I have run across arguments online that say things like the “right to privacy” and “the right to marriage” don’t exist anywhere in the Constitution. When people say this, I’m very curious if reading a short list of 10 things is too taxing for most people, so they stop at the 2nd Amendment or if they’re reading comprehension is so poor that words that have more than two syllables start to go over their heads. Possibly, it might be that since they can’t see the word “privacy” in there, it must not exist. It is possibly some combination of the two. In any occasion, I would like to take this time to go over some basics of Constitutional law, focusing particularily on the 9th Amendment, and talking about the history of some of the rights we “don’t” have because they’re not explicitly stated.
Way back in the day, we had two (major) different schools of thought about the Constitution. There were the Federalists, whom included Alexander Hamiliton, James Madison, and John Jay, and the Anti-Federalists lead by Patrick Henry. There where any number of difficulties between these two groups, but I’m going to focus on the Bill of Rights.
The Anti-federalists wanted a written Bill of Rights, and the Federalists did not. The Anti-federalists felt that without a Bill of Rights, the government would inevitably steal authority for themselves that violated human rights. Henry, in “Need for a Bill of Rights” said quite forcefully:
You ought to be watchful, jealous of your liberty; for, instead of securing your rights, you may lose them forever… I beg gentlemen to consider that a wrong step made now will plunge us into misery, and our republic will be lost, and tyranny must and will arise…
The necessity of a Bill of Rights appears to me to be greater in this government than ever it was in any government before… All rights not expressly and unequivocally reserved to the people are impliedly and incidentally relinquished to rulers, as necessarily inseparable from the delegated powers…
This is the question. If you intend to reserve your unalienable rights, you must have the most express stipulation; for, if implication be allowed, you are ousted of those rights. If the people do not think it necessary to reserve them, they will be supposed to be given up.
The Federalists, on the other hand, thought a Bill of Rights was at best redundant and at worst something to be feared. A Bill of Rights would be redundant in the sense that the Constitution already limited the power of the federal government. It would be dangerous in the sense that, if written down, the government would think that those were the only rights in which a person/ state had, and that a specific prohibition would be taken as an invitation to push their powers. Alexander Hamilton stated in the Federalist Papers No. 84:
I …. affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.
But, the Anti-federalists had enough political capital to force an explicit Bill of Rights. However, in order to do this, they had to address the concerns of the Federalists. Thus enters the 9th Amendment.*
The 9th Amendment states: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people**
In very plain language, this amendment states that just because the Bill of Rights doesn’t explicitly say you have any particular rights, doesn’t mean they don’t exist. For that, you have to go to the common law.
To back-track just a little bit, I need to tell you that there are two different kinds of law in the US: statute, and common law. Statute law is the laws that legislative bodies pass; the text of any particular statute. Common law is the law that results from judicial delibration; ie what the courts have determined what certain laws mean. For example, if the state of North Dakota was to ban red-headed people from driving on Sundays, the statute law would be the text that says “red-headed people may not drive on Sundays”. The court would then hear a series of cases, and from those cases we would get an idea of what the words “red-headed” “driving” and “Sunday” meant for the law. You may get a bunch of judges that decide that this is the dumbest law ever, and decide to very narrowly interpret it so that “red-headed” means “only people who are 90% or more on the red spectrum” and “driving” means “in a four-wheeled vehicle, that is started, in motion” and “Sunday” means “from the hours of 7 am to 10 pm on Sunday”. If the legislator gets really irritated by this series of actions, they can pass a new law, specifically writing what these words mean, that would constrain the judges interpretation.
In the case of the 9th Amendment, the common law has already clarified a number of rights that the people have. In Lochner v. New York the right to contract was stipulated. Skinner v. Okalahoma said we had the right to reproductive rights when it banned punitive steralization. In Meyer v. Nebraska the Supreme Court established a series of rights, including the right to academic freedom, students’ right to acquire knowledge, and parents’ right to control children’s education. In that case, the majority oppinion stated:
Liberty denotes not merely freedom from bodily restraint but (individual right) to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God
.***
The Supreme Court looks to a number of things to determine if an individual has certain rights. Routinely, they will look at the preceeding eight amendments and see if this “new” right fits in the spirt of the Bill of Rights. The moral norms of society are frequently referenced, as are common law cases. Finally, they make a determination if the right being argued fits the definition of “liberty”.
In the next part, I will talk about the right to privacy, and the history of how we gained that right.****
*And also the 10th Amendment, but I’m not going into that here.
**Can I just squee out for a second and say how awesome I find the US governing document? This is a really impressive document, and one of the few things that inspires a sense of patrotism in me.
***If you look real close, you might notice that the phrase “to marry” and “bring up children” are in there, among other things.
****I am NOT a lawyer. Please do not use anything I say here as binding.
I really liked this when I read it in January, and found it so helpful still, four months later, that I have just referred it to another!