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The Rights of the People, Denied and Disparaged

By Sahand Rabbani


I. INTRODUCTION: THE FORGOTTEN TWENTY-ONE WORDS

In 1955, Bennett B. Patterson of the Texas Bar published a book on what had, at the time, been a largely unexplored topic in U.S. Constitutional law. Former dean of Harvard Law School Roscoe Pound called Patterson's unearthing of this crucial artifact of our legal system a "real service" (Pound iii). Patterson had not discovered an obscure clause hidden between the lines of delineated powers or the unusual use of a conjunction that would rock our perception of the Founders' intentions. Rather, he had found twenty-one conspicuous words--conspicuous because they were highlighted by the heading "Amendment IX." "The enumeration," reads the amendment, "in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Perhaps they are the most important twenty-one words in American law, for they protect an infinitude of rights retained by the people that no amount of ink and paper can enumerate. To invoke the sarcastic analogy of Congressman Sedgwick as documented in the Annals of Congress, 15 August 1789, during the discussion on the Bill of Rights, the Ninth Amendment effectively guarantees that "a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper" (Annals 163).

With this in mind, one might feel that there is little ambiguity where the intention of the Ninth Amendment is concerned, little opportunity for debate or conflict. And indeed, at the time Patterson had written his treatise entitled The Forgotten Ninth Amendment, he had thought so too: "There should really be little or no doubt with respect to the intended meaning of the Ninth Amendment, because from its language, its purpose and intent is obvious" (19).

Patterson's clarity of mind did not foreshadow the ambiguities and Constitutional drama that would begin with the 1965 Supreme Court decision in Griswold v. Connecticut. This case may arguably have been the first true application of the Ninth Amendment in its solitary form. Griswold marked the opening of the Pandora's Box of unenumerated rights, returning the Ninth Amendment to the arsenal of personal freedom. Ever since, it has been the controversial and unpredictable warden of civil liberties, a tool, however, that is still seldom used because of disagreements on how to use it and because of fears of what true liberty might entail.

In fact, the judiciary's erratic interpretation and frequent oversight of the Ninth Amendment has allowed for unconstitutional abuses on the part of the U.S. federal and state governments. Through a consideration of the Framers' intentions, a history of jurisprudence, and the examination of unenumerated rights as they relate to two particular case studies--sexual freedom and drug criminalization--the inconsistency and confusion that characterize the various interpretations of the Ninth Amendment become evident. The selective permission and prohibition of unenumerated rights entirely defaces the concept of individual liberty. Such irresponsible behavior renders the Ninth Amendment ineffectual by leaving the classification of unenumerated rights entirely up to the federal and state governments and out of the control of the people.


II. THE FOUNDERS' INTENTIONS: A SEMANTIC NEBULA

In his speech to the House of Representatives, Madison qualifies his suggested amendments with a warning: "a bill of rights…are unnecessary articles of Republican Government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest." He stresses that "all [powers] that are not granted by the constitution are retained…the great residuum being the rights of the people" (Annals 114). Even prior to Madison's speech, Hamilton spoke of the superfluity of enumerated rights in The Federalist No. 84, asking, "Why…should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?…[T]he Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given […]." Through analyses of letters, minutes, and speeches such as these, jurists have strained and strain yet to ascertain Madison's original intentions in an attempt to ground the discussion over the true meaning of the Ninth Amendment in a righteous historical tradition. Theories abound as to what exactly Madison had in mind, while the taxonomic tree of unenumerated rights grows with every additional reclassification.

Professor Calvin R. Massey, for example, describes the Framers of the Constitution as having considered two fundamentally different types of rights: the "natural" and the "positive." The natural rights are those omnipresent rights that exist before the establishment of government, such as the right to free speech, while positive rights are civil rights that are only relevant within the framework of a government, such as the right to a trial by jury. Madison recognized the distinction, Massey holds, and intended both rights to be covered equally by what was originally a clause in Madison's draft of the Constitution itself, but what was then delayed and included in the Bill of Rights as the Ninth Amendment (118). A binary classification as that offered by Massey, however, opens the door to a wide range of arguments that shuffle these unenumerated rights across newly drawn lines.

