I suppose people have believed from time immemorial that there are certain non-man-made rights of some kind.
In the old days – e.g., when Thomas Jefferson was a young man – these rights were commonly called “God-given rights” or “natural rights.” Mr. Jefferson himself seems to have given both names to these rights.
More recently, we have been taught to call them simply “human rights” or, better still, “fundamental human rights.” Pace Jefferson, these names make sense today. We are living in a highly secularized age. Many of our contemporaries – who are no doubt more “on the right side of history,” at least in their own minds – have given up on the idea of a lawmaking God and the idea that Nature (God-made Nature) can dictate moral norms.
Despite their advanced thinking, however, these people are not yet so advanced as to have entirely given up on the idea that our social and legal relations with one another should be guided by certain innate rights and their corresponding duties.
Practically speaking, it makes little difference whether we call them “God-given rights” or “natural rights” or “human rights” or “fundamental human rights.” These are four names for the same thing. On that, all of us – left or right or center, liberal or conservative or moderate, Democrat or Republican or independent, Christians or non-Christians or even anti-Christians—can agree. We all acknowledge the existence of such rights.
The Ninth Amendment to the Constitution, written in the pre-railroad days of Jefferson and his friends, acknowledges the existence of these rights, and it clearly implies that legislatures and courts should recognize them even though they are nowhere mentioned (or “enumerated”) in the Constitution.
In the last half-century or so, legal theorists have developed the idea of “substantive due process,” according to which the “due process” guaranteed by the Constitution is violated whenever (a) a legislature – federal, state, or local – enacts a law that trespasses on one of these fundamental human rights or (b) a court of law issues a judgment that trespasses on one of these rights.
The difficulty comes when we try to decide which rights should be included on a list of “fundamental human rights” – those precious rights recognized but not named or enumerated in the Ninth Amendment.
Persons of a more liberal point of view (including some “progressive” Catholics) tend to hold that among these fundamental rights include abortion, sodomy, and same-sex marriage. And if you press them, I think they’ll say that there is a right to suicide, polygamy, and altering your gender.
By contrast, persons of a more conservative point of view (including orthodox Catholics) tend to hold that the rights (or “rights”) just mentioned are far from being fundamental human rights, and therefore they cannot be found, even implicitly, in the Constitution.
For many decades justices with a more liberal point of view dominated the Supreme Court; hence the Roe and Casey rulings on abortion, Lawrence on sodomy, and Obergefell on same-sex marriage. But in recent years, thanks largely to President Donald Trump, the Court now has a more conservative majority; and just the other day this new majority, believing that abortion is not a fundamental human right, ruled that the right to abortion is not, and never was, a constitutional right.
Justice Clarence Thomas, who incidentally – or perhaps not-so-incidentally – is a Catholic, went further than the other conservatives on the Court. Not only is abortion not a fundamental human right implicitly recognized by the Ninth Amendment, he said, neither is a right to sodomy or a right to same-sex marriage or even (going all the way back to the Griswold ruling of 1964) a right to contraception.
Thomas reasoned that if the authors of the Constitution and its Amendments had meant to include these so-called rights, they could have said so in so many words.
Despite what many of his critics have been alleging in recent days, Justice Thomas did not call for laws banning birth control or sodomy, same-sex marriage, or even abortion. No, he merely said that these “rights” – like the right to abortion – are not included in the Constitution.
Persons of a more liberal disposition have violently attacked Thomas, even going so far as to call him a “house n*****.” They continue to hold that the rights recognized by Griswold, Roe, Lawrence, and Obergefell are fundamental – and therefore protected by the Constitution, correctly read.
But how do we decide whether X truly is a fundamental human right?
The liberal answer seems to be that X is a fundamental right if five or more Supreme Court justices of liberal persuasion say it is.
A more conservative answer is that X is a fundamental right if it is “deeply rooted” in U.S. history and legal tradition.
If we had the power to call up the spirits of certain famous dead moralists – e.g., Moses, King David, Confucius, Buddha, Socrates, Plato, Aristotle, Cicero, Epictetus, Augustine, Aquinas, Montaigne, Shakespeare, Locke, Franklin, Jefferson, Kant, Mill, and Orwell – we could make them serve as a Court of Human Rights, and if they agreed unanimously or almost unanimously that X is a human right, then we could all be pretty sure that it is. And should be protected by the Ninth Amendment.
Failing that, we have to assume that we human beings are in possession of a faculty of moral knowledge – call it conscience or moral sense or something else – and that, given enough time (many centuries), this faculty will discover many fundamental human rights and duties, and will rest content in these discoveries. This requires, of course, a great and very serious study of the history of moral beliefs and practices.
At the moment, we don’t seem ready for such an undertaking.
In the meantime, for whatever it is worth, I think the preponderance of evidence suggests that Justice Thomas is right that the Constitution does not protect abortion – or sodomy, same-sex marriage, or even contraception.
And there’s also evidence that Clarence Thomas is a great man.
*Image: The Voyage of Life: Youth by Thomas Cole, 1842 [National Gallery of Art, Washington, DC]
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Hadley Arkes’ Joe Biden’s Adventures in the Natural Law
Brad Miner’s Patriotism and the Fourth Commandment