Most scholars agree the civil rights identified in the Constitution are based on a philosophy of “Natural Law,” which means we all have freedoms endowed by God or nature. These liberties exist without having to be written. They are universal and true and belong to all of us.
The inspirational beginning lines of the Declaration of Independence are an expression of “Natural Law.”
“We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.”
As we celebrate Independence Day, we should recognize the importance and difficulty in protecting the rights specifically described in the Constitution, like freedom of the press, speech, religion, right to counsel, speedy trial and many more. We should also recognize rarely acknowledged Article Nine of the Bill of Rights. It states:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The rights retained by the people in Article Nine of the Constitution invariably depend upon many factors, including the voice and desire of the people and those whose responsibility it is to uphold and protect the Constitution. Justices of the Supreme Court clearly have a role to play in this process. Surprisingly, there have been very few decisions by our Supreme Court concerning the Ninth Amendment.
In the case of Griswold v. Connecticut, the Supreme Court ruled a right of privacy in marriage which legalized birth control. It relied heavily on an individual’s right to privacy, a right not explicitly stated in the Constitution. In Roe v. Wade, the landmark decision on the issue of abortion, one Supreme Court justice suggested a broad range of “natural rights” we might have, such as: “control over development and expression of one’s intellect, interest, tastes, and personality,” “freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children,” “freedom to care for one’s health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.” Although these rights were discussed by one of the justices, none have actually been confirmed, and others may exist.
The justices who make decisions concerning our rights and freedoms have no easy task, and, if the past is any example, every decision made will be criticized. Some justices may be labeled “activist” as a result of their decisions. An “activist” generally refers to a judge whose decision is suspected of being based on considerations other than existing law. Some may be labeled an “originalist.” An “originalist” believes the intent of the Constitution does not evolve over time. The intent is inferred by what was meant by those who drafted the Constitution or by speculating what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be.
In reality, all judges and justices look to the language of the Constitution or laws and try to determine their intent. All perform an analysis of what rights exist and try to apply the law to the facts and circumstances present in each case. The difference in outcomes is largely based upon these determinations, and on how one may wish to rationalize or justify a decision. “Originalists” are “activists” and “activists” are “originalists,” here are just a few of the many examples where this was true:
⋄ Citizens United v. Federal Election Commission: laws concerning corporate political spending and transparency were unconstitutional restrictions on a corporation’s free speech;
⋄ Bush v. Gore: the recount of ballots was halted by the Supreme Court and as a result George W. Bush was elected president;
⋄ Obergefell v. Hodges: same-sex marriage is constitutional;
⋄ Brown v. Board of Education: segregation of public schools is unconstitutional.
These cases are instances where a majority of justices were either identifying “Natural Rights” or simply interpreting the Constitution and laws based on their perception of intent. In some situations they were protecting the rights of the minority from the power of the majority. Our democracy and judicial process includes a system of “checks & balances” that attempts to limit the power of government and protect all regardless of position or influence.
The truth of the matter is the Constitution accommodates these interpretations. The Constitution is designed to protect us all and guarantee rights we’ve always had but haven’t always been enumerated. Let’s join together in celebrating the Constitution and our Independence!
Judge Frank Sedillo presides over the civil division of the Bernalillo County Metropolitan Court.