What were simple "rights" are now "natural" and "positive" rights. The last word of the amendment, "people," furthermore, may not literally mean "people." The distinction between the "people" and the "states" was not well defined in the Constitutional jargon of the time. Insofar as they were both contrasted to the federal government and protected against its potential tyranny, they were the same entity. Yet, if the two were interchangeable, the Ninth Amendment could have been rewritten, without change of meaning: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the States." When juxtaposed with the Tenth Amendment, an unsettling redundancy takes form: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It is unlikely that the Framers would have written two consecutive amendments with precisely the same meaning, an unlikelihood that motivates a closer look at the distinction between "people" and "states."

Norman Redlich denies that the Tenth Amendment is a mere "truism," suggesting that the inclusion of the phrase "or to the people" in the Tenth Amendment can only be understood in the context of the Ninth. The Ninth Amendment, removing from federal control those unenumerated rights, must then be followed by its natural successor, the Tenth, which, Redlich seems to imply, places some of these rights in the hands of the states and others in the hands of the people. The latter rights in the hands of the people are protected against the states and the federal government alike (141). Redlich, however, is unclear as to where the distinction lies between those rights retained exclusively by the people and those powers reserved to the states. His analysis confounds the debate as to the original intention of the Framers and, more importantly, epitomizes the interminable struggle of deriving the original meaning of the Ninth Amendment. Jurist John R. Hamilton, for example, cites at least four different interpretations of the applicability of the Ninth Amendment to states alone: applicability by analogy, applicability through the Fourteenth Amendment, applicability through general rights protection, and applicability through original intention (307-9). Either one would be sufficient to consider the Ninth Amendment as limiting the powers of the states in addition to those of the federal government, which inevitably ties any discussion of protecting people against states to not one, but four, different considerations, confounding the debate even further.

Patterson, in his apology for individual rights, laments the "erroneous classification of [the Ninth Amendment]…as a limitation upon the powers of the Federal Government, and not upon the states" (23). His confidence in the meaning of the Ninth Amendment, however, contrasts a statement made by Madison himself in The Federalist No. 40 (18 January 1788), where he declares, specifically, that "in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction." Similarly, in The Federalist No. 45, Madison holds that "[t]he powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people […]." It is difficult to tell whether Madison had changed his mind regarding the states' scope of unenumerated rights or whether he had viewed states and people as synonymous. On 8 June 1789, in his presentation of his proposed amendments to the House, he said, "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" (Annals 111). He had left out any reference to the states. Unenumerated rights that in The Federalist Nos. 40 and 45 seemed to belong to the states were now in the hands of the people, if the states and people were indeed different at all. In fact, Madison's own confusion is even apparent in some of his letters to Thomas Jefferson (Ely 180-1).

If it is difficult enough to infer the intentions of a single Framer, it is proportionately more difficult to infer the intentions of the dozens of other prominent statesmen who contributed to our Constitution. Professor Massey questions the very relevance of such intentions (21). Even if, say, the Framers' were present today, should their word be taken against the cumulative law and experience of a nation of more than two hundred years? The answer is most certainly "no," which calls to question the merits of our dogged search for the Framers' intention as the Holy Grail of Constitutional law. The application of the Ninth Amendment throughout history tells a story so convoluted that no assurance whatsoever of our Framers' intentions will resolve the debate.


III. SUBSTANTIVE DUE PROCESS: AN INSUBSTANTIAL CASE

A significant portion of the debate as to how the Ninth Amendment should be applied revolves around two competing theories of the rights-versus-powers dichotomy. Professor Randy Barnett acknowledges the difference between the "Rights-Powers Conception" and the "Powers-Constraints Conception." The former considers powers of the government on the same level as the rights of the people, holding that any power given to a government is necessarily that very right denied to the people, and any right retained by the people is a power detracted from the jurisdiction of the government. The set of powers and the set of rights are necessarily mutually exclusive, but their union forms the entirety of all rights-powers (Barnett 29). The "Powers-Constraint Conception," however, admits a more complicated consideration of political theory. In this view, the government is given certain powers to achieve certain ends, and the rights retained by the people limit the means by which the government can attain these ends. The Ninth Amendment is, in effect, a protection against, and the analogue of, the Constitution's Necessary and Proper Clause (Barnett 33-4; Garvey 930).

