Ninth Life: An Interpretive Theory of the Ninth Amendment CHASE J. SANDERS* TABLE OF CONTENTS I. INTRODUCTION TO AN INTERPRETIVE THEORY ................. 760 II. THE HISTORY OF THE NINTH AMENDMENT ................... 763 A. The First ConstitutionalQuandary ....................... 763 B. The Madisonian Resolution ........................... 767 C. JurisprudentialHistory ............................. 769 III. AN INTERPRETIVE THEORY OF THE NINTH AMENDMENT ........ 773 A. The Ninth Amendment as Guardian of Unenumerated Rights ... 773 1. A Review of the Incorporation Question and the Incorporation of the Ninth Amendment ................ 774 2. Rights, Powers, and the Ninth Amendment's Constitutional Role ............................. 781 "3. The Case for Judicial Recognition of Ninth Amendment Rights ............................. 788 a. The Meaningless Ninth Amendment Defense ......... 791 b. The Judicial Unenforceability Defense .............. 792 c. The Alternative Reference Defense ................. 794 d. The Rule of Construction Defense ................ 796 4. Conclusion .................................... 799 B. The Nature of Ninth Amendment Rights .................. 799 1. The (Troublesome) Question of Natural Law ............. 800 2. Ninth Amendment Rights as Defined by Lack of Substantive Harm .............................. 806 3. Conclusion .................................... 816 C. Conclusion ...................................... 817 IV. APPLICATIONS ..................................... 818 A. Sexual Expression and Autonomy ........................ 818 B. Procreative Choice ................................ 823 C. Pornography and Obscenity ........................... 826 D. Other (Possible) First Amendment Misfits ................. 831 E. Miscellaneous Ninth Amendment Candidates................ 834 F. A FinalNote on Two Important Special Cases .............. 837 G. Conclusion ...................................... 839 V. CONCLUSION ...................................... 839 VI. EPILOGUE ........................................ 842 t © Copyright 1994 by Chase J. Sanders. All rights reserved. * Associate, Piper & Marbury, Baltimore, Maryland. J.D., Harvard University, 1992; M.P.P., Harvard University, 1992; B.A., University of Virginia, 1988. INDIANA LAW JOURNAL [Vol. 69:759 The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. UNITED STATES CONSTITUTION AMENDMENT IX I. INTRODUCTION TO AN INTERPRETIVE THEORY In 1986, in Bowers v. Hardwick,' the Supreme Court upheld a Georgia statute criminalizing sodomy, thereby declining to recognize a fundamental constitutional right to engage in homosexual sex. Announcing that the right of privacy, recognized in earlier decisions involving procreative freedom, did not extend to homosexual activity, the Court disparaged sodomy as far less important than the "fundamental individual right to decide whether or not to beget or bear a child."' 2 The Court, in short, proclaimed that sex for homosex- uals is constitutionally less important than sex for heterosexuals. In 1990, in Cruzan v. Director,Missouri Department of Health,3 the Court did recognize a fundamental constitutional "right to die," that is, to have life support systems disconnected under certain circumstances. The Court, however, analyzed the right not as a matter of privacy but as one of liberty. Citing its decision in Bowers to construe privacy narrowly, the Court quietly observed in a footnote: "We believe that [the right to refuse treatment] is more properly analyzed in terms of a Fourteenth Amendment liberty interest."4 Thus, in the space of just four years, the Supreme Court closed the privacy door on a right it disdained-homosexual sodomy-only to find itself forced to open a liberty window for a right it preferred-the right to die. What the Court could no longer do with "privacy" after Bowers, it chose to 5 do with "liberty." These cases demonstrate how a significant portion of American constitution- al rights jurisprudence has stagnated. As the contrast between Bowers and Cruzan illustrates, the Supreme Court continues to fumble for a coherent method of analyzing rights claims which appear strong, but which are not readily pigeonholed into specific constitutional provisions-so-called unenumerated rights. If, hypothetically, a state made it a crime to walk down the street, the Court would surely strike down the law as unconstitutional; but whether it would do so as a matter of privacy, liberty, or some other means is difficult to predict. All that can be said with certainty is that the Court would grope its way to the conclusion that the right to walk down the street is "fundamental," and is therefore constitutionally protected. 