The Ninth Amendment v Substantive Due Process and rights.

 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