Based on this latter, less tangible conception, the Supreme Court has attempted to unify its philosophy on Ninth Amendment rights through a confused and irresponsible guideline called "substantive due process." Substantive due process, insofar as it can be defined, holds that the government simply cannot encroach onto certain natural rights, in contrast to the procedural due process of the Fifth Amendment where the government may encroach on certain positive rights but must follow the Constitutional guidelines ("Substantive Due Process"). The implications of this definition are broad, and its application in judicial cases has been erratic. The discretion left to the courts as to which rights are protected under this poorly defined concept of substantive due process has allowed sufficient slack for the judiciary to act as an independent legislator, and not as its proper role as the guardian of liberty against unconstitutional federal and state infringement.

Professor Mark C. Niles points out two important flaws in the Supreme Court's use of substantive due process: "its reliance on history and its lack of focus on the central conflict of personal autonomy disputes" (152). Although many cases where substantive due process has been applied have been decided in favor of personal rights, such an interpretation is "without sufficient textual foundation or justification," and is therefore unreliable (156-7). Christopher J. Schmidt in the University of Baltimore Law Review has called the substantive due process a "tall-tale" and a "legal lie," calling for an end to this perversion of the Ninth Amendment (232-3). Steven Shaw echoes Schmidt's frustration, citing the "unsatisfactory reasoning used by the Court to inform us what the ninth amendment does and does not mean" (95).

The Supreme Court's earlier interpretations of the Ninth Amendment prior to the Griswold case, though sparse and brief, allow more credit to the individual autonomy of citizens than do the recent judicial applications of the amendment. Justice Reed's opinion in Workers v. Mitchell (1947) saw the generally unrecognized amendment in a fresh light:

[W]hen objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.

Reed understood that the rights of the people were supreme in the realm where government did not have explicitly delegated powers, a clear instance of Barnett's Rights-Powers Conception. On the other hand, Dr. DeRosa laments the recent creative jurisprudence of the Supreme Court and indicates that, unlike other branches of government, the "Supreme Court's jurisdictional public policy lacks meaningful accountability to state popular control" (104). Though DeRosa would use this lack of accountability to argue against the Supreme Court's over-involvement in states' affairs and the perversion of federalism, it is just as easily applied against substantive due process and the erratic protection of unenumerated rights. In fact, DeRosa's double standard for state and federal governments flies in the very face of federalism, which was intended to protect popular rights at a time when states were the apologists of liberty. In our contemporary America, we are not assured protection by either states or the federal government; that is to say, DeRosa's "state popular control" is a myth, for the states are no longer the champions of liberty as they used to be (Caplan 265), and our only recourse is now the Supreme Court. Because of its separation from popular, legislative, and executive control, the Supreme Court has an added responsibility to consistently protect the rights of the people against any government that threatens them. Another debate surrounds whether the Ninth Amendment implies an additional federal government obligation to protect rights (Caplan 260) or whether it denies federal involvement in these rights entirely (Berger 23-4). But regardless, the Supreme Court is responsible for ensuring that Constitutional rights, explicitly named or unnamed, are not disparaged (U.S. Constitution, Article III, Section II). An examination of the sexual rights and drug criminalization case studies, however, reveals that the Supreme Court, for granting only fickle protection, has failed to uphold the rights of the people.


IV. CASE STUDY: SEXUAL RIGHTS

Griswold v. Connecticut marks the first notable application of the Ninth Amendment to a Supreme Court decision. The Court ruled that a Connecticut law forbidding the sale, use, or recommendation of contraceptive devices was unconstitutional. In his concurring opinion, Justice Goldberg expounded on the Ninth Amendment:

The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.…The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. 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.

Goldberg had correctly recognized the fundamental right to privacy as an unenumerated Ninth Amendment right. He had, moreover, recognized that any ruling in favor of the state of Connecticut would be a clear violation of the Constitution. He had set the stage for the revival of personal freedom. In another case regarding contraception, Eisenstadt v. Baird (1972), the Court ruled again in favor of liberty, extending the right to use contraception to unmarried couples by annulling a Massachusetts law.

