The Old Schoolhouse Magazine

www.TheOldSchoolhouse.com 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 authority.

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
that mean?

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
illustrate.

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 a right?

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
polygamy?

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 www.kevinmarksmith.com.

Endnotes:

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.

3. http://legal-dictionary.thefreedictionary.com/ penumbra

4. 381 U.S. 479 (1965).

5. Ibid. at 480.

6. Ibid.

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.

11. Ibid.

12. 405 U.S. 645 (1972).

13. Ibid. at 646-47.

14. 410 U.S. 113 (1973).

15. Ibid. at 117-18.

16. Ibid.

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”).