More on the 9th Amendment and Why It Matters

After stumbling across the 9th Amendment a couple days ago and concluding that it’s been unjustly ignored by the Supreme Court, I wanted to see if it’s gotten much attention in all the discussion of the unofficial opinion overturning Roe v. Wade. A Google search for “News” about “9th Amendment” only turned up a few items, mostly earlier in the year.

The first was by a New York University law professor in yesterday’s Los Angeles Times:

The right to abortion is what’s known as an “unenumerated” right, meaning that it has constitutional stature even though no text in the Constitution — short of the abstract “liberty” protected by the Fourteenth Amendment — protects it. The idea of such unwritten rights may seem puzzling, but it’s well-established in our constitutional system.

The 9th Amendment explicitly acknowledges their existence, stating that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And the Supreme Court has held that the right to travel across state lines and the right to vote (among many, many others) are constitutional rights even though they’re not specified in the text. So the question is not whether unwritten rights will be recognized, but which. And that of course requires the court to tell us how it will distinguish what’s in from what’s out.

[Justice Alito’s] Dobbs draft opinion takes a remarkably stingy approach to that question. It relies on the 1997 case of Washington vs. Glucksberg, which held that the Constitution did not protect the right to physician-assisted suicide. That opinion said that unwritten rights would be recognized only if they were “deeply rooted in this Nation’s history and tradition”. . . This approach effectively freezes an 18th- or 19th-century understanding of rights in place. The draft opinion’s application of this test doomed the right to abortion.

This approach is bizarre because it ignores the changes more recent cases have made to the Glucksberg test. Most prominently, the Obergefell case in 2015 not only made marriage equality the law of the land, but also transformed the role of tradition in discerning unwritten rights. The court rejected the idea that the rights inquiry could be “reduced to any formula.” It instead embraced an approach that “respects our history and learns from it without allowing the past alone to rule the present.” This shift allowed the justices to recognize same-sex marriage as a fundamental right. . . . Obergefell’s innovation was that it struck the chains of history from the inquiry of which unwritten rights would be recognized. . . .

The Constitution will gradually lose the support of the nation it governs if the court binds its interpretation of unenumerated rights, or its interpretation of abstract provisions like “liberty,” so closely to the past. The draft opinion is not just an assault on abortion, or on same-sex marriage, or on contraception. It’s an assault on the future of the Constitution.

I’d say Alito’s opinion is also bizarre because it ignores the clear meaning of the 9th Amendment. But he’s had lots of company.

A March article at the FindLaw site asks “Why Should We Care About the Ninth Amendment?” It explains why James Madison wrote the 9th Amendment and says it’s “seemingly so powerful”, but doesn’t really explain why it became one of the Constitution’s “most overlooked provisions”, the “redheaded stepchild of the Bill of Rights”:

The Supreme Court has largely ignored this amendment in all of its extensive jurisprudence. In more than two centuries of precedent, the court has yet to use the Ninth Amendment as the sole basis for a ruling.

In Roe v. Wade, which dealt with rights not mentioned in the Constitution, the 9th Amendment was referred to but downplayed in favor of the 14th Amendment. From the majority opinion:

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether to terminate her pregnancy.

My guess is that the main reason the Supreme Court has almost always ignored the 9th Amendment is the Court’s conservatism. Why recognize that the common people have a right if some previous judge hasn’t already said so? We don’t want the citizenry running wild, exercising their rights all over the place. This disheartening article at Vox, “The Case Against the Supreme Court”, offers lots of evidence for this conclusion:

While the present Court is unusually conservative, the judiciary as an institution has an inherent conservative bias. . . .  For nearly all of its history, it’s been a reactionary institution, a political one that serves the interests of the already powerful at the expense of the most vulnerable. And it currently appears to be reverting to that historic mean.

Finally, it was surprising to learn that the biggest proponent of the 9th Amendment in recent history has been Joe Biden. In 1987, Biden was chairman of the Senate Judiciary Committee. He asked Robert Bork about the 9th Amendment. According to this interesting article at Politico (which has much more about the amendment), Biden’s question eventually led to Bork’s Supreme Court nomination being rejected:

Soon after the committee reconvened from its first recess, Biden pressed Bork on his criticism of the Supreme Court’s decision in Griswold [the contraception case]. Biden expressed his concern that Bork’s rejection of the court’s conclusion that the Constitution contained a general right to privacy — either in the penumbra created by the Bill of Rights . . . or in the Ninth Amendment — would imperil all of the Court’s subsequent decisions that relied on the precedent from Griswold. “It seems to me if you can’t find a rationale for the decision of the Griswold case, then all the succeeding cases are up for grabs,” said Biden.

Bork shifted uncomfortably in his seat before firing back at Biden. . . . “I have never tried to find a rationale, and I haven’t been offered one,” Bork said dismissively . . .

From his perch behind the committee table, Biden allowed a smile to spread across his face. He had successfully set the trap. Now he just had to wait for Bork to walk into it.

Two years ago, Biden said this at a Democratic candidates debate:

The only reason women have the right to choose is because it’s determined that there are unenumerated rights coming from the Ninth Amendment in the Constitution.

Then, in early February, President Biden told the leaders of the Senate Judiciary Committee that he wanted a Supreme Court candidate with a judicial philosophy “that suggests that there are unenumerated rights in the Constitution, and all the amendments mean something, including the Ninth Amendment”.

This week, after Alito’s opinion was leaked, Biden issued this warning:

One of the issues this court, many members of the court, have not acknowledged is there is a right to privacy in the Constitution. If this decision holds, it really is a radical decision. All of the decisions made in private life, who you marry, whether you can have an abortion, how you raise your child… it is a fundamental shift.”

The president went on to say that “one of the reasons” why he voted against “a number of members of the Court” was because “they refuse to acknowledge that there’s a 9th Amendment.”

Common sense says we have lots of rights not mentioned in the Bill of Rights, just like the 9th Amendment says, despite what some judges and law professors say, and that, as society changes, rights can evolve and take on more importance. The internet, for instance, makes the right of privacy even more important than it used to be. After women’s rights became a key issue in the 60s and 70s, five Republican justices and two Democrats realized that laws banning abortion were outmoded.

The Find Law article cited above concludes:

We can perhaps hope that [Biden’s recent] remarks [concerning the 9th Amendment] will be a rallying cry for the nation’s legal minds to think twice about it—or, at the very least, remember that it exists.