Generally speaking, those Americans who have strong objections to the U.S. Supreme Court’s landmark rulings Roe v. Wade (1973) and Obergefell v. Hodges (2015) fall into two categories. Either they are rather old-fashioned Christians (Catholics or Evangelical Protestants), or they are strict Constitutional constructionists – with a significant overlap between the categories.
The Roe decision declared that there is a Constitutional right to abortion, and the Obergefell ruling declared that there is a Constitutional right to same-sex marriage.
Old-fashioned Christians object to these rulings for two reasons. (A) They give not just a legal but a moral sanction to two practices that Christianity has always looked on with horror. (B) By implication, the rulings declare that Christianity is hostile to at least two fundamental human rights; and what is this but a declaration that Christianity is a false religion?
Strict constructionists object to these rulings because, they contend, these rulings are tantamount to un-Constitutional amendments of the Constitution. For the Constitution doesn’t have a single word to say about abortion or same-sex marriage. Read the Constitution a hundred times, and read it with a microscope if you like, but you won’t find a sentence or a word about abortion or homosexual marriage.
The Constitution provides, in Article Five, the manner for its being amended. And it is a deliberately cumbersome manner, requiring not just a super-majority but three super-majorities: (i) a two-thirds vote in the Senate, (ii) a two-thirds vote in the House of Representatives, and (iii) the vote of three-quarters of state legislatures. (Article Five also provides equally cumbersome ways for proposing and ratifying amendments, but these have never been used.)
It is clear that the generation of the Founders, those who drafted and then ratified the Constitution of 1787, wanted the document to be amended only on the basis of something approaching a national consensus, and only when the need for amendment has become obvious to almost everybody.
Accordingly, it is likewise clear (so argue the strict constructionists) that the Founders would have been horrified to think that the Supreme Court – or worse still, a simple majority of the Court – could bypass Article Five and amend the Constitution in an arbitrary manner.
Defenders of the two rulings (Roe and Obergefell) argue that they are not amendments of the Constitution. No, they are simply interpretations of the Constitution – and interpreting laws has been a fundamental duty of all courts ever since the first tribal chief sat under an oak tree or a palm tree and dispensed justice to his people. The defenders (who are usually believers in a “living” Constitution) tell us that it is a simple-minded mistake to imagine that the meaning of the Constitution, or for that matter the meaning of any law, can be understood by a simple reading of the text. It is like imagining that we can understand a difficult Scriptural text simply by reading it, at the same time ignoring all comments on the text that have been made by the Church, by the Fathers, by the Doctors, by scholars, etc. No, the interpreter of a law, and especially the Constitution, has to take into consideration precedents, analogies, implications, scholarly commentaries, etc.
What’s more (argue defenders of these rulings), the Ninth Amendment to the Constitution makes it very clear that, in addition to the rights enumerated in the Constitution, there are further rights, unenumerated rights. These are what the Founding Fathers would have called “natural rights” – or as we are more likely to say today, “fundamental human rights.” The Ninth Amendment doesn’t tell us what these unenumerated rights are. How could it? For if it told us, they would no longer be unenumerated.
Well, then, how are we to know what these fundamental human rights are? It must be that they are more or less obvious to reasonable adult persons. Or to put this in other words, these fundamental human rights must be akin to the self-evident truths spoken of in the Declaration of Independence.
And so, when the Supreme Court tells us that the right to abortion is a fundamental human right, and so is the right to same-sex marriage, it is telling us that these two rights are among the unenumerated rights referred to by the Ninth Amendment. It is further telling us that the strict constructionists are mistaken when they say the Constitution has nothing to say about abortion or same-sex marriage, for in the Ninth Amendment it speaks of these things in an implied way.
But if the rights to abortion and same-sex marriage are fundamental human rights, shouldn’t they be self-evident rights – like the rights of life, liberty, and pursuit of happiness? How can they be fundamental human rights if vast numbers of persons, including many intelligent and well-educated persons, deny that they are such?
How in fact did we in America decide that these are fundamental human rights? Did we hold national referendums on the questions? Did we even do a Gallup Poll to see if there was a national consensus on these questions? No, we allowed nine members of the Supreme Court to decide. More exactly, we allowed seven out of nine to decide in the case of abortion and five out of nine in the case of same-sex marriage. In the former case two out of nine were unable to discern a self-evident truth, and in the latter case four out of nine.
How self-evident can anything be if nearly half the U.S. Supreme Court is unable to see it?
Those who want to revolutionize this nation have been delighted to discover that the Ninth Amendment is a treasure trove of fundamental human rights. To carry out their revolution, they won’t have to go through the tedious process of persuading a great super-majority of the nation to agree with them. All they need is to get five members appointed to the Supreme Court who agree with them. Their infallible discernment of fundamental human rights will do the rest.
*Image: The Constitution by Barry Faulkner, 1936 [National Archives, Washington, D.C.]. Click on the title of the mural to identify each of the signers.