'm uncomfortable, and, quite frankly, a little scared. There's a quick fix that would require major surgery, but there are potential fixes that don't require surgery. So, for now, I'm opting for slow, even as I find myself wishing that I could bat my eyes or wiggle my nose and make all of it just disappear. Instead, I'm trying to give my body the time it needs to heal, and, if that effort proves fruitless, at least I'll be able to have major surgery knowing that I've considered all my options.

I've not written about this because there are far too many people suffering right now. I don't believe in comparative grief. I think if you're grieving, it doesn't really matter if someone has it worse than you. Comparative pain doesn't get us anywhere except alone. But really, complaining about my pain and fear right now while there is such depths of agony out there makes me feel shallow. On the other hand, my body feels awful. Simply awful. I feel extremely fortunate, though, because I have a hell of a physician, and together, she and I are making decisions about my body.

I'm trying to imagine what this experience might have been like if John Roberts was in the room with me.

The thing that keeps legislators out of that examining room right now is the Ninth Amendment. Robert Bork may have decided that the Ninth Amendment is an indecipherable inkblot, but Robert Bork is an ass. My understanding is that Judge Roberts and his wife adopted their children. I don't need to know what led to that decision--it's none of my business--and I would ask that Judge Roberts keep this in mind.

The Ninth Amendment, cited in Griswold v.Connecticut as the source of a right to privacy, is not some throw-away amendment. It is not an act of judicial activism to argue that the founding fathers fully intended that the people retain their rights, for as Hamilton argued in Federalist #84,

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.'' Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

In other words: Hamilton argued that a Bill of Rights was unneccessary. Bills of Rights were intended as limitations on the rights of kings--they were the declarations by nobles, and later the House of Commons, of rights that the people claimed from their king. But America was founded as a people's republic, and Hamilton argued that the people retained all rights, except for those they willingly surrendered to the common good. A compromise among the drafters of the Constitution led to the Ninth Amendment, a clear demonstration by Madison et al that just because they hadn't named a right, didn't mean it didn't exist.

Now, admittedly, it's very clear in reading the Constitution that certain people did not have rights. Slaves (who were only considered 3/5 of a person); women; men without property. But later amendments have cleared those things--expanded the definition of who was able to claim personhood. The preamble of the Constitution has been restored to its proper meaning: We the PEOPLE.

The Ninth Amendment is not some inkblot. The Ninth Amendment is a reminder that people have inalienable rights--the right to life, liberty, and the pursuit of happiness. The right to marry the person whom they love; the right to decide whether to be pregnant; the right to have a private life. Private, from the Latin, privatus--not in public life.

Those people who continue to argue against choice, or against gay rights, or that the Ninth Amendment is meaningless, refuse to acknowledge that all of us--every single one of us--is entitled to a private life.

So, unless John Roberts wants to discuss, in public, the precise medical reasons that he and his wife adopted a baby; he needs to publicly affirm the legitimacy of the Ninth Amendment. Because either all of us are entitled to a right to privacy, or else none of us are. And it seems to me that each and every one of those who oppose the right to privacy have private things about themselves that they don't want to share--which is as it should be. But they should be warned. You don't get to hide behind brick walls while the rest of us live under glass.

Posted by in Abortion, Accountability, American Theocracy, Blog Sheroes, Civil Rights, Culture War, Democracy, Government, Human Rights, Law, Politics, Privacy, Reproductive Rights, SCOTUS
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