I really love the 9th Amendment to our Constitution. I love it because of its simplicity. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
It is so nebulously simple as to be relied upon by the courts rarely, but so indispensable simply because it reminds us that we do not solely depend upon what is written or given by man to define what it means to be free. The 9th Amendment is in our Bill of Rights for a reason. While it is rarely cited in judicial opinions, it is a pillar of the American experiment. It says to government authority, stay out of my private and personal life as long as my private and personal life does not impinge upon the rights of other citizens. It says stay out of my private and personal space as long as I have not disturbed or interfered with other citizens. It sort of says don’t tread on me.
I think of the 9th Amendment as the common-sense amendment. One needn’t be a lawyer to grasp its meaning. The founders knew they couldn’t think of every right to which the citizens of our new country were entitled or those to which we should be entitled as the new nation would grow and evolve. They knew there were a host of private and personal matters (rights) that should not be the government’s to divine or bestow.
Civil libertarians tend to like that thinking. Many lawyers do not. Lawyers generally like things spelled out in black and white, and that’s perfectly understandable. It’s certainly the bedrock of contract law. As the old legal quip goes, “An oral contract is worth the paper it’s printed on.” On the other hand, it is repugnant to contemplate the absence of a perfectly reasonable or logical right, such as the right to privacy, simply because no one knew how to define it or, perhaps, because a particular right wasn’t contemplated or considered 245 years ago. Besides, while few people would disagree that there should be a reasonable right to privacy, many might disagree on what is reasonably private.
We have James Madison, perhaps the most brilliant and thoughtful of our founders, to thank for the 9th Amendment. While Madison studied some law, he was never a serious or practicing lawyer. Instead, he was simply a serious and practicing thinker. His passion was the study of language. He devoted most of his studies to Greek and Latin and continued to study Hebrew and philosophy after graduation from the College of New Jersey (today Princeton).
Along with a few others like Washington, Hamilton, Jefferson, Franklin, and John Jay, he was an essential personality without whom it is hard even to imagine America. But it was Madison who understood the need for the nebulous 9th Amendment. Nebulous because it specified so little while recognizing so much.
The 9th Amendment didn’t come into prominence until it was cited by Justice Arthur Goldberg in the landmark 1965 case, Griswold vs. the State of Connecticut. That landmark case affirmed that married couples have the right to use birth control, a right now granted to all adults. Yes, the sale of birth control products was illegal in some states until the Supreme Court acknowledged that using birth control is a personal matter, a private matter. Today the courts recognize, because of the 9th Amendment, that the use of birth control products is a private, personal decision and, essentially, none of the government’s business.
The 9th Amendment was written (as were all of the first ten amendments) for those of us who are not lawyers so that the language is as plain and straightforward as possible. The wording of the 9th Amendment is so simple and devoid of esoteric language that lawyers often twist themselves into knots trying to divine what the drafters had in mind when they drafted the simple eloquent 9th Amendment to the Constitution. How could such a simple, declarative sentence that requires no mastery of the law to understand possibly be so important? The founders were telling us that some rights, very personal rights, needn’t be spelled out in our Constitution and that it would be impossible to identify all of them anyway. So, in drafting the 9th Amendment, James Madison made the founders’ intention simple and straightforward.
In other words, some rights simply speak to the privacy and personal lives of the people and do not, and should not, require the government’s permission. What incredibly progressive thinking for its time. Who had ever heard of a ruling government granting such common-sense rights to its subjects? Of course, that’s the point. Americans were not “subjects” in the old-world sense. They were “citizens” in the new-world sense. And our founders were determined to make these new American citizens a class by themselves in the time and the place known as the United States of America.
And later, when drafting the 14th Amendment, Congressman John A. Bingham of Ohio, the primary author of the first section of the 14th Amendment, was also quite unambiguous. “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
It is this 14th Amendment, the due process amendment, upon which the courts have relied to establish the right to privacy that all citizens (persons born or naturalized in the United States) enjoy. Some legal authorities argue that the simple 9th Amendment would have been a better basis today for acknowledging the right to privacy because it is eloquently simple, uncomplicated, and rests upon a foundation of common sense. They make a strong point. It speaks to what Justice Louis Brandeis called “the right to be left alone.”
Supreme Court Justice Samuel Alito argues in his draft opinion overturning Roe versus Wade that when Roe was codified in 1973, based on the 14th Amendment, no long-standing tradition recognized the right to abortion in the United States. For the right to terminate an early pregnancy to be protected by the 14th Amendment, Alito argues that “that right must be deeply rooted in this Nation’s history and tradition,” and the specific right to abortion is not. And Alito is right.
However, the Alito draft opinion on Roe raises the question of how much privacy is too much privacy. As a matter of personal privacy, the justification for terminating a pregnancy before fetal viability would have been reasonably accommodated by the 9th Amendment, which recognizes that some rights (personal and private rights) just shouldn’t require a state government’s approval.
According to Alito and the four other concurring Republican justices, a woman’s personal decision to terminate even a microscopic fertilized egg cell, a zygote, even one that is diseased, or the result of rape or incest, may be too much privacy to bear.