DeRosa, an opponent of this interpretation, calls Goldberg "incorrect in assuming that the U.S. Supreme Court is…authorized by the Ninth Amendment to fill in the blanks [of unenumerated rights]" (101). Raoul Berger of Harvard Law School finds Goldberg's leap from "the 'existence of powers'…to a federal power to protect them" unfounded (10). Neither criticism holds, for it is in fact the Supreme Court's role, as outlined in Article III of the Constitution and as confirmed in Marbury v. Madison (1803), to ensure the Constitutionality of statutes. In these two cases regarding contraception, the Court performed its proper, Constitutionally sanctioned role. In Bowers v. Hardwick (1986), it did not.

Hardwick, a Georgia man arrested on charges of homosexual sodomy, challenged the Georgia law that he had been violating. The United States Eleventh Circuit Court of Appeals ruled in favor of Hardwick, holding that the state law was unconstitutional because it violated his fundamental rights. Georgia Attorney General Bowers appealed to the Supreme Court. Justice White delivered the majority opinion that the "Constitution does not confer a fundamental right upon homosexuals to engage in sodomy." Seemingly unaware of the implications of Griswold, he continues, "None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case," citing a history of the criminalization of sodomy. That White did not consider Hardwick a case of right to privacy demonstrates that the substantive due process is just as arbitrary and unreliable as the whim of the Court's majority, often motivated by archaic and tyrannical precedent. Justice Blackmun dissented, identifying the active right in this case not to be the right to engage in sodomy, but rather the "right to be let alone." Seventeen years later, the Court reversed its opinion in Lawrence v. Texas, wherein a Texan man was convicted on a state law prohibiting sodomy. Justice Kennedy wrote in his majority opinion, "Bowers was not correct when it was decided, [and] is not correct today […]." Though the decision was overruled in Lawrence, given the Court's history, there is no guarantee, nor is there any reason to believe, that the Court will rule in favor of Ninth Amendment rights in similar cases in the future.

Where abortion is concerned, the Supreme Court has upheld the Griswold Ninth Amendment right to privacy, as evident in the milestone Roe v. Wade decision and in the lesser known Doe v. Bolton, which held unconstitutional a Georgia law that complicated the abortion process and denied, de facto, abortions to poorer women.

In cases of obscenity, the Supreme Court has been less consistent. The decision in Stanley v. Georgia upheld the right to possess and watch so-called "obscene" materials in the privacy of one's home, overturning yet another Georgia statute. The case was argued on First, Fourth, and Fourteenth Amendment rights without a need to tap into the wealth of unenumerated rights retained by the Ninth. In a similar subsequent case (Miller v. California, 1973), however, where the First Amendment right to free speech failed, no mention of the Ninth was made. Miller was in violation of a California law prohibiting the distribution of obscene materials. The Court ruled in favor of the state law and, furthermore, established arbitrary moral-based guidelines to define obscene material. The infamous "Miller test" deems any material obscene when it meets these criteria:

(a) [W]hether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest…(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Notably, the opinion states that "[o]bscene material is not protected by the First Amendment." In cases where a right is not protected by the First Amendment, a dubious claim in Miller per se, the Court must resort to the Ninth Amendment. That the Court did not in the case of Miller v. California evidences a lack of concern for the amendment and, by extension, the Constitution, showing instead a dedication to its own political and moral agenda.

Despite the Court's frequent oversight of the Ninth Amendment in sexual rights cases, it has at least acknowledged the existence of unenumerated rights from time to time. A similar pattern of inconsistent enforcement exists at the state and federal district levels as well; instances of denied Ninth Amendment rights include Mindel v. U.S. Civil Service Commission, Baker v. Nelson, Dawson v. Vance, Dronenberg v. Zech, and Doe v. Commonwealth's Attorney for Richmond (Shaw 107-8, footnote 67). Sexual rights aside, however, an even more disappointing history of Ninth Amendment oversight is told by the United States' federal policy of drug prohibition.


