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October 18, 2005
Don't Forget the Ninth Amendment
In this post, I'm not going to discuss either Harriet Miers' nomination to the Supreme Court or Roe v. Wade and I sure don't want to get into whether Roe was correctly decided. But I will use the intersection of Roe and Miers' nomination as an example in a short comment on how some seek to limit the range of the Constitution in a way that the founders likely did not want to limit it. Let's start with this suggestion from Powerline (one of several things Miers might say at her confirmation hearings).
Her disagreement with Roe is not based on her opposition to abortion, but rather on her opposition to judicial usurpation. The Constitution says nothing about abortion, and the idea that the Court suddenly "discovered" the right after nearly 200 years is ridiculous.
Powerline's concern is not that the Constitution does not mention abortion; their concern is that it does not mention it as a right. But the founders provided in the Constitution for the possibility that other rights might be "retained by the people."
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Ed Brayton had a good review of the Ninth Amendment a few weeks ago. And here is his conclusion,
. . . asking "where does the constitution say you have the right to do X" is asking the wrong question. Instead, one must ask where in the Constitution is the authority given to prohibit X.
It is exactly in the answer to the question, "Where in the Constitution is the authority given to prohibit X" that one also learns the answer to the question of how "the Court suddenly 'discovered' the right after nearly 200 years." The right to abortion and its underlying right, the right to privacy, was there all along. It just took two hundred years for the people to get around to retaining it through the Court.
Posted by DuaneSmith at October 18, 2005 10:10 AM | Read more on Current Events |
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