Wednesday, February 28, 2007

On Liberty - Ninth Amendment

After covering the Supreme Court's landmark 1965 Griswold v. Connecticut case (striking down a state statute forbidding the use and provision of contraceptives to married persons on the grounds that the statute infringes a constitutional right of privacy) in class yesterday, it's worth commenting upon Justice Goldberg's concurring opinion. Goldberg's opinion (alas, only concurring, not majority) was really the most serious treatment of the Ninth Amendment in the Court's history, which is too bad, since it encapsulates well the Constitution's position on Liberty - a position that has been systematically minimized and contradicted throughout the nation's history.

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

This is an inconvenient provision for those who prefer an approach that would only allow rights that are expressly named in the Constitution, and for those who favor a "government-first" approach that allows government to limit individual freedom virtually at will. For many generations in America, those in power, acting ultimately in the interests of perpetuating their (and their successors') grip on power, have ignored the Ninth Amendment, treating it, as Robert Bork famously said, as of little more consequence than an accidental "ink-blot on the page."

Goldberg got it right in Griswold though, stating, "The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold.... [A] judicial construction that [a] fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment...."

What then is a "fundamental right"? At root, it is, as Justice Brandeis said in another context, "the right to be let alone-the most comprehensive of rights and the right most valued by civilized men." J.S. Mill's "harm principle" is useful here: If individual conduct causes no harm to another, government simply has no business interfering with the conduct, and the Ninth Amendment guarantees the individual the right to be let alone.

In the 40 years since Griswold, the Ninth Amendment has received more interest in the academic literature, but still not really in the Supreme Court.

Until We the People, and our agents in the federal judiciary, take seriously the "Liberty-First" premise embodied in the Ninth Amendment, we'll just continue along our current path, foretold by Alexis de Tocqueville in his 1830 book "Democracy in America," where government "spreads a fine mesh of uniform, minute, and complex rules, through which not even the most original minds and most vigorous souls can poke their heads above the crowd…. Rather than tyrannize, [government] inhibits, represses, saps, stifles, and stultifies, and in the end reduc[ing the] nation to nothing but a flock of timid and industrious animals, with the government as its shepherd."

By: Michael Anthony Lawrence