Enumerated vs. Unenumerated Rights

By Ken Concannon
Herald Columnist
(From the issue of 9/1/05)

The Senate Judiciary Committee hearings on the nomination of Judge John Roberts to fill retiring Justice Sandra Day O’Connor’s seat on the Supreme Court will begin on Sept. 6. The exchange between the strict constructionist Roberts, who has argued before the U.S. Supreme Court 39 times, and the liberal pro-abortion contingent of the Judiciary Committee, who will do their best to discredit the conservative jurist, will be at the very least entertaining and at its best, thought provoking.

I expect that the thought-provoking part will come during the exchanges between Roberts and Delaware Senator Joe Biden, a liberal Catholic and zealous defender of Roe v. Wade. Biden’s concern will be Robert’s attitude toward "unenumerated rights" like privacy, the right to abortion, etc., that are not specifically spelled out in the Constitution or any of its amendments.

The Bill of Rights, the Constitution’s first 10 amendments, was offered as a package by the framers of the Constitution over 200 years ago to protect the rights of individuals and to limit the power of the federal government. The first nine amendments focus on the rights of individuals.

The 10th Amendment reserves to the states powers not already granted to the federal government by the articles of the Constitution. By so doing, it serves two important purposes. It limits the reach of the federal government and it enables the citizens of each state to determine the kind of society in which they want to raise their families.

The First through the Eighth Amendments enumerate specific rights — e. g., freedom of speech, freedom of religion — that were representative of the reasons why the American people separated themselves from England. These enumerated rights, however, were never considered to be all inclusive. So a Ninth Amendment was added, which simply says that: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The Ninth Amendment says that there are other rights, unenumerated rights that are not listed in the Constitution.

Curiously, the Ninth Amendment has yet to be employed as the basis for a Supreme Court decision, not even as the basis for the rights foremost on the minds of Biden and the Senate Judiciary Committee’s liberal contingent — privacy and abortion. The right to abort found in Roe v. Wade 32 years ago was based on a right to privacy established in Griswold v. Connecticut a few years earlier — and that right was based on "emanations from penumbras" in the Bill of Rights, but not on the Ninth Amendment. One wonders why.

I suspect that the Ninth Amendment hasn’t been cited by the liberal activist Supreme Court Justices who gave us Griswold and Roe and their several awful descendants because these decisions were rendered by liberal Justices who have during the same period done their utmost to remove all vestiges of religious sentiment from public decision-making. And the Ninth Amendment echoes, in the Constitution, a sentiment expressed in the Declaration of Independence that was well known to the framers of the Bill of Rights — which our rights come from a Higher Power than the state.

History tells us that governments that ignore the truth of that sentiment invariably treat their citizens badly — because the people who run such governments believe that what they can give they can take away.

The Roe v. Wade decision, camouflaged as a civil right bestowed upon women, spat directly in the face of the right to life clause of our founding document, the Declaration of Independence — and indirectly at the Ninth Amendment that was derived from the principles expressed in that Declaration. The consequence of that expectoration has been the inexorable slide away from the principles upon which this country was founded toward a government controlled by an elitist judiciary who see themselves as the Highest Power.

While bestowing upon us unenumerated rights — e.g., abortion, sodomy — that have no precedent either in the Constitution or our founding document, the Justices that Biden and his cohorts favor are wreaking havoc with the rights that have already been enumerated in the Constitution — e.g., freedom of religion (in the First Amendment) and the right to own property (in the Fifth Amendment).

Strict constructionists, like Roberts, don’t do that kind of thing. I pray that the nominee, when he’s asked about unenumerated rights, explains that to his inquisitors.

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