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Who’s afraid of the Ninth Amendment?

May 3, 2022. Source: Wikimedia Commons.

There is an unspoken rule among legal eagles that ordinary people (like me) should not try to interpret the Constitution. The reason is that constitutional law (legal eagles use the term “jurisprudence”) is very complicated and embodies a long history of Supreme Court case law about which we non-experts are expected to know nothing.

Fine. I know nothing.

But what about this:

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

That is the Ninth Amendment of the U.S. Constitution, and it is part of the original Bill of Rights ratified in 1791. Could anything be clearer? And yet, for many years, legal eagles have put forth the idea that the Ninth Amendment does not contain any “substantive rights,” but rather that it is “a statement on how to read the Constitution.” Here’s how people like me, who know nothing, would read it: The authors of the Constitution knew perfectly well that authoritarians and preachers would claim that any right not explicitly mentioned in the Constitution does not — and can never! — exist, and that authoritarians and preachers would try to use the law to dictate how others live.

The U.S. Supreme Court is clearly terrified of the Ninth Amendment and has almost completely ignored it in centuries of “jurisprudence.” A 1947 case (United Public Workers v. Mitchell) actually had the effect of putting a limit on the Ninth Amendment. The Ninth Amendment is obliquely referenced in Griswold v. Connecticut (1965), the case having to do with a private right to use contraceptives, but that ruling was based on the Fifth Amendment, not the Ninth. There actually is still disagreement on whether a right to privacy exists, because privacy is not explicitly mentioned in the Constitution.

Now comes the right-wing hack Samuel Alito, who actually writes in the document leaked from the Supreme Court this week: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. …”

Coming from a Supreme Court justice, no less, that sounds to me perversely and knowingly anti-constitutional — not to mention that it sounds like propaganda, which know-nothings who know even less than I do will fall for. Alito is disparaging (and then denying) a right not enumerated in the Constitution, with reference to a made-up right-wing legal theory rather than the actual text of the Constitution.

The New Yorker writes: “If a right isn’t mentioned explicitly in the Constitution, Alito argues, following a mode of reasoning known as the history test, then it can only become a right if it can be shown to be ‘deeply rooted in this Nation’s history and tradition.’ ” Really? Is that in the Constitution? But what do I know. These people get their instructions directly from God and billionaires.

But it seems clear to me that Alito’s concept of “jurisprudence” boils down to this: There can be no such thing as moral progress, because the concept of rights, justice, and equality are ossified, locked down, and cannot advance beyond the state of moral progress that had been achieved by the year 1791, when many members of the government and even the universities owned slaves. No wonder it took so long even to end slavery or to allow women to vote. And now the Supreme Court is not merely blocking constitutional rights, it’s taking them away.

Everyone has moral qualms about abortion. No one thinks that abortion is a good thing. But that’s not the question. The question is whether a minority’s moral views can override the Constitution and start putting people with different views in prison. And we know what these people really want and what their project is. We know this isn’t over and that right-wing religionists — a minority — will now move on to take away other constitutional rights, always the rights of the people they don’t like, and always with a particular, peculiar, vindictive viciousness toward anything having to do with sex.

There are so many things I’d like to say about the meanness of the people who consider themselves our moral superiors and intend to lord it over us, but so far I’ve still got a weak grip on civility. That’s really hard work these days.

One Comment

  1. Henry Sandigo wrote:

    Thank you

    Sunday, May 8, 2022 at 12:03 pm | Permalink

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