Ninth Amendment
Most of the founders thought it was a pointless exercise to define all the fundamental rights that humans may pursue because there are literally thousands of fundamental rights, such as the right to brush your teeth and shower. Thus, many founders objected to a Bill of Rights because they feared unenumerated rights (or rights not listed in the Bill of Rights) would not be protected or protected as vigorously as those rights enumerated in the Constitution. James Madison resolved this conundrum with the Ninth Amendment that protects all unenumerated rights.
Unfortunately, legislatures and courts very rarely use or rely on the Ninth Amendment for two reasons. First, many legal experts claim that the meaning and intent of the amendment is ambiguous. The vagueness claim is confounding since the amendment is self-explanatory. More importantly, information explaining why James Madison included it in the Bill of Rights is readily available.
Second, many legal experts refer to the Ninth Amendment as Pandora’s box. Legal experts fear that complications may arise from using the amendment. For example, one issue that may arise is if both liberals and conservatives use the amendment to protect politically motivated activities that are not fundamental rights. Regretfully, those fears have already been realized when the Supreme Court protected government created entitlements as rights. Of course, we already learned that it is impossible for governments to create rights since political issues will never have near unanimous support in society. Clearly, the apprehension or fear of how the amendment would be used could have easily been averted. If legislators and courts would simply define what a fundamental right is and define the criteria necessary for a right to earn constitutional protection, then that would alleviate those fears of politicians using the amendment for political gain.
Slaughter-House Cases (1873)
In the Slaughter-House Cases, the Supreme Court ruled that the city of New Orleans could pass a law that would monopolize the butcher industry to prevent cholera cases. That sounds reasonable, the Supreme Court wanted to protect the safety and wellbeing of citizens from the unhealthy practice of butchers dumping waste into the drinking water. However, does providing one butcher company a monopoly choose the least evasive method for the government to achieve its goal of public safety?
No, closer inspection and commonsense would lead one to think the City of New Orleans did not have to eliminate the right of dozens of butchers to work a lawful profession (work should be a privilege and immunity protected by the Fourteenth Amendment). A more reasonable solution would call for the City of New Orleans to pass a law that outlines the proper methods for butchers to dispose of waste instead of removing the livelihood of hundreds of people. It is not uncommon for governments to rely on fear from a public crisis to needlessly infringe on the rights of individuals and workers.
One hundred and fifty years after the Slaughter-House Cases, state governments passed dozens of laws that protected the rights of citizens unequally in response to the Covid pandemic. For instance, church activities were regulated more stringently in some states than other activities such as attending movie theaters, indoor sporting events, and beauty salons.
Fourteenth Amendment (1868)
Justice Samuel Miller essentially redacted the Privileges and Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases.
Miller relied on a very narrow reading of the Privileges and Immunities Clause to imply the sole focus of the amendment was for equal rights for freed slaves, but not equal rights for white men or women denied the right to work in the Slaughter-House Cases. During the same Supreme Court session, in Bradwell v. Illinois (1873), SCOTUS also decided it was legal for the state of Illinois to deny Myra Bradwell the right to practice law because she was a woman. Bradwell, by the way, completed law school and passed the Illinois bar exam and therefore, under no circumstance should her right to work have been revoked. It was clear the right to work was under assault in both Bradwell and the Slaughter-House Cases.
Furthermore, Justice Miller erroneously argues that the Privileges and Immunities Clause does not protect citizens from states infringing on even those rights enumerated in the Bill of Rights. Justice Miller elaborated that the Fourteenth Amendment only protected privileges and immunities for national citizenship but not rights specific to state citizenship such as those rights defined in Corfield v. Coryell.
While it is true that Corfield pertained to a state issue, Corfield does not provide states the authority to deny citizens of their fundamental rights. Moreover, the rights listed by Justice Washington in Corfield were not just the rights for a select few, but they were rights of all United States citizens.
Justice Miller also erred because there should not be any distinction between the rights protected by both national and state citizenship. The Citizenship Clause of the Fourteenth Amendment states, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” I read this clause to suggest state and national citizenship are synonymous. Furthermore, in Gassies v. Ballon (1832), Chief Justice John Marshall settled the citizenship issue when he wrote, "a citizen of the United States, residing in any State of the Union, is a citizen of that State …"
Substantive Due Process
To compensate for the egregious error made by Justice Miller who essentially redacted the Privileges and Immunities Clause in the Slaughter-House Cases and the fact the Ninth Amendment is ignored, a doctrine called Substantive Due Process was established by Justice Samuel Field to identify and protect unenumerated fundamental rights. In future articles we will explore why the era of Substantive Due Process has not been very successful in protecting unenumerated rights. In fact, the doctrine has been very rarely used to identify and protect unenumerated rights during the 20th and 21st century.
The next few series of blogs will explore why some actions are rights while others are not. These blogs will address marriage, abortion, rights of illegal immigrants, and the right to work.
Patrick Bohan is not a historian or lawyer, just a patriot who has independently studied these subjects.