V. CASE STUDY: DRUG PROHIBITION WITH AN EMPHASIS ON MARIJUANA

The United States has long been in the middle of an expensive and oppressive civil war. In what is euphemistically referred to as the "War on Drugs," the federal government has tried to eradicate drug use. Not only has it failed, but it has created an abundance of other economic, social, and political problems, among them the violation of civil liberties. Judge Gray summarizes a history of criminalization well: "Nothing in the history of the United States of America has eroded the protections of our Bill of Rights nearly as much as our government's War on Drugs" (95). Here we deal only with the Constitutional issue of Ninth Amendment rights as it relates to the drug war, and though the Ninth Amendment can equally be applied to all forms of drug prohibition, a discussion of the criminalization of opiates, cocaine, and other "hard" drugs will afford little insight into Ninth Amendment violations. Though Executive Director of the Drug Policy Alliance Ethan A. Nadelmann observes that "Congress keeps forgetting that there is no 'drug exception' to the Constitution" (qtd. in "ACLU and Drug Policy Groups Sue"), the greatest focus of judicial cases on drugs regards marijuana. It is these cases that will yield the most fruitful discussion of judiciary Ninth Amendment oversight.

A notable instance of the Supreme Court overlooking the Ninth Amendment right to privacy established in Griswold concerns the decision in Oliver v. United States (1984). Kentucky State Police, working on a tip that Oliver was growing marijuana, proceeded through a locked gate and violated a "No Trespassing" sign to uncover a field of cannabis plants. The Court, however, rejected Oliver's request to have the evidence suppressed on the grounds that the police officers had no right to search his premises. Because the field was located within the "curtilage," defined by the Court to be "the land immediately surrounding and associated with the home," it was fair game for search without warrant. The Supreme Court did not recognize Oliver's right to privacy; specifically, his right to do with his property that which he desires insofar as he does not violate the rights of others. This was the primary stipulation in the Griswold case and should have been in Oliver's case. In a similar decision, the Supreme Court upheld an aerial search of a the defendant's marijuana field, further extending the boundaries of said "curtilage" to at least one thousand feet above the target (California v. Ciraolo, 1986). Again, the Court not only denied applicability of the Fourth Amendment search and seizure clause, but also completely ignored the Ninth Amendment right to privacy.

Aside from privacy issues, the Supreme Court has held that marijuana use, even for medicinal purposes, is impermissible. The Court's decision in U.S. v. Oakland Cannabis Buyers' Cooperative (2001) held that the Controlled Substances Act (CSA) of 1970, which maintains the illegality of marijuana and other drugs, applies even in cases of medical necessity. Furthermore, the Court denies the Cooperative's claim that the law "violates the substantive due process rights of patients, and offends the fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments." Not only does this decision reveal the fallacy and whimsicality of the substantive due process interpretation of the Ninth Amendment, but it also suggests Congressional supremacy over the Bill of Rights.

A similar attitude is reflected in lower courts. When the National Organization for the Reform of Marijuana Laws (NORML) filed for an injunction, claiming the unconstitutionality of the CSA, the U.S. District Court of D.C. rejected its claims. NORML v. Bell (1980) reveals an underlying belief of the courts that "the [Controlled Substances] Act [is] a reasonable congressional attempt to deal with a difficult social problem." Despite that fact that the CSA has arguably created more social problems than it has solved, such a declaration is not sufficient grounds to ignore Ninth Amendment rights. Though the Court may be justified in denying the immediate and full-fledged legalization of cannabis based on the Congressional powers to control interstate commerce, it has no Constitutional grounds to criminalize private possession. In fact, the Supreme Court has recently demonstrated that it will continue to overextend the commerce clause of Article I, Section 8, at the expense of the unenumerated rights of the Ninth Amendment.