1. Bowers, 478 U.S. 186 (1986). 2. Id. at 190 (citation omitted). 3. Cruzan, 497 U.S. 261 (1990). 4. Id. at 279 n.7 (citation omitted). 5. Recognition of this interesting contrast between Bowers and Cruzan is owed to Martha Field. Professor Martha Field, Lecture at Harvard Law School (Oct. 11, 1991). 1994] NINTH LIFE Indeed, "fundamentality" seems to be the one consistency in the Court's unenumerated rights jurisprudence. If the Court can deduce that an asserted right is "fundamental," it will protect that right, one way or another. Unfortunately, no one can identify the adhesive by which the fundamentality label sticks to certain rights and not others. What is clear is that the adhesive is fickle; for fear of diluting the "fundamentality" concept, the Court applies it sparingly. For every new right it recognizes, like the right to die, the Court rejects others, like homosexual sex. Thus unenumerated rights jurisprudence has stagnated at a relatively fixed bundle of rights. The New York law firm method of evaluating unenumerated rights continues-for every new right accepted as a full partner in the constitutional constellation, others are dismissed lest the partnership grow too fast and collapse under its own generosity. This Article explores a largely unexplored constitutional provision which may significantly inform the current stagnation enveloping unenumerated rights. The Ninth Amendment to the Federal Constitution provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The text seems straightfor- ward: the Constitution contemplates other rights besides those specifically listed in the first eight amendments and elsewhere. The Ninth Amendment, in other words, appears to speak to unenumerated rights. But for two centuries now the Ninth Amendment has played a negligible role in rights jurispru- dence. Until 1965, only about ten Supreme Court decisions had even mentioned the Ninth Amendment, and no case has ever relied on the Amendment as an exclusive or even primary rule of decision. There seems to be but one simple reason underlying the Ninth Amendment's neglect: it appears incapable of practical interpretation. No one has yet discovered a mechanism for empowering courts to identify the "other[] [rights] retained by the people" that does not dramatically swell the judi- ciary's head on the three-headed hydra of American government. So the courts have ignored the Ninth Amendment altogether. They have treated it as though it does not envision judicial protection for unenumerated rights at all, a notion which has gained credence through the inertia of its neglect. Sub silentio, the courts have gradually instilled the idea that there is, in fact, no such thing as Ninth Amendment rights. Predictably, this historical neglect of the Ninth Amendment has taken its toll, as the Amendment currently finds its credibility as a legitimate constitutional entity woefully damaged. As John Hart Ely writes, "[i]n sophisticated legal circles mentioning the Ninth Amendment is a surefire way to get a laugh."6 This Article braves the laughter, or at least the widespread skepticism surrounding the Ninth Amendment, out of a conviction that a constitutional provision should not be ignored simply because it is hard to interpret. This Article is devoted to the idea that the Ninth Amendment must mean something. As the very first Ninth Amendment thinker wrote, "[i]t must be 6. JoHN H. ELY, DEMOCRACY AND DIsTRusT 34 (1980). INDIANA LAW JOURNAL [Vol. 69:759 more than a mere net to catch fish in supposedly fishless water."'7 This Article therefore assumes the task of positing an interpretive theory of the Ninth Amendment. Specifically, this work will defend the following thesis: The Ninth Amendment protects the right to engage in, and prevents govern- mental encroachment into, any activity orpractice which entails no possibility of harm to either the actor or other people. Only the significantpossibility of tangible physical or economic harm, not "harm" in the form of public disapproval or moral offense, can justify governmental intrusion under the Ninth Amendment. The Article supports this thesis as follows: Part II traces the history of the Ninth Amendment, both its enactment and its jurisprudential history. This historical study has two objectives. First, it describes the Ninth Amendment's evolution in requisite detail (but no further) to reveal the clues which history offers for Ninth Amendment interpretation. Second, it provides this historical account objectively, so that critics might point out any contrary implications of the account. Part III then relies on Part II to develop the actual thesis of the Article, the interpretive theory of the Ninth