The Ninth Amendment.

July 10, 2022

The Ninth Amendment to the Constitution:

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

Justice Alito writing in Dobbs v. Jackson Women’s Health

          We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.

Griswold v. Connecticut, 381 US 479 (1965) (recognizing the right to contraception based on the right of privacy).

          Justice Goldberg, concurring, with Justice Brennan and Chief Justice Warren, joining:

          To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected . . .  because it is not mentioned . . . in the Constitution would violate the Ninth Amendment.

The number of times Alito’s opinion in Dobbs refers to the rule of judicial construction set forth in the Ninth Amendment:

          Zero.

Concluding Thoughts.

          The Framers of the Constitution gave future generations a guide for construing the Constitution. Justice Alito did not give the Framers the courtesy of mentioning the rule of construction they bequeathed to us. Instead, he created his own rule of construction that freezes rights recognized in the Constitution to an era when women could not vote, and Blacks were enslaved.  

          The comments section is open to all for this special Sunday edition.

Talk to you on Monday!