If The Right Opposes The Right To Privacy... Let THEM Repeal The 9th Amendment

In the last article I stated my belief that Democrats have a narrow view of constitutional rights which at best is marginally less restrictive than that of the radical Right. While both major parties at least seem to agree the Constitution protects enumerated rights... though not always what they mean... the Dems go a bit further in looking to recent court rulings that found some constitutional basis for unenumerated or penumbral rights such as the right to privacy and the right to choose.

Sadly the Democrat's dedication to these rights is not a matter of principle, but seems to be in direct proportion to how vocal constituency groups are in the Democratic coalition. If the Democrats DID support the concept of non-enumerated rights they would insist government must try all LEAST restrictive means first in dealing with legitimate social problems. For instance they'd bring to the war against drugs the same common sense standards used in fighting social problems associated with alcohol: laws would target real social problems while protecting the rights of responsible users.

In a recent web discussion about strategies to protect unenumerated constitutional rights such as privacy and the right to choose, someone suggested the Democrats should advocate amendments to guarantee these rights.

I could not disagree more.

Even if some amendments were ratified, there will be an endless list of other rights the radical Right would love to restrict. Even the concept of one person/one vote is under attack! As if the current Democratic strategy isn't already on shaky ground, this amendment proposal perpetuates that defensive posture and dooms the Democrats to endlessly pursue amendment after amendment. If they don't... and if Griswold or Roe are overturned... what's the fallback position to guarantee these rights on the FEDERAL level? There is none. The issues will revert to the states resulting in a patchwork of conflicting laws.

Democrats are making a strategic blunder of monumental proportions by basing their arguments on stare decisis... previous court rulings. They need to aggressively reframe the debate and this requires going on the offense to find in the Constitution a broader source of rights as the REAL legal basis for the right to privacy and the right to choose.

I believe the Democrats and their political allies like MoveOn should dust off that long-ignored, but all important, ninth amendment which says:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Rightly the 9th is the REAL basis for such basic but unenumerated rights as privacy and the right to choose. This should NOT be that difficult a case to make given what James Madison wrote about the intent of this amendment. I posted his thoughts in the previous blog article.

Yes these unenumerated rights are largely in the minds of the beholder which may be why the Democrats historically have avoided the 9th. But given how our system delegates powers from the People to the states and federal governments... and how the 9th guarantees rights are retained by the People... then it's clear Original Intent placed the burden of proof on GOVERNMENT to find a legal justification to restrict rights... not for the PEOPLE to constantly fight for rights that government never should have been restricted in the first place.

In politics conceiving a good offense is just the start. The Right MUST be effectively put on the defensive. My suggestion... by insisting the right to privacy or to the right to chose are already protected not by court rulings but by the Bill of Rights itself, Democrats should stake out a position and coordinate talking points that if the Right opposes these unenumerated rights, their ONLY constitutional option is to repeal the 9th amendment.


ulTRAX