Quick, what’s the Ninth Amendment to the Constitution? If you know, consider yourself a Constitutional Whiz.
Part of our Bill of Rights, it gets almost no airtime when compared with the First and Second amendments.
It’s short — just 25 words: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Legal scholars have vigorously debated the import of this sentence.
Here’s one reason why “Number Nine” matters. Nowhere in the Constitution does the word “privacy” appear. Yet the notion of a “right to privacy” predates our founding documents. The Ninth Amendment provides one vehicle to ensure this individual right is respected and protected.
During the contentious hearings that led up to the Senate’s refusal to confirm Robert Bork to the Supreme Court in 1987, Judge Bork testified that “nobody knows what that thing (privacy) means.” Bork also strangely referred to the Ninth Amendment as an “inkblot” — a weird formulation that underscores the Senate’s wisdom in refusing him a seat on the Court.
Bork was a self-professed “originalist,” as was Justice Scalia — who insisted that, “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”
Justice Clarence Thomas and Judge Gorsuch are also originalists. As such, one might presume they would take all ten amendments of the Bill of Rights seriously. Alas, no. Gorsuch may be a far more artful dodger than Bork, but the game is the same. Originalism is a canard. Justice Brennan rightly described it as “little more than arrogance cloaked as humility.”
Is this notion of a “right to privacy” some new-fangled idea that didn’t exist back when our nation was founded? Far from it. English common law, which forms the basis for our own jurisprudence, clearly recognized this right.
In 1763, William Pitt famously declaimed before Parliament that, “The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!” Our own Supreme Court cited Pitt’s speech in a landmark privacy decision.
One need not embrace originalism to share Madison’s concern that judges might interpret the Constitution as limiting rights only to those enumerated in that document. And, when it comes to the “right to privacy,” what could possibly be more private than our bodies? That’s why the Court recognized the primacy of privacy in Griswold v. Connecticut (contraception) and Roe v. Wade (abortion).
It’s ironic — no, make that absurd — when members of the judicial branch who worship at the altar of originalism blithely jettison a right that has an honored history.
If Gorsuch has misplaced his copy of the Bill of Rights, I’d be glad to share mine with him, gratis. Perhaps, if he devoted a few years to reflecting on its meaning, he’d become a suitable candidate for the Supreme Court. Right now, he doesn’t even seem to know how to count to nine.