Abortion Right Not in Constitution, Doesn't Mean It Doesn't Exist

The last thing this country needs is another male opining on abortion rights.

So consider this a column not about abortion but about the Constitution.

My friend and former colleague Josh Gerstein’s scoop of a draft Supreme Court opinion has put these issues top-of-mind.

In American history there are two parallel concepts of rights.

There’s a Madisonian "compact" view, embodied in the Constitution of which James Madison was a main drafter. On that view, the rights are agreed on by the citizens, who are then protected by the rule of law.

And there’s a Jeffersonian "natural law" view, embodied in the Declaration of Independence of which Thomas Jefferson was a main drafter.

It refers to men being "endowed by their Creator with certain unalienable Rights," including "Life, Liberty, and the pursuit of Happiness."

The Jeffersonian Declaration of Independence makes a nod to the Madisonian view by noting that “to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

And the Madisonian Constitution makes a nod to the Jeffersonian view by noting, in the Ninth Amendment, "the enumeration in Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Where does that leave us in a rights-based analysis of abortion?

The Supreme Court’s opinion in Roe v. Wade, 410 U.S. 113 (1973) discovered a right to abortion in the Constitution within the "right to privacy."

That privacy right itself had been discovered in a case about birth control, Griswold v. Connecticut, 381 U.S. 479 (1965). Griswold’s declaration that the "specific guarantees in the Bill of Rights have penumbras, formed by emanations," has been widely mocked.

To my mind, the gem within Griswold is Justice Arthur Goldberg’s concurrence. Goldberg, joined by Justice Brennan and Chief Justice Warren, focused not on penumbras or emanations but on the plain text of the Ninth Amendment.

Wrote Goldberg, "The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him, and passed the House and Senate with little or no debate and virtually no change in language.

"It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights, and that the specific mention of certain rights would be interpreted as a denial that others were protected."

He went on, "the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments, and an intent that the list of rights included there not be deemed exhaustive."

Goldberg goes on, "the fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family — a relation as old and as fundamental as our entire civilization — surely does not show that the Government was meant to have the power to do so.

"Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government, though not specifically mentioned in the Constitution."

The notion that people can have rights even if those rights aren’t "specifically mentioned in the Constitution" wasn’t something invented by Arthur Goldberg, or by Ruth Bader Ginsburg, or by some liberal law professor.

It’s right there in the Declaration of Independence. John Adams, Samuel Adams, Thomas Jefferson, Benjamin Franklin, John Hancock and the rest signed on, in July 1776, to the idea of "certain unalienable Rights."

The Bill of Rights was ratified only in 1791. The mere fact that an abortion right isn’t mentioned in the Constitution doesn’t mean it doesn’t exist. The rights don’t come from the Constitution. The Constitution exists to protect the rights, including those it doesn’t explicitly mention.

A problem with rights not written into law is that people may have widely varying views of them. Without legislative language, for example, one person’s idea of a right to an abortion may collide with another person’s view of a fetus or embryo having a "right to life."

If the Supreme Court heads the way signaled by the Gerstein scoop in Politico, Congress and state legislatures will have no shortage of opportunities to try to hammer out language specifying these rights, or balancing them one against the other.

As they do so, though, we’d all be wise to remember what Arthur Goldberg, Thomas Jefferson, and even Madison in crafting the Ninth Amendment all realized and appreciated: merely because a right isn’t listed in the Constitution, that doesn’t mean the right cannot exist.

Ira Stoll is editor of FutureOfCapitalism.com and author of "JFK, Conservative." Read Ira Stoll's Reports — More Here.