The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Apologies on the weekly list I enjoy compiling. There is extraordinary talent to be found on the internet.
I’m worn down.
Too many medical tests this week, with prospective surgery a month or two or a few down the path of life.
Age imposes limits that never seemed to apply in my distant youth.
But a lot is happening in our universe that cannot be ignored, even in favor of health issues.
The logic applied half a century ago in Roe v Wade is not hard to understand.
The 9th Amendment says that, just because some rights are not listed in the Constitution, it does not mean those rights are not to be protected.
Those freedoms are secured, enshrined as unenumerated rights.
The 14th Amendment says those protections apply not only to federal law, but to state and local laws as well.
This principle, that unenumerated rights must be protected, was applied in many cases.
In 1967, Loving vs Virginia became one of those cases. It involved marriage between couples of different races.
My wife and I have been married for 22 years. Had we met and gotten married as teenagers here in Missouri, our marriage would have been dissolved. She and I would have been imprisoned, presumably in separate cells, for 2 years. Interracial marriage was a felony under Section 563.240 of the Missouri Criminal Code.
The plain language of the 9th Amendment means our unenumerated right to interracial marriage has been constitutionally protected even before we found ourselves in love.
Other cases decided on the unenumerated rights covered by the 9th Amendment have included:
- The right to birth control.
Laws making contraception illegal were overturned.
- The right of gay people to gay relationships.
The practice of imprisoning gay people for having gay relationships was ended.
- The right of gay people in love to marry each other.
Prohibitions against gay marriage were overturned.
- The right to privacy.
Up to then, even adult heterosexual couples could be prosecuted for the wrong kind of sex. The 9th Amendment said the right to privacy would take government bureaucrats out of the bedrooms of ordinary citizens.
The logic applied this week to overturn Roe v Wade is not hard to understand.
The 9th Amendment no longer means what it says.
Those unenumerated freedoms, the ones that exist even though they are not mentioned in the Constitution, are protected, but only if they were deeply rooted in the nation’s history and traditions when the first ten Amendments were adopted in 1791.
Justice Clarence Thomas, in his concurrent opinion overturning Roe, made an obvious point. In a sense, it was a wonderfully unselfish point. He and his wife are an interracial couple whose marriage, like ours, is lawful everywhere in the US because of the 9th and 14th Amendments.
Lawful.
In every state.
In every locality.
At least for now.
Justice Thomas says the court has not gone far enough. Not yet.
Other cases decided back when the 9th Amendment meant what it says, should be reconsidered now that it means something different. The Supreme Court should consider overturning other rights.
- The right to Birth Control
- The right of gay people to gay relationships
- The right of gay people in love to marry each other
- The right to privacy
Justice Thomas did not mention a potential review of the rights of interracial couples.
You can’t think of everything.