“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.”[1] One of the most well-known phrases in American history. This statement is an affirmance that the founding fathers believed all men were vested with natural rights that the state was prohibited from taking without the consent of the people. The existence of rights, absent their codification into law is put forth in the Ninth Amendment. It reads that there are an indefinite number of rights protected but not enumerated by the Constitution. It acknowledges a plethora of rights natural to man, so many so that the drafters of the Constitution could not list them all. They knew that there would arise occasions at which a right would be contested, and without the protection of the Ninth Amendment, it may be eradicated. Yet, the Supreme Court has resisted placing substantive due process rights in the Ninth Amendment, in actuality, the Court has resisted using the Ninth Amendment in any real manner. In such chaotic times as these, the Court should consider the proper application of the Ninth Amendment, however, in doing so it ought to stay as far as possible from the chaos of natural law.
Natural Law vs. Natural Rights
There are two forms of natural, inherent, existence principles that are commonly discussed. Natural law, as Saint Thomas Aquinas believed, is the participation of mankind in eternal law.[2] In contrast, is natural rights, the idea that there are certain rights of existence that are inherent in mankind.[3]
The concept of natural rights, as opposed to natural law, is well imbued in the United States Constitution. The Bill of Rights being the most ardent example of the codification of natural rights. The right to worship as one sees fit, the right to bear arms, the right to due process of law, these are all rights that are recognized by the Constitution as a codification of those specific natural rights. The most obvious acknowledgment of, and protection thereof, natural rights is the Ninth Amendment which reads, “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Justices across the aisle have struggled with how to apply this Amendment, furthermore it has not been incorporated against the states as many of the other rights secured in the Bill of Rights has.
Natural Rights in the Context of the Ninth Amendment
Historically, the Ninth Amendment was used most commonly to strike down laws for exceeding the state’s power to legislate.[4] The Fourteenth Amendment on the other hand has been propositioned that due process as ascribed in the Constitution, simply means that a state cannot infringe upon your rights without procedural process that is fair and equitable to all.[5] In contrast, Professor Kurt T. Lash argued that the drafters of the Fourteenth Amendment understood it to protect unspoken fundamental, inherent, natural rights.[6]
One of the most famous cases in American substantive due process and natural rights, discourse is Griswold v. Connecticut, where the United States Supreme Court held that married people had a right to purchase and use contraceptives if they so desired.[7] This case presented a slam dunk for the Court to use the Ninth Amendment, yet they shied away from holding that the right to contraceptives was found in the “penumbral rights of ‘privacy and repose.”[8] The Court looked at these overlapping zones of privacy created by the First, Third, Fourth, Fifth, and Ninth Amendments as creating a Constitutional guarantee to the right of privacy. While not explicitly relying upon the Ninth Amendment, the Court implicitly acknowledges a fundamental, imbued right to privacy. Free from the state’s ability to reach into one’s marriage. The Court struggled to articulate what exact Constitutional principle it found such right, but still it acknowledged it existed. In the last full paragraph of the majority opinion, the Court acknowledged that they were dealing with a right “older than the Bill of Rights – older than our political parties, older than our school system.”[9] They knew there was a fundamental right here implicated by their decision.
Conclusion: Natural Law has No Place in Jurisprudence
When considering the structure of our government it becomes abundantly clear that the courts should have no legitimate role in mandating or implicating natural law. The judiciary is the only branch of the government that is not directly voted in by the people. All justices of the Court are nominated by the executive, then confirmed by the Senate.[10] The congress is specially designed to respond to the will of the people, the House of Representative’s requiring elections every two years.[11] The Senate on the other hand has a 6-year term limit, and the executive has a 4-year term limit.[12] The judiciary on the other hand, has no term limit, with the only condition on their appointment that they shall have good behavior.[13] All it takes is 5 rouge or politically motivated justice who sit on the Court to alter, revoke, create, or change a right. With no accountability, the Court has limited incentives to stay apolitical.
[1] Declaration of Independence (US 1776).
[2] Murphy, Mark, The Natural Law Tradition in Ethics, The Stanford Encyclopedia of Philosophy (Summer 2019 Edition), Edward N. Zalta (ed.)
[3]John Loche. Second Treatise of Government: An Essay Concerning the True Original, Extent and End of Civil Government, (1689).
[4] Ilan Wurman, The Origins of Substantive Due Process, 87 Univ. Chic. L. R. 815, 818, (2020).
[5] Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1679 (2012).
[6] Kurt T. Lash, Enforcing the Rights of Due Process: The Original Relationship Between the Fourteenth Amendment and the 1866 Civil Rights Act, 106 Georgetown L.J. 1389, 1459-60, 1466-67 (2018).
[7] Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965).
[8] Id. at 485.
[9] Id. at 486.
[10] U.S. Const. art. II, sec. II, cl. II.
[11] Id. art. I, sec. II, cl. I.
[12] Id. art. I, sec. III, cl. 4; U.S. Const. art. II, sec. 1, cl. 1.9.
[13] U.S. Const. art. III, sec. I.
Maybe for the first Court reference, say the full “Supreme Court”?
Maybe change to substantive due process and natural rights? I am not quite clear on this sentence.