Unenumerated rights

Okay, Civics 101: The Bill of Rights to the Constitution describes basic, fundamental unviolable rights retained by the citizens, areas into which the government cannot intrude. We all know this, and if pressed, we could probably name most of the important ones off the top of our head. Freedom of the press, freedom of religion, freedom of speech, freedom to assemble. When we say we live in a free society, the Bill of Rights is usually what we’re talking about. We take those rights for granted. We just assume, as a matter of course, that we can call the President of the United States or our local congressman a miserable rat fink and not get arrested for it.

What we don’t always consider, though, is the fact that some of the rights that the Constitution does enumerate are pretty strange, and don’t seem to deal with issues that anyone really thinks about anymore. They reflect controversies and issues that were important to 18th century society, but aren’t really significant to our society. The most immediate and obvious is the 3rd amendment, the one against quartering soldiers in your home. I mean, I would be pretty ticked off if someone from Hill Air Force base were to show up at my door and tell me I needed to put up some guys from the 75th Air Wing, so could I clear some space for them please. So, yay 3rd Amendment. The British did that; put troops in citizens houses, and people got pretty ticked off about it. But it’s not something that happens anymore.

If we were starting from scratch, I think that the 1st, 4th, 5th, 6th and 8th amendments would all make the cut today. The 3rd and 7th seem iffy to me. The 2nd? If we didn’t already have it, I don’t think anyone would notice. Most countries don’t consider gun ownership a fundamental human right, and they seem to do okay. I bet it’d go.

Anyway, those aren’t all the rights we have. The 9th amendment makes that clear: the fact that some rights are enumerated in the Constitution doesn’t mean that that’s all there are. People have lots more rights than the 10 listed in the Bill of Rights. I see the 9th as kind of a rueful admission that times change, and some basic, fundamental rights will come more clearly into focus in time. As, indeed, has happened.

This issue of unenumerated rights, however, is the key to understanding some of the more controversial Supreme Court decisions. If The People, through their elected representatives, choose to enact laws that deny some unpopular minority its basic rights, it’s clearly the role of the Court to declare those laws unconstitutional. And so if someone were to say ‘hey, everyone hates Norwegians; they’re all still Vikings!’ and got Congress to pass a law banning, say, midsummer celebrations, Norwegian-Americans could say ‘hey, wait, first amendment, freedom to assemble’ and the Courts, presumably, would declare that law unconstitutional.

But what about the right of gay people to marry? Is ‘the right to marry’ an unenumerated right, as the 9th Amendment provides for? After all, Chief Justice Roberts made a point of the fact that the word ‘marriage’ is not found anywhere in the Constitution. Or is a right to marry so fundamental that it simply has to be one of those unenumerated rights the 9th amendment provides for? Likewise, Roe v. Wade. The constitution hasn’t a word to say about ‘privacy.’ Is there a constitutional right to privacy? So what about marriage? What about privacy? Unenumerated but obviously real rights? Or extra-constitutional legislating from the bench?

The real answer, of course, is that we don’t know definitively, and never will. Why would we? The 2nd amendment is really short, and nobody agrees about what it means. All texts support multiple readings; all texts, always, forever. The whole idea of ‘strict construction’ of constitutional texts is quite nonsensical.

But I would like to propose a possible rule of thumb that we might apply to this question. It’s the ‘of course’ rule. In other words, if you ask most people, ‘is the right to marry a fundamental right,’ they’d pretty much all say ‘of course.’ Unenumerated rights exist if basically everyone thinks ‘well, of course, that’s a right.’ Or you can turn it around. Ask most of your friends, ‘should the federal or state government have the final say in whether two consenting adults not of the same immediate family should be allowed to marry?’ Betcha anything the answer is unanimous. In fact, if you really want to have fun with it, say to your teenaged daughter, ‘honey, I think I should have final say over who you marry. I’m your parent, and I know best.’ Then stand back and watch the fireworks. Human beings simply do not make more important decisions in this life than the decision who to marry. So, it’s a right. Unenumerated, but a right. And thanks to the 9th amendment, i would argue (disagreeing with Justice Douglas in Roe) constitutionally protected.

So how about privacy? Is there an unenumerated but constitutionally protected right to privacy? I’ll grant that Justice Blackmun did us no favors with his unfelicitous language about ‘penumbras’ emanating from the 9th and 14th amendments. But let’s apply the ‘of course’ standard.

This is from Bruce Schneier, an internationally respected expert on security; on the measures governments take to protect their citizens.

Privacy is a basic human need. A future in which privacy would face constant assault was so foreign to the framers of the constitution that it never occurred to them to call out privacy as an explicit right. Privacy was inherent to the nobility of their being and their cause. Of course, being watched in your own home was unreasonable. Watching at all was an activity so unseemly as to be inconceivable to gentlemen of their day. You ruled your own home. It’s intrinsic to the concept of liberty.

And of all possible human communications, of all possible human decisions, what could be more fundamental than the right to make our own decisions regarding our bodies, our health, our treatment by our physicians? Doctor/patient confidentiality is just the beginning, not the end, of our right to have our health decisions kept to ourselves.

Of course, in abortion, there’s another consideration; the potential human life we call a fetus. I agree that balancing the right of a woman to privacy in her personal medical decisions, and the right of a viable human being growing in her uterus is a complicated and difficult task. That’s why Roe v. Wade did not legalize all abortions, under all circumstances. We might disagree with some of the specifics with which the Court tried to strike that balance, especially in the light of current medical advances. Still, I can’t help but think that the Court ruled correctly. Our continuing task must be to find ways to make abortion safe, legal, and rare.

So yes, although the Constitution does not explicitly mention marriage, I think it’s unreasonable to conclude that marriage is not a fundamental constitutional right. And although the Constitution does not explicitly mention privacy, a right to privacy can nonetheless exist. Unenumerated rights are rights nonetheless. The 9th amendment says so.



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