DEADORLIVING?

By Donald F. Smith, Jr., Esquire

Ihave been pondering.

The Summer 2022 issue of The Berks Barrister featured two views on the United States Constitution’s Ninth Amendment. One by BCBA Past President Joan London and one by Assistant District Attorney Raymond Edward Baker were each thoroughly researched and well written. Their debate prompted me to ponder the Ninth.

Its language is short, direct but…vague: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Both correctly note that the Amendment has only received passing mention, when mentioned at all in an opinion. Mr. Baker writes that “it has not been the pillar of the expansion, exclusion or protection of rights…” Ms. London cites an observation that it “rests easily in the margins and footnotes of constitutional law.”

Mr. Baker concludes that, with the “Legal Left taking the offensive…an amendment once tossed out like a useless acorn into the dustbin of history may yet grow into a mighty oak.”

On the other hand, Ms. London, applying the originalist theory of interpretation, concludes “the Ninth Amendment was adopted to limit the powers of government, especially the federal government, and was not intended as a source of new or additional Constitutional rights.”

Originalism makes my blood boil. Originalist Justices are Scalia, Thomas, Alito, Gorsuch, Kavanaugh, Barrett and sometimes Chief Justice Roberts. For them, constitutional interpretation is set by the “original understanding” of the document’s language at the time ratification occurred of its seven articles in 1789, the Bill of Rights in 1791 or the Fourteenth Amendment in 1868. Determining our Constitutional rights in the 21st century requires looking to the 18th and 19th centuries. In their mind, the document is dead.

Justice Alito, in his Dobbs opinion overruling Roe v. Wade, actually demonstrates the fallacy of the theory when he cites Brown v. Board of Education in support of overruling an egregiously wrong precedent. Adam Liptak, the

New York Times Supreme Court reporter, disclosed interesting facts in his August 1, 2022 “Sidebar” column.

“The weight of the historical evidence is that the people who from 1866 to 1868 proposed and ratified the 14th Amendment, which guaranteed ‘equal protection of the laws,’ did not understand themselves to be doing away with segregated schools.”

Referring to his Dobbs opinion, Liptak writes: “Justice Alito said that ‘the Constitution makes no mention of abortion.’ A 1956 statement by Southern members of Congress who objected to no originalist justification for Brown. Liptak concludes: “Brown is generally considered to be a moral triumph and the Supreme Court’s finest hour. A theory of constitutional interpretation that cannot explain Brown is suspect, if not discredited.”

When Justice Scalia was asked, at a law school event, how he reconciled Brown with his originalist theory, he replied, “Even a broken clock gets it right twice a day. Next question.”

Mr. Baker writes in his Barrister piece that “for the past 30 years, the left side of the legal field has lacked a response to Originalism.” That has now changed.

This past September, Berkeley Law School Dean Erwin Chemerinsky’s book, Worse than Nothing—The Dangerous Fallacy of Originalism, was published. It shreds the theory to pieces! An easy read, I recommend it.

In regards to the issue addressed in the Barrister debate, Dean Chemerinsky finds that it is “clear that the Constitution’s enumeration of rights is incomplete and that other rights exist and can be protected…The Ninth Amendment gives courts permission to interpret the Constitution outside of the range of its drafters’ original intentions; in other words, it is a provision that authorizes nonoriginalism.”

Brown, which came to be known as the Southern Manifesto, made a similar point: ‘The original Constitution does not mention education. Neither does the 14th Amendment nor any other amendment.’”

Liptak continues: “In the abortion decision, Justice Alito wrote that ‘by the time of the adoption of the 14th Amendment, three-quarters of the states had made abortion a crime at any stage of pregnancy, and the remaining states would soon follow.”

The Manifesto, in 1956, made a similar point. Of the 37 states in 1868, “26 states that had any substantial racial differences among its people either approved the operation of segregated schools already in existence or subsequently established such schools by action of the same lawmaking body which considered the 14th Amendment.”

If such is the original understanding of the Fourteenth Amendment, there is

Among other sources, he cites a 1987 law review article by H. Jefferson Powell wherein the law professor writes, that with the Ninth, the Framers “chose to leave a question of constitutional meaning for later interpreters.” Thus, its vagueness.

Following 207 pages of terrific analysis, Dean Chemerinsky concludes: “Now is the time to get past the debate over originalism and non-originalism and focus instead on a far more consequential question. What meaning for the words of the Constitution would advance the noblest goals of a modern, democratic, pluralistic society, and how should that meaning be applied in specific cases?” The document is alive!

After much pondering, I have decided that Mr. Baker’s vision for the Ninth is correct. May it indeed grow into a mighty oak!

Mr. Smith is Executive Director Emeritus of the Berks County Bar Association.