Some Things to Think About the IX Amendment of the United States Constitution

I happened to re-read some of Justice Scalia’s opinions tonight and in his Evans dissent, Scalia stated:

Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means …

I think that this sort of belief is dangerous, illogical and foolish, especially in light of the IX Amendment to the United States Constitution, which is part of the Bill of Rights, which founding father Madison demanded so people wouldn’t foolishly declare long after the revolution had ended that “if it isn’t in the constitution, it isn’t a constitutional right.”  For those who need a civics lesson update, it states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. – Article IX of the United States Constitution

It clearly states that we have constitutional rights that aren’t listed in the constitution.  For example:

  • If the majority passed a law requiring every United States citizen to be tagged with a microchip that contains proof of citizenship, I would argue that this is a violation of privacy and is unconstitutional because it is an invasion of individual liberty not justified by any state rational.  There is nothing about microchips in the constitution so using Scalia’s test, the majority could just force everyone to go alone, right?  I don’t think so.
  • If the majority passed a law forbidding private schools and home schools, requiring all students to learn in public schools, I would passionately believe that is unconstitutional because it would violate the right of parents to determine how their children are raised.  There is nothing about private schools or homeschooling in the constitution.
  • If the majority passed a law stating that all single mothers had to be sterilized, I would say that is unconstitutional because the right to procreate flows from God and nature herself, not from the government.  Yet, there is nothing about the right to procreate in the constitution.
  • If the majority passed a law banning oral sex among married couples (which is literally sodomy), I would argue that even though the constitution says nothing about sexual relations, the government has no role or power to be in the privacy of the bedroom of two consenting adults.
  • If the majority passed a law setting a dress code for every citizen requiring them to wear only black slacks and t-shirts, the constitution says nothing about clothing yet I would say this violates the spirit of free speech (even though not a word is being spoken).

It is time people stop believing that this is a democratic nation that gets to decide everything by a majority vote.  I wrote about this in The Cult of the Majority (or You Don’t Have a Right to Vote for the President of the United States).