#ninth amendment

May 9, 2022

For generations conservatives have peddled the libertarian notion that personal decisions — whether about wearing a mask during a pandemic or selling a wedding cake to a gay couple — should be left up to the individual and not be subject to government interference. But, being also misogynists, they make an exception when it comes to the decisions of women as to whether and when they will have children.

In the recently leaked draft majority opinion in the case of Dobbs v. Jackson Women’s Health Organization now before the Supreme Court, which would overturn the 1973 Roe v. Wade decision, Justice Samuel Alito has written, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”

This conclusion arises out of the totally made-up principle of "strict constructionism" (also known as “originalism”) which says the Constitution should be interpreted literally and word for word as it was written at the time of its passage. Thus, in his dissenting opinion in Doe v. Bolton, which struck down Georgia's abortion law in 1973 and was the companion case to Roe v. Wade, Justice Byron White, joined by Justice William Rehnquist, wrote

I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers.

But those who would take away a woman's right to choose whether or not to have an abortion simply because that right is not expressly included in the Constitution conveniently (and perhaps purposely?) ignore another part of that document, the often overlooked Ninth Amendment. Here's what it says: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In other words, the people are not limited to only those rights listed in the Constitution. And just because a right is not spelled out doesn't mean it doesn't exist. The right to travel freely from state to state is not mentioned in the Constitution. Neither is the right to a fair trial. But no one suggests we do away with these rights.

With Amy Coney Barrett another self-proclaimed “originalist” and “textualist” most likely going to be sworn in to become a Supreme Court justice, seeing the filmed play What the Constitution Means to Me by Heidi Schreck (newly released on Prime Video) was fortuitous. 

Here’s a preview of the original play from the New York Theatre Workshop:

If nothing else, I encourage you to see this play because of the moving performance of Heidi Schreck, who initially plays her memory of her 15 year-old self participating in a Constitutional debate competition.

The play begins with an idealized and naïve perspective about the Constitution as seen through the eyes of Schreck’s 15 year-old self. But as the show (and Schreck’s portrayal of herself) grows and progresses our understanding of the Constitution matures. We learn more about the documents weaknesses--as well as its surprising strengths.

THE NINTH AMENDMENT. One strength of the Constitution is the Ninth Amendment. Its inclusion in the  Constitution speaks to the possibility that the Founders viewed the Constitution as a living document--and not one limited by the rights delineated in the other articles and amendments. 

In the play, Shreck reads the Ninth Amendment (shown above) and then says: 

“Do you know what this means? It means that just because a certain right is not listed in the Constitution, it doesn’t mean you don’t have that right. The fact is there was no way for the framers to put down every single right we have. I mean, the right to brush your teeth—yes, you’ve got it, but how long do we want this document to be? [....]

“Our constitution doesn’t tell you all the rights that you have because it doesn’t know! [....]

“That is why I love Amendment Nine so much. Because it acknowledges who we are now might not be who we become. It, uh, it leaves a little room for the future self...”

[emphasis added]

According to Schreck that means that the Ninth Amendment left room for new rights to be defined as we continue to progress and change as a nation. For instance, Shreck says:

“Justice Harry Blackmun used the Ninth Amendment to find the right to privacy in the 14th Amendment. And he argued that this gave a woman the right to decide what to do with her own body. Well, actually, he argued that a doctor and his patient have a right to privacy so that he can decide what to do with her body.” [emphasis added]

THE FOURTEENTH AMENDMENT: CLAUSE 4. Above are Clauses 3 and 4 of the Fourteenth Amendment. Schreck was particularly taken with Clause 4:

“Clause 4 is even more miraculous than Clause 3. It is the Equal Protection Clause. It ensures that we cannot be discriminated against on the basis of race, sex, religion,  immigration status.” [emphasis added]

According to Schreck, because Clause 4 uses the word “person” rather than “citizen,” it means that anyone who is in the United States, regardless of citizenship, is afforded the protections of Clause 3:

“It, uh, it  actually uses the word ‘person,’ not ‘citizen,’ which means if you are an undocumented immigrant, you must be given all the protections of Clause 3, the Due Process Clause. You cannot be locked up without a fair trial. You cannot have anything—or anyone seized from you.” [emphasis added]

Does the Trump administration know about this? Wouldn’t this prevent all those undocumented immigrant families at the border being separated from each other and locked in cages without due process? 

[See more under the cut about “negative and positive rights” in the Constitution and why this writer (and apparently Schreck) is concerned about self-professed “originalists” and “textualists” like Scalia--and now Amy Coney Barrett.]

ROE V. WADE REPEAL?

In this week's edition of Founder Fridays, Dillon takes a closer look at the Ninth Amendment. #Constitution #9A #NinthAmendment #USConstitution #FounderFriday #Foundingdocuments #knowyourhistory

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

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Constitution 101: The Ninth Amendment

Generally, Americans treat the Ninth Amendment like the Bill of Rights’ unwanted stepchild. They mostly ignore it, and when they do talk about it, they often misunderstand it.

In reality, the Ninth Amendment serves a very simply but crucial purpose. It expands the limits on the federal government – at least in a manner of speaking. More accurately, it makes the implied limits on federal authority…