there are fundamental criticisms of
the historical premises relied upon
by the majority and concurring
opinions in Bowers. 32
Thus, the only thing we now know is
that if a latter court disagrees with a former court, the latter one won’t hesitate
to slap the former one in the face via
questioning the earlier court’s sources
while citing its own even more suspect
There was nothing erroneous in the
Bowers Court referencing hundreds of
years of laws that prohibited homosexual
conduct, while the Lawrence Court’s reliance on “private” behavior behind closed
doors was specious at best. The Lawrence
Court’s only argument was that the laws
cited in Bowers prohibited homosexual
conduct in public and not in a person’s
bedroom so, obviously, it was okay to be
gay and do such things privately. “Laws
prohibiting sodomy do not seem to
have been enforced against consenting
adults acting in private.” 33 Notice how
the Court admitted that such laws were
on the books, but they didn’t seem to be
enforced. What? Simply put, history is
against the acknowledgment of the right
to engage in homosexual conduct. Period. But when courts don’t care about
precedents, such history, legally and otherwise, is irrelevant.
Our living, breathing
Constitution . . . whatever does
In conclusion, the Ninth Amendment
and its inherent power to create rights
where they’ve never before existed has
taken a sacred document and turned it
into something to be misused by those
who don’t care about the logic and reasoning that led to its adoption in the
first place. The drafters of the Bill of
Rights had great intentions behind this
amendment. Simply stated, many believed a Bill of Rights was unnecessary
and perhaps even a little bit dangerous.
If rights are unalienable and exist before
such a Bill, then why have the Bill at all?
If anything, enumerating our rights in
the Constitution ran the risk that gov-
ernment wouldn’t admit that additional
rights existed—such as the right to have
children. 34 If a right isn’t named, then
you don’t have it, which is just one step
away from the mindset that the Constitu-
tion grants rights and a few further away
from the concept of God-given, unalien-
able ones. But there’s a danger to this as
well—a danger that the above opinions
Some argue that we have a “living,
breathing Constitution” that is subject to
modification merely through new court
opinions. If one considers the impact of
the above court decisions, it’s hard to argue that this mindset is now in control.
The Founding Fathers included a very
powerful tool in the Constitution: the
ability to amend it. If the People want a
new right that was not contemplated by
the Founders, they can amend the Constitution. This process has been honored
dozens of times. We’ve even reversed
earlier amendments with new ones
(prohibition). The beauty of this is that
it’s the People as a whole who make the
changes and not one victorious political
party that nominates new judges that
make promises behind closed doors to
support one cause or another. Thus, the
“living, breathing” argument arises, an
argument that doesn’t need the checks
and balances built into the amendment
process to accomplish its objectives. No
need for 2/3rds of the Senate and House
of Representatives to approve. No need
for 38 of the 50 States to approve. Just
win a presidential election and start
appointing new judges to vacated positions. Win two presidential elections
back-to-back, and the entire structure
of America will change.
As Barack Obama famously put it in a
speech at the University of Missouri on
October 31, 2008, “we are five days away
from fundamentally transforming the
United States of America.” I say, thanks to
a seemingly omnipotent Supreme Court,
we were transformed long before President Obama’s election.
Questions for Discussion
1. Can you name rights that aren’t specifically stated in the Bill of Rights but
are no less important?
2. Do you have the right to hunt? Why
or why not? Can you think of facts or
an argument that would support such
3. What constitutional principle would
support a teenaged child’s right to
have sex? What principle would negate such a right?
4. Most states have statutes on the books
that make it a felony to engage in in-
timate behavior with children. These
laws set the threshold for such illegal
conduct from ages 16 (Kansas) to 18
(California). What about this chapter
and its cited Supreme Court opinions
would call the constitutionality of
such laws into question? What about
5. Considering number 3 and 4 above,
what about the current structure and
interpretations of the Ninth Amendment could result in such a right being granted?
Kevin Mark Smith is an allied attorney with
the Alliance Defending Freedom in Wichita, Kansas, where he lives with his wife and
three daughters. He writes often on the law,
homeschooling, and issues of importance to
Christians, families, and conservatives on
1. See United States v. Jones, 132 S. Ct. 945 (2012)
(allowing placement of GPS tracking devices
on vehicles without warrants).
2. See Article V of the Constitution.
4. 381 U.S. 479 (1965).
5. Ibid. at 480.
7. Griswold, 381 U.S. at 482-83.
8. Ibid. at 484 (italics added).
9. See Poe v. Ullman, 367 U.S. 497, 516-22 (1961).
10. Griswold, 381 U.S. at 485.
12. 405 U.S. 645 (1972).
13. Ibid. at 646-47.
14. 410 U.S. 113 (1973).
15. Ibid. at 117-18.
17. Roe, 410 U.S. at 152.
18. C.f. Strandberg v. City of Helena, 791 F. 2d 744
(9th Cir. 1986) (“the ninth amendment has
never been recognized as independently securing any constitutional right, for purposes of
pursuing a civil rights claim”).
19. 478 U.S. 186 (1986) (declining to hold that the
Right to Privacy protects homosexual activity).
20. 539 U.S. 558 (2003) (holding that the Right to
Privacy protects homosexual activity).
21. 478 U.S. 186 (1986).
22. Ibid. at 188.
23. Ibid. at 189.
24. Bowers v. Hardwick, 478 U.S. at 190-91 (citing
Carey v. Population Services International, 431
U. S. 678, 688, n. 5, 694, n. 17 (1977)).
25. Ibid. at 191-92.
26. Ibid. at 192.
27. 539 U.S. 558 (2003).
28. Ibid. at 562.
29. Bowers, 478 U.S. at 190-91.
30. See Lawrence, 539 U.S. at 562.
31. Lawrence, 539 U.S. at 564.
32. Ibid. at 567-68.
33. Ibid. at 569.
34. See Buck v. Bell, 274 U.S. 200 (1927).