RIGHT TO EAT FOOD AND BREATHE AIR; 9TH AMEND.

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

Amendment Nine.

NOTE: The first ten Amendments (the Bill of Rights) were adopted in 1791.

Among the images, analogies, metaphors, and other figures of speech out of which Con-Law is made, I like to mention the constitutional right to eat food and breathe air.

Where do you find those in the Constitution?  There's no mention of food or air.

Nor family, travel, or privacy, either.  Yet each of these are deemed to be "in" the Constitution as firmly as if they had been written in with a quill pen in 1787, despite the gnashing of teeth of those who think that new rights should not be read in where the Framers' intentions do not appear to allow them.

See Moore v. East Cleveland for family, N.Y. v. Soto-Lopez, and Saenz, for travel, and Griswold, Roe, and Lawrence for privacy as well as equality, among others.  You don't get cites here because blogging is done off the head, which means I put down what pops up and you go to Findlaw and enter the name to read the case, just as if we were talking, as we are.  This is not the law review.

Here is Harvard Law's Prof. Laurence Tribe, author of the leading encyclopedia on Constitutional Law (American Constitutional Law, Foundation Press) responding to a magazine attack that uses something he wrote, a personal memoir following the death of his father and a certain impact it had on him.  At the time, Tribe was soon to make his first argument before the Supreme Court, insisting on the public's right to attend public criminal proceedings, in Richmond Newspapers, Inc. v. Virginia (1980).

While the defendant had such a right, the defense moved to exclude the public from attending, hoping to prevent cross-contamination of witnesses in a murder case where family members of the victim might talk to others who were likely to be called as witnesses.  Normally witnesses are barred, on a motion to exclude, but not their family members, as here.

Tribe says that he argued that barring victims' families denied them the sense of justice they need to feel before considering a matter more-or-less settled in their hearts and minds.  Tribe says that he felt such a comfort in seeing his late father lying in his casket at the wake.

The Ninth Amendment, which reserves unenumerated rights to the people and commands that they not be disparaged for not being expressly written in the document itself, authorizes us to reason beyond the text, Tribe maintained.

Thus when we attempt to define the empty-basket phrases, "due process" and "equal protection of law" we have to fill the basket with meaning as we go along.  We fill it with such fruit as family, travel, parentage, privacy, the right of the public to attend criminal trials, and, if necessary, the right to eat food and breathe air. Isn't that a nice way of looking at Con-Law?  You could watercolor it if you wanted, and you'd probably learn more than by reading a book.  Depends on the book, I guess.  I like the visualization method, myself.

If we have a due process right to life, as we do (5th & 14th), then we have these rights as well, as I reason it, Laurence Tribe and Richmond Newspapers, supra, being my authority, right after the Ninth Amendment itself.

See below, for an excerpt from the Court's opinion regarding unenumerated rights found to be implicit in enumerated ones, and recall that to protect the core, one must protect the fringe, although who is to say that today's fringe won't be tomorrow's core.  Privacy was once considered fringe, but now would considered core, I believe.

Excerpt from the opinion of the Court:

"The State argues that the Constitution nowhere spells out a guarantee for the right of the public to attend trials, and that accordingly no such right is protected. The possibility that such a contention could be made did not escape the notice of the Constitution's draftsmen; they were concerned that some important rights might be thought disparaged because not specifically guaranteed. It was even argued that because of this danger no Bill of Rights should be adopted. See, e. g., The Federalist No. 84 (A. Hamilton). In a letter to Thomas Jefferson in October 1788, James Madison explained why he, although "in favor of a bill of rights," had "not viewed it in an important light" up to that time: "I conceive that in a certain degree . . . the rights in question are reserved by the manner in which the federal powers are granted." He went on to state that "there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude." 5 Writings of James Madison 271 (G. Hunt ed. 1904). 15

 

But arguments such as the State makes have not precluded recognition of important rights not enumerated. Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable [448 U.S. 555, 580] doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. 16 The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined.

We hold that the right to attend criminal trials 17 is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and "of the press could be eviscerated." Branzburg, 408 U.S., at 681 .

 

Comments

[Ed]

There has been much vehemence from the conservative media in recent times over what they term "activist judges," who are "making law from the bench," and that they are "changing the Constitution and the law" to suit their political biases. They decry the idea of an evolving Constitution, and state that judges should rule based on the law as it is written and how it has been interpreted in the past - not reinterpreted for the present.

These people are especially fond of asking where "rights" that these judges grant can be found in the Constitution: "Where is the right to privacy in the Constitution? Where is the right to use birth control in the Constitution? Where is the right to reproduce and have a family in the Constitution?"

When friends ask me this, I am fond of responding, "They are in Amendment 9. You just have to learn to read it correctly." Perhaps a new pair of reading glasses would help.

Over the years I have come to see Amendments 9 and 10 as a reiteration of the overriding theme of restraint on federal power that we see throughout the Constitution and Bill of Rights. "Congress shall pass no law," indeed. It is not the federal government that has the power to do anything which is not expressly prohibited it; it is the *people* who have that right.

Somewhere along the line, that got lost.