My Goodreads friend Alan Johnson, author of several very interesting books has been writing lately on the use of the Ninth Amendment as a better way to protect unenumerate rights, which, after all, is what the ninth is all about.
I quote from a passage he posted to Goodreads that I find particularly enlightening and look forward to a book I hope he writes.
During the last couple of days, I have been studying the Dobbs decision and planning an essay on it with the working title “Originalism Gone Wild: A Critical Analysis of Dobbs v. Jackson Women’s Health Organization
(U.S. 2022).” The joint dissenting opinion of Justices Breyer,
Sotomayor, and Kagan is one of the most brilliant and beautiful judicial
opinions I have ever read. (I was a practicing lawyer for more than
three decades, focusing especially on constitutional and public law
litigation.) This dissenting opinion eviscerates originalism and offers a
clear and compelling alternative mode of constitutional analysis. As
did I in The Electoral College, 137–39, they rely, in part, on Chief Justice John Marshall’s analysis in McColloch v. Maryland,
17 U.S. 316 (1819). I will elaborate on such matters in my forthcoming
paper, which I will post on academia.edu and link in the present
Goodreads topic.
Dobbs and most of U.S. constitutional
jurisprudence have studiously avoided the Ninth Amendment. I find it
interesting that your proposed constitutional amendments replace
the language of the Ninth Amendment with new substantive constitutional
provisions. It is an interesting question whether it is advisable to
delete the original language of the Ninth Amendment. In law school
(1977), I wrote an 81-page paper titled “The Ninth Amendment as a
Constitutional Reference of Individual Rights.” I will never publish
that paper, because I now disagree with some of its positions and
applications. However, the historical background of the Ninth Amendment
is very interesting. In particular, it is highly questionable whether
the Supreme Court’s substantive due process theory, based on the liberty
component of the Fourteenth Amendment (or the liberty component of the
Fifth Amendment Due Process Clause in cases involving federal
legislation or executive action) is sound. And it is substantive due
process—which Justice Scalia once called (not without reason) an
“oxymoron”—that the Dobbs majority, especially Justice Thomas,
wishes to cast into oblivion, together with constitutional protections
regarding privacy, contraception, and same-sex marriage. A much sounder
analysis, in my view, is to base these constitutional rights on the
Ninth Amendment, as Madison and other of the Framers arguably intended.
Your proposed constitutional amendments attempt to codify such
substantive rights (clearly in order to avoid any future textual or
originalist attack on them). That is all to the good. But the problem,
as Madison recognized, is to avoid the legal maxim of expressio unius est exclusio alterius
(“the expression of one is the exclusion of others”)—the principle of
construction that, for many centuries, has been applied to statutory and
contractual interpretation by British and U.S. courts. This is exactly
the reason why Madison proposed the language that became the Ninth
Amendment. I will develop these ideas further in my forthcoming paper as
well as in the third book, Reason and Human Government, of my
philosophical trilogy on free will, ethics, and political philosophy.
The paper will be completed sometime in the next week or two. The book
will require at least another year or two to prepare; it will cover many
other things in addition to constitutional interpretation.
Alan E. Johnson, author of The Electoral College: Failures of Original Intent and Proposed Constitutional and Statutory Changes for Direct Popular Vote, 2nd Edition, The First American Founder: Roger Williams and Freedom of Conscience, and Reason and Human Ethics
