Many of my friends and I represent the emerging young Catholic bloc of families with children who are orthodox in their beliefs, loved the pope and his conserving doctrine, and are worried about the state of Western morality. Many of these friends recognize the complexity of the Church’s views on things like immigration, social justice, debt-forgiveness, and the like, but the most important issue by far is the pro-life stance - which for us is the decisive "single-issue" that makes us vote for Republicans, even if we are Catholics before we are partisans.

Many of us who are historically and legally knowledgeable would very much like to reverse Roe v. Wade because of its judicial activism and return the issue to the states. However, it would still be problematical for the state legislatures to allow abortions for whatever reason (safe and legal, choice, etc.) because we see the act as murder of an innocent human being. Legislatures must represent the will of the people/majority, but it still must follow the dictates of natural law and just majorities. Having said that, the issue should still go back to the state legislatures as representatives of the people acting according to their police powers rather than nine unelected judges using medical science rather than the Constitution in their jurisprudence not to mention making up rights.

I am curious as to how others feel about the Court deciding to protect activities, "rights," that are not expressly in the Constitution. I used to think the creation of new rights was plainly unconstitutional, but am no longer certain.

The 14th amendment prohibits depriving people of liberty without due process of law. "Liberty" encompasses many activities. Conservatives could get around this by appealing to the legislative intent/purpose of the 14th amendment (although this is difficult to do because states adopted it without consenting to it, how does intent work then?) as prohibiting racial sorts of deprivation of liberty and the problems of slavery.

I think the primary problem conservatives face with their arguement against new rights is the 9th amendment. The plain purpose of the 9th amendment was to protect rights that are not enumerated. Whenever the Court uses it to protect new activities as rights it is being constitutional. I think the best that could be said is that the 9th amendment only applies to the federal government.

I am curious if anyone can help me out of my constitutional logic problem.

No problem, Steve. The unborn child should be formally recognized under the law as the full person that he or she already is. No one’s rights imaginatively constructed under the ninth amendment supercede the right of a person not to be put to death without due process of law. Abortion is the murder of an unborn person, that unborn person’s right to life supercedes any new rights or liberties a court might be able to construct.

WM

I am not sure about your abortion analysis. I was hoping for something a bit broader than abortion. Such as privacy rights, right to homosexual conduct, etc.

This is the question: Is it constitutional for The Supreme Court of the United States to protect activities from government regulation that have not historically been protected because of the 9th amendment?

Steve: While you can find liberal (and some libertarian) scholars who see broad judicial power in the Ninth Amendment, the answer to your question (i.e., "Is it constitutional for The Supreme Court of the United States to protect activities from government regulation that have not historically been protected because of the 9th amendment") from an originalist/textualist position is "no." The Ninth Amendment is relatively simple: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Thus, there are other rights, but they are not necessarily of constitutional rank. Because these rights are retained by the people, they may choose to waive them, or to regulate them, through their state governments. Thus, even if one believes that there is a right to (insert outlandish claim here) which is held by the people under the Ninth Amendment, the people may through their state governments regulate that right. Any action by the courts striking down that law under the Ninth would be illegitimate insofar as the state regulation of the right (by the consent of the majority of the "people" in whom the right is vested) would be consistent with the Ninth Amendment.

The attachment of the Democrats to Roe is politically suicidal. All they need to do is passively allow Bush to nominate justices who will overturn Roe and then let the Republicans take the heat over state legislatin forbidding abortion. Abortion would then cease to be a national issue. It would be mostly legal in blue states and mostly illegal in red states. The focus of national politics would shift to economics; many Catholics would consider voting for national Democrats once again.

The 9th Amendment certainly does protect rights that are not enumerated in the Bill of Rights. As Federalist #84 points out, the danger of making a Bill of Rights was that one simply could not enumerate every right that existed in nature and consequently would be left unprotected and subject to depredation by the federal government (not the states). So, you raise a good question.

However, I think that the most obvious place to start with the definition of the rights that already exist in nature should start with the sovereign people. The Amendment process can define those rights that seem in need of protection as an expression of the sovereign people. The next place to go would be the legislatures that represent the will of the people at the state and federal level.

What right might the courts have to define the rights that exist in nature? Well, if one looks back to the Founders such as George Wythe, Alexander Hamilton, John Marshall, and other jurists raised in the British common law tradition, judges could define those laws but they had to be consistent with natural law and then proven reasonably, such as the involability of contracts or sanctity of private property or that no ordinary law can be repugnant to fundamental law. Is there a right to homosexuality in nature? Is there a right to polygamy in nature? Is there a right to murder in nature? Is there a right to rape in nature? All of these could be defended simply on an appeal to liberty. But, clearly, the Founders/framers would have seen that liberty must always be tempered by virtue and the objective rightness of actions according to the natural law.

Hadley Arkes is a great author to read on judges and natural law (he also has some lectures here on ashbrook.org). Also, Ken Masugi over at Claremont.org makes arguments for natural law jurisprudence. Neither would necessarily agree with the above - I’ll let them speak for themselves.