Politics & Media
May 09, 2022, 05:57AM

The Abortion Opinion and the Ninth Amendment

The purpose of the Constitution is to limit the power of government to interfere with our rights.

7b87be78 954b 4ead 949f b5be8930a46e.jpeg?ixlib=rails 2.1

"The enumeration of the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."That's the Ninth Amendment. It's a dead letter in jurisprudence, perhaps because taking it seriously would hobble the federal government in myriad respects. But if I were looking in the Constitution for abortion rights, and much more generally for the right to privacy, I'd start right there.

One of the few instances in which “anti-disparagement” has been applied by the Supreme Court was Justice Arthur Goldberg's concurring opinion in Griswold, the 1965 decision that held that neither states nor the federal government can restrict access to birth control. "To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment, and to give it no effect whatsoever," Goldberg wrote.

If Goldberg's interpretation had held sway, Roe might’ve been decided on a less vulnerable basis, and the “unenumerated” rights of Americans might be better protected. They ought to be. I’ve been glad to hear, from people such as Elena Kagan and Ketanji Brown-Jackson, that some version of “originalism” or “textualism” is the consensus view of Constitutional interpretation these days. If we're trying to figure out what the Constitution means, there's no plausible alternative to trying to figure out what the people who wrote it and ratified it thought it meant, and how the words in it were used, circa 1787.

That doesn’t make the document irrelevant to matters it doesn't explicitly mention, or that couldn’t have been explicitly mentioned in 1787. In the draft decision, Samuel Alito points out several times that "the Constitution makes no reference to abortion," as though that decided the matter, more or less. Then he argues that the right to abortion care and perhaps the right to privacy, isn’t implicitly contained in any provision. To all of which, I say: yes it is, right there in the Ninth Amendment, which, if the Court had paid any attention to it all these years, would be second in importance only to the First.

There’s no mention of abortion in the Constitution. There’s no mention of marriage. What I'd conclude from the Ninth Amendment, and from the expressed intent of the Constitution as a whole, is that you have the right to end a pregnancy, or marry whomever you please, until such time as state governments institute laws restricting you. But when they do, they’ll be in violation of the 14th Amendment, which prohibits states from making laws which strip their citizens of rights guaranteed under the Constitution.

The Bill of Rights was added to the Constitution over the objections of many of the document's proponents, including, initially, those of James Madison, who ended up changing his mind and drafting it, essentially because he didn't think the Constitution could be ratified without it, as it shouldn’t and probably would not have been. Madison's worry, and that of a number of others, was that if they enumerated a list of protected rights, this would be construed by officials and courts as saying that people had no other rights.

But the Constitution's enumerated rights are, as the framers understood, not adequate to prevent continual government interference in matters that ought to remain within the zone of personal autonomy or family decision-making.

As legal scholar Randy Barnett has argued, it would in some sense be impossible to enumerate all the rights that distinguish liberty from tyranny. For example, as Alito points out about abortion, the Constitution doesn’t mention the style of traditional men's headwear known as the fedora. If you concluded that the state of Wisconsin was well within its rights to ban fedoras, you’d have misconstrued the nature of the Constitution. I'm not talking about the fedora as religious or political expression, but simply as a head-warmer or stylistic preference.

If the FBI were enforcing a dress code—making all men wear jackets to dinner, for example, or prohibiting them from doing so—they wouldn't be violating any explicit provision of the Constitution, which doesn’t enshrine the right to dress yourself. But it would obviously be unconstitutional for all that, or simply incompatible with the basic liberties the document’s designed to protect.

Again, the Constitution doesn't mention marriage at all. That should lead directly to the conclusion that state governments can’t prohibit gay marriage, for example. The Constitution doesn't mention most things, really. It doesn't mention magazines. That doesn't mean that states can ban magazine publication.

The Ninth Amendment doesn’t directly express, say, Madison's intentions with regard to abortion, magazines, or fedoras, which were still struggling to overcome the hegemony of the powdered wig with regard to the heads of the framers. What it does express is the central purpose of the Constitution of the United States: to restrain the power of government from destroying the liberty of the people.

That’s the basic intention of the whole document. So I’d reframe the legal question. The Ninth Amendment shifts the burden of proof: the question isn’t whether women have the right to end a pregnancy, but whether governments have the right to restrain them.

—Follow Crispin Sartwell on Twitter:@CrispinSartwell


Register or Login to leave a comment