“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The above is the text of the Ninth Amendment to the US Constitution. It is not my “distillation” or “summary” of the Ninth Amendment. It is the Ninth Amendment. You may recall that the first ten Amendments to the Constitution are known collectively as the “Bill of Rights.” To me, the Ninth Amendment could, in today’s terminology be titled, “Democracy for Dummies” Amendment. In the linked article in the Wikipedia, you can see that this ninth Amendment was added quite intentionally. In fact, some founders who argued against provisions of the Bill of Rights were worried that by enumerating some rights, such as the right to free speech, later generations might take it to mean that since those rights were enumerated, no other rights existed. So, just to make absolutely sure that no-one would make such a silly mistake, the founders added the Ninth Amendment. This says just about as clearly as it’s possible to say: “Look, just because we didn’t list a right should be not be used to argue that it doesn’t exist.”
Remember that the founders had just waged a war of independence against the tyranny of England. They had essentially bet their lives on winning a war against a much greater military power. They were quite serious about freedom! The passage is short and unambiguous.
The first thought that occurs to me when it comes to a Ninth Article in the “Bill of Obligations” is simply that each citizen should read the Ninth Article. Further, we should be vigilant that no politician, party, or demagogue tries to pooh-pooh it away or intentionally misinterpret it.
It honestly never occurred to me, as recently as a fortnight ago, that a Justice of the Supreme Court would be the one to pooh-pooh it as being meaningless, particularly a Justice who otherwise argues for a “strict reading” of the Constitution. But that’s where we are today.
Justice Alito is so hell-bent on destroying freedoms for Americans that he intentionally pretends he cannot comprehend this single, clear, short sentence in a foundational document for our country. Remember, Justices are sworn in. When they are sworn into office, they swear that they will uphold the Constitution of the United States. There is no “escape clause” in their oath. They do not say, “I swear to uphold the Constitution of the United States except for the parts I don’t like.” They do not say, “I swear to uphold the Constitution of the United States unless people who supported me to get on the court tell me to take a wrecking ball to it.”
Here is the text of the Oath of Office for Supreme Court Justices regarding the Constitution.
“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
What do you suppose “without any mental reservation or purpose of evasion” means? To me, it means just that. It’s not okay to take the oath of office with fingers crossed behind your back and think to yourself:
“Finally! The opportunity to foist off my ideas about how America should be run on an unsuspecting public. Screw the Bill of Rights! And totally screw all those Amendments and precedents since about having women vote and blacks being citizens and an implied right to privacy. Nope! What I want is an American Taliban. So, that’s what I’ll make happen!”
That’s not what taking the oath of office means.
There is another part of the oath of office for Supreme Court Justices:
“I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”
What do you suppose it means to swear that you will “administer justice without respect to persons and do equal right to the poor and to the rich”? Would you interpret that to mean that it’s okay to show preference to rich donors? Would you interpret that to mean that you’re going to use the power of your office to enhance white privilege or male privilege? Is it okay to mean that if you happen yourself to be a white male? Is it okay to subvert the oath of office if you happen to believe that things are just better if white males have more power? Is it okay to subvert your oath of office if you happen to believe that, actually, come to think of it, people of color and females really shouldn’t have any rights at all?
If a Justice of the Supreme Court decides to “strike down” part of the Bill of Rights because they don’t find it personally to their taste, what is the appropriate action? How about if they are sworn in while saying one thing but meaning something much different and more self-serving? How about if they lie under oath during their confirmation hearing? How about if they intentionally mislead under oath? Is that acceptable?
Let’s consider what constitutes a lie. Suppose we are playing tennis and you hit a ball that lands near the line on my side. I see it as in, but close. I call it out anyway. You ask, “Really? It’s your call, but it really looked in to me.” I answer, “Well, it was close all right, but I had a really clear look at it. I’d call that ball out every time.” That could be the literal truth. It was close. I did have a clear look. And, since I cheat, I’d call it out every time. But the implication of my statements, in context, is that I am re-affirming that I saw it as out.
Or, suppose you and I are throwing a surprise party for a mutual friend. I tell you, “You know, it’s going to cost some money for the food and drinks for everyone. I’ll go pick up the stuff, but can you afford to pay for half?” You say, “Oh, I can afford to pay my half. That’s the fair thing to do.” Note that you didn’t say you would pay for your half. You just said you can afford to pay half and that it’s the fair thing to do. If I interpret that to mean you will pay half, is there lying involved?
Here’s another example. You apply for a consulting job on a large new construction job. You give them a lot of good ideas about how to go about solving the problems they presented to you. Instead of hiring you, they decide to use your ideas but have the boss’s brother-in-law implement it on the cheap. In fact, that was their intention all along. You ask about it and the boss says, “We looked at your proposal. Many of the elements of it were exactly what we were planning to do anyway, so we figured, we didn’t really need an outside consultant after all.” Sure. They were going to file a plan with the city, just as you proposed. They were going to file an environmental impact statement, just as you proposed. They were going to hire a crew to do the work, just as you proposed. So, yes, many (three, to be exact) of the elements in your proposal were indeed something that they were going to do even before they read the proposal, but there were also many other elements of your proposal that they had not thought about until they heard your proposal. They had not previously considered passive solar heating, gray water irrigation, or battery back-up. In context, they were intentionally misleading you, perhaps to avoid your suing them.
Suppose you go to a doctor to see about allergies. The doctor has just gotten back from a conference where a paper was presented about an expensive new drug (Damitol) that might work for allergies; unfortunately, some patients lose their sense of smell and others break tendons. The drug company mentioned that doctors who publish papers about good results with Damitol will get free tickets to a conference in Hawaii. The doctor engages in the following dialog with you.
Doctor: “There’s a new treatment for allergies,Damitol. I’m recommending it for you. It’s expensive though.”
You: “Oh, well… aren’t there cheaper drugs?”
Doctor: “Yes, but they don’t always work.”
You: “Does the new drug, Damitol, have side-effects?”
Doctor: “Every drug can have some side-effects, but personally I’ve never seen a single patient with bad side effects from Damitol.
You spend a lot of money on Damitol and lose your sense of smell. Worse, you snap your Achilles tendon.
Did your doctor lie to you? Did he intentionally mislead you?
Are those mealy-mouthed misleaders the kind of characters you really want on the Supreme Court? I certainly do not. It may be tempting to think: “Well, it’s okay to cheat because they are on my side.”
That is precisely the flaw that dictators and would-be dictators have used to gain power since the beginning of time. “Look here,” they say, “I’m on your side. And once I get in power, I’m going to favor you by cheating for you.” It never turns out that way. They lie, and cheat, and appear to favor you in order to gain power. Once they gain power, they will wield it to steal from everyone including you. Putin, e.g., kills generals and oligarchs who support him when it suits him. Killing “the faithful” is an important tool to keep everyone in line. The message is that it doesn’t matter who you are or what you believe or what you’ve done for the dictator in the past. The only thing that matters is what they feel like doing at that moment.
It’s no “accident” that Justice Alito cited an English judge who condemned women to death for witchcraft! It’s a signal to every guy who never learned how to partner or be successful in consensual relationships: “Hey! I’m going to help create a world in which you never have to ask for sex again! Women should be chattel. You’ll be happier that way. And so will they. And if they don’t do what you want, we’ll burn them at the stake. I’ll help you get revenge on all those women who turned you down! And once we begin to burn them at the stake for ‘witchcraft’ (another word for ‘disobedience’), you’ll be surprised how docile they become.”
Draft opinion overturning Roe v Wade