Monday, December 23, 2013

Civics and the Ninth Amendment

Once I was going through some museum in Washington D,C, and there was a little computer kiosk where people could answer quiz questions on the structure of the US government.  It was a little painful to watch as tourists playing with the machine sincerely were confused by basic issues like that Congress not the President, makes the laws in the US government.  I've been reminded of that painful embarrassment by recent events where people seem to think that free speech means the right to embarrass your employers with crazy talk without the employer having the right to let you go.  I remember being in an orientation at work where they specifically stated that if I got into trouble in any way that brought notoriety to the company I would be let go no matter what my guilt or innocence was.  It's that simple, I don't have the right to create a scandal and drag my employer into it as if they are stuck with me.

I've been reminded again of societies need for a better understanding of civics by recent arguments about the power of the judicial branch.  I've heard people seem to argue that courts don't have the right to overturn the will of the majority or that they don't have the right to recognize rights that aren't granted by the majority already.  Growing up, I heard a lot of these arguments.  They typically went something like this.  The courts recognize a right to sexual privacy, but privacy isn't mentioned in the Constitution.  So therefore the judges were just making it up as they went along as evil activists instead of being bound by the text of the Constitution.  Some arguments would even go as far as to suggest that the right to privacy was some kind of legal fiction created from the concept of the 4th amendment right against unreasonable search and seizure.  The basic concept here is that judges shouldn't be allowed to protect any human rights unless the legislature or the Constitution has already defined these rights somehow.

Somehow people just don't understand the Ninth amendment. 

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

 So basically the supreme law of the land states that there are undenied undefined human rights.  To enforce this section of the Constitution, judges have to be able to figure out how to apply a philosophical sense of right and wrong to define when people's rights are being infringed even if the right that is being wronged has never been defined before.  That's a high calling and a difficult one.  There have been very few cases where the ninth amendment was invoked as a result.  But the basic concept is worth pondering.  Not all human rights are defined.

Sometimes the rights protected by judges are partially defined, but get redefined from how they are written in law to make them conform to constitutional concepts like equal protection and due process.  That can be uncomfortable and frightening because yes at those moments the judges will be changing the law in a way that isn't based on the will of the majority.  But we don't live in a country where only the will of the majority matters.  People don't only have rights because someone else said so.  We live in a system where human rights are recognized, and some concepts of just law are supreme over the will of the majority.  While judges can surprise us with novel interpretations of right and wrong or constitutional vs unconstitutional, in general these changes have been for the betterment of society.  The decriminalization of birth control, integrated schools, and multiracial marriage only happened when they did because of judges willing to define rights and redefine the law in ways that hadn't been done before took a chance.  And that isn't something to be scared of.  We become more just when we give ourselves the chance to recognize human rights that are still undefined..

No comments: