Other Rights

The 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:

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

There are, then, rights enjoyed by the people other than those explicitly listed in the Bill of Rights, several of which are discussed below.

Rights guaranteed in the body of the Constitution

Article 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.

A 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.

The 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).

The 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.

The Constitution also gives the Congress the authority to regulate 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"

As 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:

No 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.

The 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).
The right 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 program.

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.

Defining Viability

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.

Eight 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.

States 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 before viability."

Several 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 veto.

The 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.

1. 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).