Same Sex Marriage and The Ninth Amendment

The Supreme Court will consider two cases relating to gay marriage this week.[1] The exact issues are still up in the air, so it is possible that the court will not directly address the question of whether or not gays have a constitutional right to marry. It would be nice to think that all of the justices will approach the case with an open mind, but apparently some are already pre-disposed. I’m talking about Justice Antonin Scalia who pretty clearly broadcasted his views this past fall at a book reading at the Conservative American Enterprise Institute. In response to a question about hard and easy cases he said: “The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.” [2]

So, apparently for Scalia, individual rights protected under the Constitution are only those that were in existence in 1791, when the Bill of Rights was adopted. But doesn’t the Ninth Amendment seem to imply otherwise?

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.[3]

 

This seems to imply that certain rights, for example the right to marry, belong to the people to sort out as they please. But in Scalia’s view the “rights retained by the people” referenced in the Ninth Amendment are only those in existence when the Bill of Rights were ratified.

While the language of the Ninth Amendment seems to suggest otherwise, it is certainly not clear, so perhaps Scalia is right. It would have been wonderful had the drafters of the Ninth Amendment said that “other rights, meaning those currently known and developed in the future, … are retained by the people.” But alas they were not that clear.

But is there anything in the history of the drafting of the Ninth Amendment that can help us understand what the draftsman meant? Did they specifically limit “rights” to current rights, or did they consider that other rights might be developed by the people? Perhaps as they were debating the language of the Amendment they specifically said that the purpose of this amendment is to preserve every right, now known or potentially contemplated in the future. Let’s look at the development of the Ninth Amendment to see if there’s anything that can give us any insight into what rights the drafters were talking about.

During the Ratification debates in the states, a number of states ratified on the condition that a Bill of Rights be adopted. Some of those states submitted proposed amendments, and all were based on the idea that the powers of the national government should be limited.

The Virginia Ratifying convention included a detailed list of a proposed bill of rights, as well as a number of broad statements of principle, which addressed the apportionment of individual rights and government powers. The statements of principle clearly set out the idea that people should have braod rights, and the government power to inhibit those rights should be limited:

1st. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

 

When James Madison drafted a proposed Bill of Rights, he included a provision that explained that the listing of rights was not meant to otherwise limit the rights of the people.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.[4]

 

When Madison presented his proposed Amendments, he gave a lengthy speech to explain his underlying reasoning. He also described the purpose behind most of the provisions, including the nascent Ninth Amendment:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the [language set out above.][5]

 

Through the political give and take in Congress we ended up with the Ninth Amendment we have today. But the purpose of the Ninth Amendment was, clearly and explicitly, to limit the power of government. It achieves this purpose by recognizing that the people have certain rights. It does not specifically delineate those rights, but notes that they are more than the specific rights set out in the Bill of Rights.

Scalia has said that he agrees that one purpose of the Constitution, and the Bill of Rights, is to limit the power of government. During oral argument for the Affordable Care Act, when discussing whether the individual mandate was allowable under the Necessary and Proper clause, Scalia said “The Federal Government is not supposed to be a government that has all powers, … [the idea was] that it’s supposed to be a government of limited power.”[6] But if we limit the rights of individuals to those rights in existence in 1791, as Scalia suggests, then aren’t individual rights limited? And if individual rights are limited, doesn’t that mean that the power of government to impose itself onto human affairs, can expand?

The thing is society changes over time.  It has changed in the past and it will continue to change in the future. And as society changes the condition of the humans that make up society also change. As the social environment changes, the way people behave and interact with each other also changes. People have the ability to do new and different things, because new and different things have become available. And as people acquire the ability to do new and different things, doesn’t that mean that people’s rights change as well?

But if society changes, behaviors change, and options and opportunities change, then rights must also develop or change over time. If rights are frozen, as Scalia suggests, then doesn’t the power of government expand? If you prevent the expansion of individual rights as society changes, don’t you allow for the expansion of government power into new areas of human behavior not considered by the drafters of the Bill of Rights? That seems to be the opposite of what Scalia has said he believes, and also the opposite of what appears to be the purpose behind the Ninth Amendment. If you want is to limit the power of Government in a changing society, isn’t the best way to do that by allowing the expansion of individual rights?

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[1] Hollingsworth v. Perry, U.S. Supreme Court, No. 12-144; and U.S. v. Windsor, U.S. Supreme Court, No. 12-307. 

[2]  This was at a reading of his new book at the American Enterprise Institute on October 5, 2012. See, http://www.cbsnews.com/8301-250_162-57526578/scalia-abortion-death-penalty-easy-cases/ (Emphasis added.) Note: Scalia does not allow taping of his events, so this record is from the CBS News web site. The site does not indicate the specific wording of the question he was asked.

[3] U.S. Const. Amend IX.

[4] Available on line at: http://www.usconstitution.net/madisonbor.html

[5] Id.

[6] National Federation of Independent Businesses, et al. v. Sebelius, 567 U.S. ___ , 132 S.Ct. 603, 181 L.Ed.2d 420 (2012). The audio transcript of the oral argument, where we can hear Scalia make this s available on the Supreme Court Web Site at http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-393