Tahlequah Daily Press


April 14, 2014

Right to privacy leans partly on Article 9

Some consider Ninth Amendment to be vague

TAHLEQUAH — While the other articles of the U.S. Constitution’s Bill of Rights are straightforward – at least, enough for Americans to bicker over in court – the Ninth Amendment might cause a bit of confusion.

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

There are no rights enumerated, and it might be difficult to argue one’s Ninth Amendment rights in court, though it has been done successfully.

“What this means is that just because certain rights are specifically listed in the Constitution, this should not be interpreted to mean that these are the only rights Americans have,” said Dr. Daniel Savage, chair of the Department of Geography, Political Science and Sociology at Northeastern State University. “Other individual rights may also be available to Americans, if the judiciary – which has the power of interpreting the law – decides they exist.”

An example is Americans’ expectation of privacy, though no such right is listed in the Constitution. The Supreme Court formally found an inherent right to privacy in the 1965 case of Griswald v. Connecticut, which overturned a state law barring use of contraceptives. The court said the law violated marital privacy and cited the Ninth Amendment. Subsequent privacy cases have used the 14th Amendment as legal basis. In 1973, the court ruled abortion a privacy issue in Roe v. Wade.

“The Ninth Amendment is a catch-all,” said Denise Deason-Toyne, an attorney and president of Save the Illinois River Inc. “Had the Framers attempted to list every conceivable right or protection, they would have left things out that could lead to the Supreme Court’s saying, ‘Look at this list – they didn’t include x-y-z rights on purpose.’”

Because the right to privacy is not enumerated, there continues to be legal debate about whether the protection really exists. Savage believes it couldn’t be any more obvious: It’s right there in the Ninth Amendment, and elsewhere.

“The court did not just make the right up out of thin air,” he said. “Our system is based on the concept of limited government, meaning there is a private realm that the government has no business entering. Our religious beliefs, for example, are our private business; no interference by government is allowed. In the Griswald case, the Supreme Court pointed out this right to privacy is also implied by the First, Third, Fourth and Fifth amendments.”

Savage said courts might discern the public and private realms using the “harm principle” of John Stuart Mill, the 19th Century English philosopher. Mill wrote that any activities that do not harm others should be deemed private.

“Harm is generally confined to physical and economic harm,” Savage said. “Thus Thomas Jefferson, in his ‘Notes on Virginia,’ wrote in 1785 that it ‘neither picks my neighbor’s pocket nor breaks his bones whether I believe in 20 gods or none.’ What Jefferson was saying is that his religious beliefs were private because they did not harm his neighbors either economically or physically.”

The amendment was included to convince anti-federalists – those with little enthusiasm for a central government – to support the new constitution. The anti-federalists had demanded the Bill of Rights, but were simultaneously worried it could be abused.

“During the ratification process, there was some concern that listing certain rights would lead people to believe other rights were not considered protected,” said State Rep. Mike Brown, D-Tahlequah. “The Ninth Amendment demonstrates the Framers’ belief that certain fundamental rights exist, even if not expressly included in the first eight amendments.”


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