Weird Deer

I have a crush on the Ninth Amendment. I lay awake at night dreaming of its open embrace, agonizing over what I could possibly say to it, feeling wonderful and awful at the same time. Why? Just listen:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

That dulcet nugget comes near the end of the Bill of Rights, and it boldly pronounces that while the Constitution just finished laying out a lot of specific rights (free speech, jury trial, etc.), we still have other rights. And those other rights are just as important as the ones specifically mentioned by the big bad Constitution.

It’s like using your third wish to get as many wishes as you want, or saying “rights times infinity.”

I love it.

In his book Democracy and Distrust, John Hart Ely talks about how the Ninth Amendment casts a funny shadow by implying that we the people have rights we don’t even know we have–unenumerated rights.

Like what?

How about the right to marry, to housing, to education, to abortion, to engage in homosexual sodomy without the threat of criminal prosecution?

None of these are specifically mentioned by the Constitution. The last two are recognized as rights, but the other three aren’t, so they live in a sort of constitutional waiting room. The weird thing is that no one buys the argument that the Ninth Amendment protects any of these rights, mainly because there’s no telling where that argument would stop–what rights can’t the Ninth Amendment include? How about the right to have heroin for breakfast, to flick lit cigarettes at kittens, or to carry around your baby in a small leather briefcase?

Are those Ninth Amendment rights? We don’t know, because the amendment doesn’t say. That’s the problem with unenumerated rights.

This predicament has estranged the Ninth Amendment from mainstream constitutionalism and made it a go-to prop for harebrained arguments. (“I’m sorry, Mr. IRS, but I guess you didn’t realize that I have a Ninth Amendment right not to pay taxes that support welfare programs.”)

Here’s how Ely sums up most lawyers’ feelings about the Ninth Amendment:

“In sophisticated legal circles mentioning the Ninth Amendment is a surefire way to get a laugh. (‘What are you planning to rely on to support that argument, Lester, the Ninth Amendment?’)”

“Lester” is a nice touch. Is there a better name for a misguided soul needing a good patrionizing? Cletus, perhaps, but Lester will do just fine.

Ely goes on to say that while there’s no logical stopping-point to the rights that the Ninth Amendment might include, figuring out what the Ninth Amendment actually means makes a lot more sense than what we currently do with unenumerated rights (like the right to abortion), which is to rest them on the Due Process Clause of the Fourteenth Amendment:

“[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”

As conservatives are fond of pointing out, you can stare at those words for as long as you like and you still won’t find the word “abortion,” or even “schmishmortion.”

Probably the closest we could get is to say that the clause protects a general liberty interest that includes the right to choose an abortion. Or we can get more creative and say that we have a general property interest in our own bodies that includes the right to have an abortion performed upon it. Or, even more creatively, we can say that our interest in our lives includes a right to make such profound and life-altering decisions as whether to have a child. But even if the Due Process Clause protected those rights, it wouldn’t do so directly. All it says is that the state, if it wants to take our rights away, has to engage in “due process.”

In other words, as countless commentators have noted, the Due Process Clause only gives us process, not rights.

No one has an airtight explanation for how we squeeze the right to abortion out of the Due Process Clause. The way we do it goes under a telling heading–substantive due process–which, as Ely notes, is a “contradiction in terms–sort of like ‘green pastel redness.’”

The best explanation for substantive due process that I’ve been able to come up with is this: the Due Process Clause says that government can’t take away your rights without going through whatever process might be due. Exactly what kind of process is due depends on the life, liberty, or property interest at stake.

If the government wants to deprive you of $40 for parking illegally, it doesn’t make sense to give you a full-blown, time-consuming, and expensive trial because your interest–$40–is relatively trivial. But if the government wants to deprive you of ten years of your life by imprisoning you, a full-blown trial makes a lot more sense. Now imagine that you have certain interests that are so important and so fundamental to your status as a human being that no procedure, no matter how extensive, could justify their deprivation. The Due Process Clause would, by implication, protect these rights.

But that still leaves us with the tricky problem of figuring out exactly which rights reach this high threshold of importance. You might say abortion, I might say heroin for breakfast, and five lawyers on the Supreme Court might say none of the above. And that’s where the law on unenumerated rights ever-so-precariously stands right now.

Ely’s point is that when we’re trying to figure out which unenumerated rights to file under the heading “substantive due process,” we’re not really doing anything different than what we could be doing under the Ninth Amendment. And if it’s really the same exercise, why are we doing it through the lens of language that would only seem to guarantee process rather than the far more obvious language of the Ninth Amendment, which actually countenances unenumerated rights?

Ely doesn’t answer this question, but I have an idea. Sometimes people express their discomfort with their circumstances in weird ways. I hate this job, but instead of quitting I’ll be half an hour late every day. This task is stupid, so I’m not going to laugh at my boss’s jokes. The people at this party are boring, so I’m going to drink too much and take my pants off.

The people we’ve had on the Supreme Court have been uncomfortable with the idea of identifying unenumerated rights, maybe because they’ve been skittish about the underlying rights themselves, or more likely because they can’t get totally in bed with the idea that five lawyers, most of whom will probably be straight white men from ultra-refined backgrounds, can set national policy on big, important issues like abortion. And one way we can tell that they’re uncomfortable with this arrangement is by the weird textual hook on which they’ve hung our unenumerated rights–the Due Process Clause. This is the equivalent of being half an hour late in unenumerated rights analysis. If the Supreme Court really felt okay about what it was doing, it would take the much more direct route of the Ninth Amendment. But that would be going whole-hog for judicially identified unenumerated rights, and that’s a level of commitment that the Supreme Court–or at least five members of it–hasn’t ever had. One of the unfortunate consequences of pinning our unenumerated rights to the Due Process Clause is that it leaves them subject to attack not only on their own terms, but also on the grounds that they are so thinly tied to the Constitution’s text.

So while the Ninth Amendment is a loser in any argument, it’s a principled loser, like Walter Mondale, Barry Goldwater, the Oakland A’s, the Black Panthers, or Dennis Kucinich, the kind that leaves you thinking that it might have been right all along.

Love,
Paul