People who (like me and, I suppose, most readers of The Catholic Thing) object to the Roe v. Wade ruling made by the U.S. Supreme Court in 1973 – the ruling that declared that the U.S. Constitution contains a right to abortion – often point out that despite reading the Constitution very carefully, often with a magnifying glass, we can find no mention in it of a right to abortion.
We find rights to freedom of speech and freedom of press and freedom of religion; we find a right to bear arms; we find a right to trial by jury; we find a right to vote; we find a right not to be a slave; we find a right to purchase alcoholic beverages; and so on. But we find no right to abortion.
Therefore, we conclude that there is no such Constitutional right. We conclude that the Court invented this “right.” The Court, by a 7-2 margin, made it up. It didn’t make it up exactly out of thin air. No, it made it up out of the very thick air of sexual revolution that was characteristic of the cultural atmosphere of the sixties and seventies.
The younger generation had discovered sexual freedom, which to be complete required freedom of abortion; and so seven of the nine old men of the Court (no women in those days) decided to show that they too, despite their advanced corporeal age, were young in spirit.
We conclude also that once the Court decided it has the authority to make up a right to abortion, thereby amending the Constitution in a manner that bypasses the amendment process spelled out in the Constitution itself (Article V), it could make further illicit amendments by “finding” other nonexistent rights. For instance, it could find a right to homosexual practice (Lawrence v. Texas, 2003; a 6-3 ruling). And it could find a right to same-sex marriage (Obergefell v. Hodges, 2015; a 5-4 ruling).
Unless the Court changes its ways (which it might if it has a stable conservative or “originalist” majority), we expect that in the not-too-distant future it will “find” in the Constitution a “right” to polygamy, a right to be euthanized, and a right to be transgender.
Those on the other side, the liberal side, however, who deplore our literal and narrow-minded reading of the Constitution, those who hold that we have a “living” Constitution – enthusiasts for abortion and homosexuality and transgenderism and euthanasia – can argue that un-Constitutional “rights” we object to actually are alluded to in the Constitution.
Where? In the Ninth Amendment, which says: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Without question, this sentence implies that there are at least a few other rights, perhaps many, besides those enumerated.
So there you have it. All human rights (or “fundamental human rights” as we are now in the habit of calling them) are protected by the Ninth Amendment. If abortion or same-sex “marriage,” or euthanasia is a human right, then these rights are implicitly contained in the U.S. Constitution.
Now, I agree that all human rights are protected by the Ninth Amendment. For example, if there is a fundamental human right to ride a horse down Main Street while totally naked, then this right (let us call it the Lady Godiva rrght) is protected by the Ninth Amendment.
But who decides what is, and what is not, a fundamental human right? Judicial liberals seem to believe that this decision should be made by the Supreme Court – or more exactly by five or more members of the Court.
In 2015 the Court decided by a 5-4 margin that same-sex marriage is a fundamental human right. This seems awfully odd. I would have supposed that X would count as a fundamental human right only if mankind generally had so decided, or at least the American portion of mankind. And it would not be enough for all Americans to decide that X is a fundamental right by a narrow margin; an overwhelming margin would be required.
And not merely an overwhelming margin on this or that particular day or year, but an overwhelming margin for a long, long time, perhaps for centuries. Or so it seems to me.
But judicial liberals tell me I’m wrong. They think a 5-4 Supreme Court majority is sufficient to establish X or Y or Z as a fundamental human right. And then they appeal to the principle of stare decisis to argue that, once X or Y or Z has been established as a fundamental human right, it can never be dis-established.
This gives liberals a great tool for enacting whatever may be their public policy agenda – not through legislatures but through courts. Would you like America to have a $100 per hour minimum wage? Well, if you can get a 5-4 majority of the Supreme Court to declare that workers have a fundamental human right to be paid $100 per hour, then everybody will have to be paid at least $100 per hour.
This is a far-fetched example, I admit. But there are many other potential examples that are not at all far-fetched. In fact they are waiting just around the corner. Like polygamy. Like euthanasia. Like transgenderism.
I’m an old man, and I’ve been living in the USA for a long, long time. I should feel at home here by now. But I feel on some days that I’m a stranger in a strange land. On those days, I find it hard to believe that a majority, probably a large majority, of my compatriots seem to agree that fundamental human rights can be discovered by a 5 to 4 vote of a panel of judges – something that seems to me to be an utter absurdity.
Ah well. This is perhaps one more bit of evidence that I have lived past my expiration date. Take me off the shelf.
*Image: Justices of the Supreme Court (1972). Front row: Potter Stewart, William O. Douglas, (Chief Justice) Warren E. Burger, William J. Brennan Jr. and Byron R. White. Back row: Lewis F. Powell Jr., Thurgood Marshall, Harry A. Blackmun, and William H. Rehnquist. [Getty Archive]