rights of the American people are not limited to those
included in the Bill of Rights alone. In fact, some
of the most important rights secured to the people
are guaranteed in the body of the Constitution itself.
Furthermore, the Ninth Amendment, addressing one of
the fears of the opponents of adding a Bill of Rights
to the Constitution, states:
enumeration in the Constitution of certain rights
shall not be construed to deny or disparage others
retained by the people.
are, then, rights enjoyed by the people other than those explicitly
listed in the Bill of Rights, several of which are discussed
Rights guaranteed in the body of the Constitution
I, Section 9 of the Constitution guarantees the "privilege
of the writ of habeas corpus" (see "Rights
of the Accused") and prohibits the Congress from
passing "Bills of Attainder" or ex post facto laws.
bill of attainder is a legislative act that inflicts
a punishment or detriment on a specifically named individual
or group of individuals. A commonly cited example is
a legislative act that finds an individual guilty of
a crime and imposes a penalty on that individual. Such
acts are banned by the Constitution because they are
not a legislative function. Assessing the guilt of
individuals in criminal cases is a function of the
judiciary. Moreover, a bill of attainder violates the
guarantee of due process because it does not offer
the accused the opportunity to defend themselves.
Supreme Court has ruled that a legislative act need
not assign criminal guilt to an individual to be an
unconstitutional bill of attainder. In a landmark case,
the Court ruled that the Congress violated the Constitution
when it singled out, by name, specific State Department
employees it did not want paid (see United
States v. Lovett).
prohibition against ex post facto laws means
that the Congress cannot pass a law imposing criminal
sanctions on an action that was not criminal at the
time it was committed. For example, if you spit on
the sidewalk yesterday, the Congress could not pass
a law making sidewalk-spitting illegal and punish you
for what you did yesterday. If you spit on the sidewalk tomorrow,
then you could be punished under the new law, but not
for what you did before the law was passed. Similarly,
the Congress cannot retroactively impose harsher penalties
on an action or make it easier to prosecute a crime
after it was committed. One of the key tenets of the
rule of law is that laws must be widely known and understood
before they are enforced. An ex post facto law
would clearly violate this principle by punishing people
for actions they did not know were illegal at the time
they committed them. The Supreme Court has determined
that retroactive tax laws or other noncriminal provisions
do not violate the Constitution.
Constitution also gives the Congress the authority
interstate commerce. and forbids the states from
passing any law "impairing the obligation of contracts." While
these two provisions are not generally thought of as
protecting the rights of the people, one of the primary
motivations for drafting and adopting the Constitution
was the government's inability to regulate commerce
under the Articles of Confederation. The inability
of states to alter the contracts into which individuals
enter, both within and across states, also allows individuals
to have confidence in their economic agreements. This
confidence, together with a Congress empowered to regulate
interstate commerce, provides the stability and order
necessary to support a multi-trillion dollar economy
in which the people are free to buy, sell, trade and
pursue their economic interests.
"Others Retained by the People"
noted above, the Ninth Amendment to the Constitution
makes it clear that the people of the United States
have rights other than those explicitly listed in the
Constitution. The Fourteenth
Amendment, added to the Constitution after the
Civil War, also suggests an expansive notion of rights.
It states, among other things, that:
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of
life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction
the equal protection of the laws.
primary effect of the Fourteenth Amendment was to forbid the
states--not just the national government as before--from infringing
upon the rights of the people, whether explicitly listed in
the Bill of Rights or not.
How Many Rights Do We Have?
The Ninth Amendment states that the rights of the people are not limited
to those listed in the Bill of Rights. Are these what the Framers had in
mind? 1 Note: These are actual "rights" which have been claimed by individuals
or government officials in a court of law or some other official setting.
The right to play baseball in spite of being addicted to cocaine. (An
arbitrator ruled it wasn't the player's fault he was addicted).
of women to use men's bathrooms.
The right to wear a backpack at school.
The right not to hear "naughty
language" on the school bus.
The right of homeless persons to "safe
zones" where they can
eat, sleep and live.
While the notions that the rights of the people extend beyond those listed
in the Constitution and that the states must respect those rights as well
are not controversial. However, they do raise some difficult questions.
For example, what are these "unlisted" rights and who decides
which ones have the same status as the others in the Bill of Rights? While
Americans are increasingly prone to speak of ordinary freedoms (such as
driving a car or pursuing an education) as "rights," are these
really on the same level as the rights of speech, religion and due process?
