Unenumerated Rights

[migrendel]

A18 is correct to state that this is a rule of construction. However, he doesn't seem to consider how it can only be applied, because the construction necessarily results in the acknowledgment of certain rights. To begin, the text must be examined carefully. When it is forbidden to read the Constitution in such a way as to abridge extra-Constitutional rights retained by the people, it is only reasonable to perceive these freedoms as being on a Constitutional plane. How else could be they be viewed as pre-empting the interpretation of the supreme law of the land? For that reason, the judiciary must recognize their existence and their central nature. Fortunately or unfortunately, this is the extent of the help that the Constitution provides.

In order to protect these additional rights, we must look outside of the Constitution. This is an open construction, and admittedly a highly subjective one. I regret to say this, but it is an excellent example of legal indeterminacy. Essentially, the only way to decide what rights are protected by this amendment is by justifying their protection within the concept of a system of constitutional liberties.

The focus of the litigation surrounding this amendment is doubtless questions of abortion, homosexual sodomy, etc. Of course, I believe that these things are so basically private, so beyond the reaches of any authority, that their legal protection is assured as fundamental. In light of this, though, I would suggest that it is perfectly legitimate not to view sodomy as constitutionally protected, just as long as no one is given more of a right to it than anyone else. Abortion is complicated by larger equal protection issues, but I imagine if a judge could dispose of those to his satisfaction, he could find it unprotected within some theory of unenumerated rights.

However, we must be aware of some erroneous perceptions. Some liberals find it fitting to view this amendment as reflecting the community's evolving standards of decency. This is dangerous, and far more democratic than our Constitution is or should ever be. Inevitably, the amendment is a perdurable feature of the document,  and is perhaps best described as the philosophical battleground of legal rights.