In accordance with the California Compassionate Use Act, two severely ill patients, Raich and Monson, had been using marijuana to relieve pain. Despite county officials' insistence that these patients were acting entirely within California state law, agents from the national Drug Enforcement Agency (DEA) arrived at Monson's home, seized her six cannabis plants, and destroyed them. Raich had been receiving free cannabis from another supplier and did not have plants of her own. Raich and Monson filed for injunctive relief which was finally granted by the Ninth Circuit Court's reversal of the District Court's decision. Attorney General Ashcroft appealed and, after the turnover of the cabinet position, the case was pursued by Attorney General Gonzales. On 6 June 2005, in its shocking decision in Gonzales v. Raich (2005), the Supreme Court upheld the supremacy of the Congressional CSA over the California statute on the highly dubious grounds of the commerce clause. Justice Stevens delivering the opinion of the Court held that the medical availability of marijuana in California affected the national market for marijuana and is therefore considered a matter of interstate commerce and subject to the jurisdiction of Congress. Justice O'Connor, dissenting, correctly identified the potentially severe dangers of this decision:

Today the Court sanctions an application of the federal Controlled Substances Act…without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause--nestling questionable assertions of its authority into comprehensive regulatory schemes--rather than with precision.

Stevens's decision has rewritten Article I of the Constitution and entirely defaced the unenumerated rights of the Ninth Amendment. This tyrannical extension of federal jurisdiction eclipses the spirit of civil liberty and reveals the Supreme Court's lack of dedication to personal freedom. That this decision is so recent, furthermore, offers no consolation.

The fallacy of the Supreme Court's ruling in these cases underscores the Constitutional fallacy of drug prohibition: because the right to personal and private use of drugs is nowhere denied in the Constitution, it is retained by the people under the Ninth Amendment. Before the United States could impose a federal income tax and before it mistakenly endeavored to prohibit the sale and consumption of alcohol, Constitutional amendments were required to increase Congress's allotted power, which is derived, otherwise, solely from Article I. The criminalization of drugs is no exception.


VI. CONCLUSION: MORALITY V. THE LIBERTARIAN IDEAL

There is little doubt that the American people have seen their rights constantly defined and redefined by an ever-changing judiciary. In the doctrinal vacuum created by the government's oversight of ultimate civil liberty, the courts often resort to an oppressive and volatile concept of morality.

DeRosa criticizes the Supreme Court as a "conduit through which unenumerated rights can be channeled into constitutional law." He would have us believe that the states are better suited "to maintain state statutes considered to be in their citizens' best interests…promoting their health safety, morals, and general welfare" (99). Though this statement may generally hold, DeRosa is mistaken when he applies it Bowers. The Constitution was designed to protect the citizens of this country from a tyranny of the majority. Local concepts of morality are irrelevant when they conflict with civil liberties. We often forget that moral rules are given no credibility in the Constitution, but that the libertarian concept of unenumerated rights is explicitly mentioned. This Constitutional amnesia is too often responsible for government abuses. Justice Burger, concurring with the decision in Bowers, maintained that "[c]ondemnation of [homosexual sodomy] is firmly rooted in Judeao-Christian moral and ethical standards." Former drug czar William Bennett, likewise, justifies criminalization of drugs in claiming that "the moral argument, in the end, is the most compelling argument" (qtd. in Earleywine 227). These statements are acceptable from clerics, but government of the people derives its legitimacy from a source far greater than morality: It is subordinate to the natural and unalienable rights of man.

We must keep in mind that it is impossible for a positive application of the Ninth Amendment to take away the natural rights of even a single person; we must embrace the concept of unenumerated rights. The Ninth Amendment echoes John Stuart Mill's libertarian ideal that any man may undertake an action insofar as he does not compromise the civil liberties of others (Garvey 937). No argument founded on Constitutional grounds can refute the validity of this philosophy.

Nevertheless, the Supreme Court's history of substantive due process demonstrates an unpredictable and arbitrary protection of civil liberties. Rights that are recognized only erratically are not rights all, but are instead a brief repose from the government's omnipresent tyranny. Only when the Supreme Court asserts the supremacy of civil liberties will federal and state governments humble before their constituencies. However democratic this nation professes to be, it is inevitable that in a country so large the lawmaking body will be significantly removed from the populace. Thus, it is left to the courts to serve as the loyal guardians of the liberties which are, and of right ought to be, retained by the people.


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