Opinion: One-minute book: The slow movement of the glorious ninth

In the contraception case Justice Goldberg recounted some of the history of the Ninth Amendment. He reminded his fellow judges that ‘since 1791 it has been a basic part of the Constitution which we are sworn to uphold.’

Both the Bork view and the states rights arguments are strained and desperate attempts to avoid the plain meaning of the Amendment. All we have to do is look fully at what it says. It speaks of rights ‘retained by the people,’ not rights ‘retained by the states.’ It openly tells us that by listing some rights, the Constitution does not thereby ‘deny or disparage others retained by the people.’

In this case the Frequently Asked Question is: ‘The Bill of Rights provides a list of specific rights that are protected from invasion by the federal government. Does this mean that the federal government can violate other rights if they aren’t on the list?’ The Ninth answers ‘No. The Bill of Rights is not complete. Other rights exist, and the federal government must respect them.’

Strictly speaking, the Ninth Amendment does not create any rights; it simply upholds the vitality of existing rights. The Fourteenth Amendment then provides a federal guarantee against violations of those rights by state government.

Today, we think of common law as being specific to each individual state or country. But until the twentieth century, the common law was considered to be a separate entity, shared by all common law courts, rather than a mere aspect of a specific state’s law.

Sedgwick’s remark gave rise to a spirited exchange. Another representative responded to Sedgwick by agreeing that the rights listed in the proposed constitutional amendments were inherent; the amendments were simply supposed to prevent the government from infringing them.

The persistence of natural law in judicial opinions and treatises was notable, but ultimately less important than its influence on the emerging antislavery movement.

Yet another pronounced that legislation establishing slavery contravenes ‘the law of natural justice, and cannot establish a claim which ‘white men are bound to respect’—the last being a bitter reference to Chief Justice Taney’s infamous dictum in Dred Scot that black people have no rights that ‘white men are bound to respect.’

In striking a balance, Harlan explained, the Court must look at the country’s living tradition. A decision ‘which radically departs from it [the living tradition] could not long survive, while a decision which builds on what has survived is likely to be sound.’

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The Supreme Court has dealt with the topic of the right to die gingerly, and any recognition of this right must be tempered with an appreciation of the potential problems.

[No text. Page 145:] In the 1973 Rodriguez ruling, the Supreme Court rejected a challenge to the grossly unequal treatment of children in the Texas school system. For every $600 spent in the richest districts, less than $250 in state funds were spent in the poorest. Too bad, said the Supreme Court.

Under existing law the nature of the property made no difference; a vacant lot receives the same protection from eminent domain as a lifelong home. As Justice Thomas pointed out in his dissent, no compensation is provided ‘for a subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes.’

[No text. Page 197:] We cannot be sure precisely what vision of human rights was embraced by the framers of the Ninth Amendment. What we can be fairly sure about, however, was that their views did not correspond with those of Justice Scalia and other current conservatives. The architects of our constitutional system did not see human rights as a limited list of specifics tacked on at the end of the Constitution.

13. While this book was in production, the New Jersey Supreme Court rejected the fundamental rights argument in Lewis v. Harris but held that same-sex couples must be given the legal incidents of marriage, based on the view that the state constitution bars discrimination on the basis of sexual orientation.