Strengthening Constitutional Self-Government

No Left Turns

The Ninth Amendment

A reader comments on Peter’s post "Lap Dancing on the Constitution" (below) to suggest that the Lawrence Supreme Court majority should have found the liberty interest to engage in homosexual sodomy not in the "liberty" covered by the Due Process Clause of the Fourteenth Amendment, but in the Ninth Amendment. The Ninth reads, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." This suggestion deserves comment.

The Ninth Amendment is a real tough constitutional nut. If it creates constitutional protection for, say, sexual privacy, which is not otherwise enumerated in the Constitution, there is absolutely no principled legal basis whatsoever to deny constitutional status to every other right anyone could imagine. Most lawyers think that result can’t be right. On the other hand, if you say the Ninth Amendment doesn’t create any constitutional rights, it then becomes a dead letter. That result doesn’t seem right, either.

The best solution to this puzzle I’ve seen & heard comes from Lawrence Claus, a law professor at the University of San Diego. He suggests that the Ninth Amendment means to stop legislators & judges from construing -- note that the Amendment does speak of "construe" -- the rights that the Constitution does enumerate to annihilate the rights it does not. So, even though the First Amendment enumerates a right to free speech, that right should not be construed to deny or disparage other citizens’ right to be free from defamations. Or, assuming that the Fourteenth Amendment covers the "liberty" of sexual privacy, that liberty should not be construed to deny or disparage, say, young men & women’s right to enter into stable and long-lasting marriages, or childrens’ right to be reared in a stable family.

So the Ninth Amendment isn’t a fix-all. If it applies, it points right back to the $64,000 questions in Lawrence: How does sexual conduct outside marriage affect public morals, and do those morals support the stability and the social functions of the family?

Discussions - 3 Comments

Ah, it is the 10th and not the 9th (nor any "shadowy" penumbra) that should have decided Lawrence v. Texas. The Constitution of the United States of America merely instituted a LIMITED Federal government. The "Bill of Rights" was not some EXPANSION of the POWERS of this LIMITED Federal government. No, it was a list of additional SPECIFIC (not penimbric) CONSTRAINTS on FEDERAL GOVERNMENT POWERS. The ultimate constraint on the POWER of the Federal goverment was the 10th Amendment. To wit:

Article the twelfth [Amendment X]

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Nowhere in the text of the Constitution, nor in its amendments can the POWER of the government of the United States, including its Royal Judiciary, be construed to allow the Federal government to DICTATE the "morality standards" of 300 million Americans; thousands of communities; and 50 States.

Of course, such a concept is totally lost on so-called Justices who have sacred the Royal duty to bring forth a new Camelot upon this land! At least 6 out of 9 see that way!

Exactly Mr. Claeys! When one looks at history, one notices that the very point of including the 9th Amendment was to say that no listing of rights could possibly be exhaustive and there are a nearly infinite number of rights that are not explicitly stated in the Constitution but are still rights retained by the people. Take, for example, flower gardening. If I legally own a piece of land, there is nothing that the state can do, within the bounds of the Constitution, to prevent me from growing a flower garden on that property. The concern during the founding period was that exactly what you and many other "conservatives" argue would be accepted, namely that we do not have a right if it is not specificly enumerated in the Constitution. This was the great fear of many thinkers during the founding with regards to the inclusion of a Bill of Rights, and modern-day statist jurisprudence has demonstrated how correct their fear was. I think the the amicus briefs filed by Cato and the Institute for Justice made the most sense of any legal writing to come out of Lawrence, and they certainly were the closest to the original intent. There is, in fact, "Absolutely no principled legal basis whatsoever to deny constitutional status to every other right anyone could imagine," with the caveat that there are certain powers enumerated and given explicitly to the government. As one founder observed, present me with any list of the rights of man and I will promptly point out several more you left out.


One final matter: there are, Mr. Lang, several decades worth of cases establishing that a large swath of the Bill of Rights is applicable to the states under the "Due Process" clause of the 14th Amendment, so we now live in the awful state of affairs where the several states must also respect free speech, right to counsel, etc. Whether you approve or not, you are over 60 years too late to do anything about it.

"One final matter: there are, Mr. Lang, several decades worth of cases establishing that a large swath of the Bill of Rights is applicable to the states under the "Due Process" clause of the 14th Amendment, so we now live in the awful state of affairs where the several states must also respect free speech, right to counsel, etc. Whether you approve or not, you are over 60 years too late to do anything about it."

Apparently a mere 17 years ago, in Bowers a "fundamental right" under the Due Process Clause to perform "unnatural" sex acts could be located by the Supremes in the mystical "penumbra" of rights hiding in our Constitution.

Don’t you find at least somewhat amazing that an "unnatural sexual" act has gone from being "deviate sexual behavior" according to the APA Disorders and Statistical Manual in 1973, to being a protected "civil right" in 2003? A "civil right" that apparently is on a par with (according to you) the Freedom Speech and the Right "to have the Assistance of Counsel for his defence", and much greater than any individual "right to keep and bear arms" free from government infringement, as the States and Municipalities legislate away this "right of people" without any Federal judicial objection at all.

Of course Justice Kennedy never identified "same-sex sodomy" as a "fundamental right", as would be necessary for it be considered protected by the 14th Amendment’s "due process" clause. Nor he make a case that it is one of 14th Amendments protected "privledges and immunities" of citizens. (Hmmm! "Citizens" - would exclude legal and illegal aliens from enjoying a "sodomy privledges"?) That is because it is not. Like the Burger Court with Roe v. Wade in 1973, Associate Justice Kennedy is "winging it" - he is making this stuff as he goes. Associate Justice Scalia calls your attention to this fact in his dissent, to wit:

"Though there is discussion of ’fundamental proposition[s],’ ante, at 4, and ’fundamental decisions,’ ibid. nowhere does the Court’s opinion declare that homosexual sodomy is a ’fundamental right’ under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a ’fundamental right.’"

But heck, why follow "stare decisis" and the Constitution when you have an opportunity to "stylish"! BTW, in which of "Bill of Rights" might I find this "right to perform same-sex sodomy" of yours?

You seem to have the delusion that somehow the 14th Amendment overturned Federalism and cancelled the 10th Amendment of of the Bill of Rights, by ending all State sovereignty. Perhaps you have a cite to support this fantasy of yours?

As for the issues in Lawrence v. Texas, again, please provide the "Article, Section, and Clause" of the Constitution of the United States of America that establishes a "civil right" to perform "unnatural" sexual acts, and grants the Federal government the POWER to set morality standards for every man, woman, child, community and State in the country. Just what is it about LIMITED GOVERNMENT that has you so confused?

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