“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” — Declaration of Independence, 1776
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” — Ninth Amendment to the Constitution, 1789
When I heard Texas Senator John Cornyn’s cloying and patronizing lecture of Supreme Court nominee Ketanji Brown Jackson on exactly what rights were enumerated in the Constitution, what struck me most of all was that Ketanji Brown Jackson, as a Black woman, was not intended to be included in even those “enumerated rights” in our original 1789 Constitution and the subsequent first ten amendments, let alone the unenumerated and unalienable rights. And Thomas Jefferson certainly did not consider Sally Hemmings, the enslaved woman whom he repeatedly raped, or his own children by her who remained slaves during his lifetime, to hold those “unalienable rights” that he himself so cherished.
I am not trained as a lawyer, but I can do cloying as well as the next guy, so here is my response to Senator Cornyn that the new Justice was too tactful to preach back.
The Ninth Amendment, quoted above, says specifically that even though some rights are enumerated in the Constitution, “the people” still retain other, unenumerated rights. However, to name those rights would indeed be to enumerate them, an 18th century version of Schrödinger’s Cat. So let me suggest a different approach:
Assume, as a starting position, that Ketanji Brown Jackson has exactly the same unenumerated and unalienable rights as Jefferson, Hamilton, and Madison assumed for themselves when writing their seminal documents.
Wasn’t that easy?
Now, the 14th Amendment of 1868 did take away one of those rights held by the Founders, which was the right to own other people. So, for starters let’s take that right away from soon-to-be-Justice Ketanji Brown Jackson. I don’t think she will mind.
We also need to make the historical leap of faith to assume that the unenumerated rights “of the people” talked about in the Ninth Amendment are largely convergent with the unalienable rights claimed in the Declaration of Independence several years earlier. Some of the same people were involved in both documents, so this is a reasonable assumption. The authors of the Ninth Amendment wanted to make sure that the enumerated rights in the main Articles were never to be used as limiting assertions, say 250 years later by some jerk of a Texas Senator (and you can’t lose betting on either one).
Next, we can’t go any further unless we recognize that morality and legality are two overlapping, but not concentric, circles. Religious fundamentalists and apparently half of the Supreme Court have not figured out this basic reality. Characteristic of autocratic states, like Saudi Arabia, is a legal structure that forces a certain morality code on the masses but gives turns a blind eye to the morality code of the elite.
Even in the fledgling American republic the elite practiced a moral code, although usually in private, that preachers would likely have condemned from the pulpit. Importantly, these men believed that their behaviors were within their “unalienable rights” in a free society. Whether you approve or not, let me suggest that these “messy rights,” too, accrue to the non-elite in that same free society, otherwise you have no rights “of the people.”
We do have a pretty good handle, it turns out, on the “unalienable and unenumerated rights” that Alexander Hamilton and James Madison, two of the principal authors, along with Thomas Jefferson and the rest of the Founders, asserted simply by living their aristocratic lives. Now, clearly these men did not believe that any woman held the same rights as they did. And certainly, no enslaved Black Americans or “First Nation” Americans held those rights. Indeed, they also believed that non-land-owning white men had fewer rights than they did.
Let me be so bold as to enumerate a few of the unenumerated rights that I believe these men asserted in their daily lives as new American citizens, as put forward by the best historians:
- The unfettered right to vote. As land-owning white men, you can be assured that any attempt to limit the manner of their voting in elections would have been met with outrage. Indeed, this is one asserted right that fed their violent revolution against King George. Note that you will not find an enumerated, unambiguous, unfettered right to vote in the Constitution or its Amendments. But they believed that they had it. The 15th and the 19th Amendment simply say that freed slaves and women can’t be denied the vote, but only to the extent that white men hold the privilege.
- Freedom from the dominant religion of their colony/state. The myth that these guys were all fundamentalist Christians persist to this day.
- The right to contract for commerce, food, and property, plus the right to hold title to that property (including other human beings as slaves).
- The right to choose their spouses, but also any other sexual partners. Historians have also documented the existence of same-sex relationships among the early American aristocracy, as there has been through all of history. This is one of those unenumerated political rights that religious people are often uncomfortable acknowledging. Occasionally these relationships have turned into political scandal, but usually they have not. And the Sally Hemmings’ of today should have the unfettered right to choose their own sexual partners (or not) as well.
- The right to full citizenship even if not born in the thirteen colonies or born out outside of the aristocracy. Alexander Hamilton, for instance, was born on the Caribbean island of Nevis and born “out of wedlock”. While this assumption has become contentious, even the current aristocracy claim their own circumstances merit exemption from border exclusions (cough, cough, Ted Cruz).
- The basic right over their own bodies and their personal pursuit of health. While these men did not have to personally deal with pregnancy, Jefferson kept his own out-of-wedlock children in slavery throughout his life, and so it is difficult to assume that he placed any higher rights on an unborn fetus. And abortion was not illegal in the British colonies up to the time of “quickening.” Even when abortion was illegal in the United States, America’s elite lived under a more permissive code.
You can likely think of others; America’s early elite were often well educated in the classics and likely spent more time talking ancient Greek democracy (also with a separate “elite” class) than our current Congress ever did over their complete lifetimes.
The 14th Amendment to the Constitution states that “All persons born or naturalized in the United States…are citizens of the United States and of the State wherein they reside.” That takes care (officially but not practically) of my assertion that the Jefferson/Hamilton/Madison unenumerated rights should automatically accrue to minority populations of citizens in the U.S. And although we never did get the Equal Rights Amendment written into the Constitution, it is increasingly difficult to find jurisprudence that explicitly says that a women citizen has fewer rights than a male citizen. Perhaps Senator Cornyn would like to stand on the Senate floor and assert for the record that women have fewer constitutional rights, enumerated or unenumerated, than he does, but I think not.
There is also absolutely no biological basis, or Constitutional basis, for declaring that an LGBTQ+ person is any less a citizen, and thus that person also has all the unenumerated rights (again except that slavery thing) that Jefferson, Hamilton, Madison, and Senator John Cornyn, asserted or assert in their daily lives as Americans.
And so, just assume that, except where later specifically constrained, you have the same unenumerated and unalienable rights as that founding elite believed they possessed. Gosh, that seems to make jurisprudence and legislation much easier.
So, why don’t we have that clarity in the courts? The simple answer is that the Federalist Society, an organization that deifies the founding aristocracy of America as near-demigods and renders their words inerrant, includes six of the current nine Justices as current or past members. Those justices, and another 70,000 lawyers and judges who are society members, refuse to make this simple statement:
Every American citizen has the same unenumerated and unalienable rights that those deified Founders assumed for themselves personally when they wrote the words (except for that embarrassing slavery thing).