The Fourteenth Amendment's "equal protection" clause also gives
rise to questions about the equity and fairness of virtually every governmental
Ultimately it is, once again, the Supreme Court that provides
the answers to these questions. In the cases that come before it alleging
a constitutional right to engage in a particular behavior or to be afforded
a particular benefit, the Court must determine the importance of the
claim and its legitimacy in the context of the other rights and principles
embodied in the Constitution.
The Right to Privacy and Abortion
The Supreme Court has issued numerous decisions touching on the rights
of the people covered by the Ninth and Fourteenth Amendments. However,
the most significant and controversial set of cases center on the Court's
identification of the "right to privacy" and its subsequent decisions
about contraception and abortion.
In 1965, the Supreme Court heard Griswold
v. Connecticut, a challenge
of an 1879 Connecticut law prohibiting the distribution of birth control
information. Estelle Griswold was a Planned Parenthood director who had
distributed contraceptives. She was subsequently convicted of violating
the law and her case eventually reach the Supreme Court. In its decision,
the Court ruled that the prohibition violated the "fundamental right
to privacy," a right which it said arose from the "penumbra" or
shadows cast by the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments.
In its decisions in abortion cases, the Supreme Court has ruled that
once a fetus becomes "viable," there is a more compelling
state interest in limiting abortions. In Roe v. Wade, it defined "viability" as
the stage at which the fetus "has the capability of meaningful
life outside the mother's womb." As medical technology has improved,
the point of viability has moved closer and closer to the first trimester
of pregnancy. The Court, however, has not significantly clarified or
modified its original statement on the matter.
years later, in Roe v. Wade,
the Court reaffirmed the right to privacy and applied it to a woman's
decision to have an abortion. In the process, the Court overturned
dozens of state laws regulating abortion. It declared that a woman's
privacy rights were so profound during the first trimester that a
state could impose no limits on her decision to obtain an abortion.
During the second trimester, and as the fetus approaches viability,
the Court found, however, that the state has an increasingly compelling
interest in protecting the health of pregnant women and "potentiality
of human life." During the third trimester, states have a compelling
interest in protecting the life of the fetus and they may ban abortions
altogether at that stage of the pregnancy, so long as exceptions
are made to protect the health or preserve the life of the mother.
have consistently challenged the validity of Roe v. Wade,
attempting to weaken it in a variety of ways. However, the only significant
restrictions the Court let stand are prohibitions on government funding
of abortions (see Beal v. Doe, 1977) and some parental notification
and waiting period laws. In 1992, in Planned
Parenthood v. Casey, a much more conservative Court returned
to the question of the constitutionality of abortion. While leaving
stand the essence of the Roe decision, the Court left the
door open for states to regulate abortions in ways that do not "unduly
burden" a woman's right to privacy. It remains the right of a woman,
however, to make the "ultimate decision to terminate her pregnancy
states have passed laws since the Casey decision testing the
limits of the "undue burden" threshold. Many of these laws have been
overturned by the Court, including a spousal notification requirement.
However, it has let stand state limitations on funding for abortions
or facilities that provide abortions, a requirement that a minor
must notify at least one parent or a judge, and that a state may
require a woman to wait twenty-four hours before obtaining an abortion,
during which time a doctor must inform the woman of alternatives
to abortion. The Congress has made several efforts to ban one of
the most controversial abortion procedures, late-term partial-birth
abortion; but, each time it has been turned back by a presidential
abortion debate has hardly been settled by the Supreme Court's decisions.
In fact, its rulings have only solidified opposition to abortion
and protesters on both sides of the issue regularly clash in front
of capitols and court houses. Emotions run high on both sides and
there is apparently little common ground between the two. The debate
is made all the more intense by the violent acts of a few radicals
who view it not as a political and legal struggle but as a war. Abortion
clinics have been bombed and doctors have been murdered in the name
of protecting the unborn. In America's continual efforts to strike
a balance between liberty and order on which most people can agree,
abortion is one issue which suggests that, at least in some instances,
that balance might never be found.
Adapted in part from George Will, "Our Expanding Menu of Rights" (Newsweek 14
December 1992, 90) and John Leo, "A Man's Got to Have Rights," (U.S. News & World
Report 4 August 1997, 15).