Full discussion of today’s Supreme Court decision overturning Roe v. Wade must take place. We need to understand our own emotional response and that of others. We need to recognize that this is the beginning of a long period of adjustment in our society as we reconsider child welfare, parenting, health care and income disparity in a different light. And clearly we are at the beginning of a new understanding of the nature, role, and meaning of gender and a new awareness of the extent to which we diminish all of us when we fail to respect any group or individual as we would ourselves wish to be respected.
The strength of a society is dependent upon the care and love we give our children. Before birth and after. There are life and death choices that must be left to the individual. And others that should not. A simple blog is no place for such a discussion. It will be central to our culture and to our future. And it must take place with passion AND reason.
What I can ask of you today is to consider under the limitations of this format an equally important related topic. One I think that can be stated without ambiguity.
The authority of a Democracy is either constitutionally limited or not. If not, then government policies are legitimate, i.e. required to be accepted and followed, if they are simply the will of a majority of the citizens. Constitutional Democracies, on the other hand, limit majority rule. They enshrine rights, actions by individual citizens that cannot be threatened by majorities. They draw a line.
We will and must debate what these rights are. Our Constitution gives us guidance, but only after the most careful consideration of its language and a recognition that interpretation is both possible and necessary. I cannot imagine a document that could specify in precise, rather than general, terms all that we as a sovereign people should (must?) decide to place on either side of this line.
The framers of our Constitution recognized this. It was their “original intent.” Read the 9th Amendment to the Constitution, part of what we refer to as “our Bill of Rights:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Over time we have gained experience, accepted new scientific evidence, and viewed other “rights” as “retained by the people.” The founders foresaw this.
I write this with one purpose in mind. I ask you to seriously question the idea that all individual human behavior can, should or must be subject to restraint by majority rule, meaning democratic legislative action in separate parts of the Republic.
The 9th Amendment meant what it clearly states.
Of course, others will argue that the amendment was intended to limit the power of the Court and the Federal government from imposing further "rights" on the States, "left to the people" means then "left to the States." You clearly have a right to your own interpretation and the right to argue for it. My main point in my blog is that there is a logical inconsistency with interpreting rights as a limit on majority decision and seeing them as subject to majority decision in State processes. If, however, you see the main point of our Constitutional 'rights" as reserving power to the States, i.e. State rights vis a vis, Federal, then you read the amendment differently. However, many or most I think, would see the 14 Amendment took care of this. Let me hear from you lawyers. I just slept at the Holiday Inn.
In a book, "Rights Retained by the People," Barnett brings together a collection of views on the 9th Amendment. I favor Bennett Patterson's approach, as stated by Barnett:
"Bennett Patterson would allow Ninth Amendment interpretation to be an extremely dynamic force in protecting individual rights. Patterson believes our perception of rights to be constantly evolving. Accordingly, the rights retained by the people are forever being refined and distilled. The Ninth Amendment is necessary protection for these newly evolved rights. The Founders had no way to describe rights which they were incapable of recognizing but which they somehow instinctively knew existed."
The history of this amendment is fascinating, by the way.