So we're in the home stretch of our review of the first ten amendments, which is a bit of a pun given what the Ninth Amendment actually is -- the one giving the USA the capacity to "stretch" the rights it grants to our wonderful society. Its text is this:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
By "retained by the people", the Framers clearly were not only allowing for the expanded definition of the rights of citizens, but were also cleverly limiting the powers of a central Federal government. "The people" in this phrasing include the States as the direct representatives of the citizenry to the Federal government -- the States were and still are "the people."
Interestingly, we went almost 200 years under the Constitution before it was actually tested to any extent, in affirming (or creating from whole cloth, depending on your viewpoint) a right of the citizen to privacy.
That is particularly interesting because from its position in the Constitution, we can readily see that the Framers intended to provide a specific list of rights that defaulted to the Federal government and also to the people and States. They then put in the Ninth Amendment to ensure that the courts were free to recognize that maybe the Framers hadn't covered everything -- and, lest the Federal sector try to co-opt more power, they could never claim that a right not cited explicitly did not exist.
In this series I have several times deconstructed specific words and asked what they meant. It makes sense to do that here with the simple question:
What is a "right"?
That's pretty heavy. I think an interesting way to approach answering it is to ask about what a "right" is in a less constitutionally bound country, like Venezuela, or Iran. Or North Korea, or whatever the territory run by ISIS is calling itself these days.
What a fun question. As I ponder it in that context, I come to realize that "rights" are, in fact, the currency of exchange between a people and their government. The more free a people are, the more they can stand up in a court of law and express their personal sovereignty and claim what devolves from it. The more free a people are, the more clearly defined that sovereignty is.
If I were to find the "right to privacy" to be a bit hard to define, and therefore hard to justify the Court's reasoning in recognizing and granting it to be on a par with the rest, well, in writing the above I think I get it a bit more. "Privacy" may be hard to nail down in terms we can present legal briefs on, but I'm starting to think that it is the fundamental right that defines our citizenhood, our personhood and all the other hoods that go with it.
I'm waxing poetic here, perhaps. But then a thought horribly interrupted my poesy, as I recalled a Supreme Court Justice, Ruth Bader Ginsburg, going to Egypt and telling them she wouldn't recommend they use our Constitution as a basis for their development of an organizational document for the going-forward republic there.
What the [place where Satan lives] was she thinking? Our Constitution properly places the specified, the assumed and even the future rights of the citizenry of this country squarely in the hands of the citizens where they belong. It ascribes those God-given rights where they were intended in a free society, and specifically boxes in government to prevent it from usurping them.
The Ninth Amendment is the effective guarantee to Americans that "if the Framers forgot about it, or there's a dispute about it, or it didn't exist back then, the default position is that it is a right of the citizens." That's the country I prefer to live in.
I'll bet the Egyptians would, too, no matter what Ruth Bader Ginsburg thinks.
Copyright 2015 by Robert Sutton
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