Where is the Ninth Amendment to the Constitution when we need it? For those who don't recall, and that clearly includes most of the judiciary, the ninth amendment states that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." It was placed into the Bill of Rights because of fears that the enumeration of rights contained in the first eight amendments to the Constitution would lead to all other rights no longer being protected by the government. Those fears, we've seen, have been prescient.
Today's case in point: New York City's law that bans people from dancing in bars, upheld by the state Supreme Court yesterday. Apparently written originally to take on speakeasies, the Supremes ruled that neither the state nor federal constitutions provided people with a right to dance.
Anyone who has ever seen me dance knows that I am not particularly aggrieved by not having the right to do so. But there is an important principle at stake when the state determines that it can arrest people for dancing. Government is supposed to exist to protect people's rights, not to curtail them. While it is true that any law curtails people's freedoms, good laws do so in order to protect other freedoms. Laws against murder or rape, for example, curtail freedoms that people in societies should not have. Human beings have an unfortunate tendency to want to force others to live the 'right' way, which is why Americans wrote the Constitution in the first place. By strictly limiting the reach of the federal government and making the rights of the people virtually unbounded, the Constitution was intended to protect the rights of all.
But the Constitution is only a piece of paper. It must be enforced by government, and government has a vested interest in going well beyond the reach of the Constitution. Which brings us to where we stand today, where a law barring people from dancing is not seen as restricting protected rights. Yet if government can make laws against people doing something as utterly harmless as dancing, what can the government not do? Very little, it would seem.
Comments (1)
Nice little write-up on the few citations of the Ninth here. The last sentence of that page sums up the problem -- "But if there is a claim of a fundamental right which cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from abridgment?"
Posted by kenB | February 24, 2007 9:53 PM
Posted on February 24, 2007 21:53