Subtitle: Black-Robe Disease. The only “living Constitution” is one that is followed; a Constitution whose text is ignored is a dead one.1
Standing over and looking down at the remains of the US Constitution, retired Associate Justice Anthony Kennedy recently admitted in an interview why he provided the fifth vote in Obergefell v. Hodges. “It seemed to me just wrong that under the Constitution, over 100,000 adopted children of gay parents could not have their parents married. I just thought this was wrong.” Well, there you have it. Kennedy admitted an open secret; he let his passions rule his reason and in so doing imposed radical change on an unwilling society. Obergefell was a judicial charade and fraud. It had nothing to do with established Constitutional or judicial standards; it had everything to do with progressing the living and breathing Constitution. Fabricating social justice rights is the essence of progressivism and the Scotus’ habit of pulling rights out of thin air isn’t new.
Like individuals, institutions are also creatures of habit. Scotus began, in Griswold v. Connecticut (1965), the unconstitutional habit of defining rights. In his concurring opinion, Justice Goldberg cited the 9th Amendment as the basis for invalidating Connecticut’s prohibition on chemical, commercially available birth control.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
In a blistering dissent, Justice Black rejected reliance on unwritten fundamental rights as an illegitimate pretext for unrestrained judicial discretion. He found no such “awesome powers over lawmaking.” The Ninth Amendment was “enacted to protect state powers against federal invasion”, and not as “a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs.”
Griswold let loose an avalanche of court-derived rights from abortion, long hair for schoolboys, pole dancing for erotic dancers, water quality standards for municipalities, and eventually marriage for homosexuals.2 While 14th Amendment abuse in recent years supplanted erroneous Ninth Amendment justification, Griswold and its right to marital privacy, penumbras & emanations are still the law of the land. Horrible Scotus decisions rarely go away.
It wasn’t always this way, in which a panel of unaccountable lawyers assumed sovereign powers and set society’s boundaries. Quite the contrary, our wonderful governing system as designed was Lockean in approach and application. Scotus’ assumption as owner and gate-keeper of all rights is a regressive throwback to the 17th century when absolute monarchs, the Stuart line, claimed possession of all English rights.
The great 17th century Rights of Englishmen were pried, often through great violence, from the Stuart kings.3 Through it all, the English kings remained sovereign. As such, they were the repository of all power. The Rights of Englishmen are gifts from the king.
From development of the Biblical truth that “all men are created equal,” and the denial of the Rights of Englishmen to England’s North American colonies, colonists slowly determined over the 18th Century that THEY, in society, were actually the sovereign owners of government. As such, We the People are the fount of rights civil, positive and political that do not violate God’s Natural Law.4 The Ninth Amendment says so.
Subject to the limitations of God’s Law, the Natural Law, the people and their civil society remain sovereign. They, and they alone, are the grantors of powers to government and civil rights to protect themselves.
Because society loans only certain powers to government, and the rest are retained, the national government itself has no claim whatsoever to new and independent rights or powers. The Ninth Amendment is not whimsical. Like the rest of the Bill of Rights its protections have a substantive end; they identify “the rights that the Constitution’s system of enumerated powers, indirect voting and separation of powers is designed to protect.” The inclusion of the Ninth Amendment was, in part, an attempt to be certain that rights protected by state law were not supplanted by federal law simply because they were not enumerated. There is no genuine theoretical obstacle to their judicial enforcement by Scotus.5 In a federal republic contradicting laws among the states should be common. So what if California and Massachusetts promote homosexual marriage while other states prohibit the practice?
As opposed to fanciful and often incoherent Scotus’ opinions, state laws and constitutions are typically grounded in reality. To make its decisions, the judiciary needs judicial standards. Society does not. The establishment of judicial standards or metrics from which to make their decisions must start with rights declared by society, not by Scotus itself.
The Ninth Amendment is consistent with American history and traditions. The sovereign people who established government, not subservient courts, have the power to declare rights they did not previously enumerate in the Constitution.
1. Barnett, R. E. (1989). The Rights Retained by the People – The History and Meaning of the Ninth Amendment. Fairfax, VA: The Cato Institute George Mason University Press. 257.
2. Levy, L. W. (1999). Origins of the Bill of Rights. New Haven: Yale University Press. 242.
3. Barnett 257. Magna Carta (1215), Petition of Rights (1628), Habeas Corpus Act (1679), Declaration of Rights (1689), Toleration Act (1689) Mutiny Act (1689), Settlement Act (1701).
4. Ibid. 90. “The Law of Nature is not, . . . a synonym for arbitrary individual preferences, but on the contrary it is a living embodiment of the collective reason of civilized mankind.”
5. Ibid. 303, 304, 311.