Study Notes on Interpreting the Bill of Rights

LEARNING OBJECTIVES

By the end of this section, you will be able to:

  • Describe how the Ninth and Tenth Amendments reflect on our other rights
  • Identify the two senses of the "right to privacy" embodied in the Constitution
  • Explain the controversy over privacy when applied to abortion and same-sex relationships

INTERPRETING THE BILL OF RIGHTS

  • The Bill of Rights has been subject to interpretation and reinterpretation over two centuries.
  • The first eight amendments do not clearly define the status of traditional common law, which relates to the legal basis for many rights claimed by the framers in the Declaration of Independence.
  • The worldview reflected in these amendments aligns with the late eighteenth century, while contemporary challenges driven by new technology, societal norms, and economic realities complicate its application.
  • This section focuses on the final two amendments and their impact on constitutional interpretation and the residual powers of state governments.
  • Privacy rights, though not explicitly mentioned in the Bill of Rights, are a significant area of interpretation and expansion through the Ninth and Tenth Amendments.

THE NINTH AMENDMENT

  • James Madison and the framers aimed to avoid limiting rights by listing some while omitting others.

  • Ninth Amendment Text: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

  • This amendment recognizes rights retained by the people, including common-law and natural rights inherited from English traditions and legal precedents.

  • Rights not formally included in the federal Constitution that are regularly exercised include:

    • Right to marry
    • Right to seek employment and educational opportunities
    • Right to have children and raise a family

  • Interpretations of the Ninth Amendment:

    • Some justices interpret it as extending protections to natural and common-law rights.
    • Others argue it does not restrict state changes to their constitutions or laws.

  • Critics of broad interpretations point out that new rights may be formally protected through the amendment process, citing expansions of voting rights in the 19th and 20th centuries (e.g., the Fifteenth and Nineteenth Amendments).

  • Advocates for a broader interpretation argue that minority rights should not be subjected to majority whims, referencing the courts' acknowledgment of a general right to privacy derived, in part, from the Ninth Amendment.

THE TENTH AMENDMENT

  • Tenth Amendment Text: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

  • This amendment emphasizes power allocation rather than the protection of rights, reaffirming the retention of unassigned powers by states or the people.

  • Courts usually view it as conveying a general principle rather than imposing significant limitations on federal power.

  • Historical context poses a significant question about state sovereignty versus federal authority.

  • Some politicians argue for the Tenth Amendment's authority to nullify federal laws deemed unconstitutional, though courts typically reject these claims unless federal mandates directly interfere with state operations.

  • Case Examples Relating to Tenth Amendment:

    • In 1997, the Supreme Court struck down a law requiring state participation in federal background checks for gun purchases.
    • In 2012, another ruling confirmed states cannot be compelled to expand Medicaid by threatening to withdraw existing funding.

  • The Tenth Amendment allows states to enhance rights and liberties beyond federal provisions.

  • Examples of state-specific protections include:

    • Right to free public education guaranteed by some state constitutions.
    • Specific rights afforded to crime victims.
    • Some states recognize the right to hunt and fish.
    • Certain state constitutions ensure equal rights for men and women.

  • Historical instances of state-level voting rights include women voting in Wyoming before the Nineteenth Amendment and younger voters in some states before the Twenty-Sixth Amendment.

  • State courts may interpret constitutions to provide broader liberties than those federally recognized.

    • Example: California's extension of free speech protection to privately owned shopping centers

  • Federal laws can overshadow state protections:

    • Federal laws can limit rights guaranteed by state constitutions (e.g., federal prohibition on hunting).
    • Federal regulations relating to weapons and drugs can negate state allowances.

GET CONNECTED!

  • Student-led initiatives for constitutional change include proposals made in Texas in 1998, where students attempted to draft a new state constitution.
  • Each state has procedures for amending its constitution, which can vary significantly.

THE RIGHT TO PRIVACY

  • The term "privacy" does not appear in the Constitution, but scholars suggest provisions indicate a desire to protect privacy understood as freedom from governmental intrusion into personal realms, particularly at home.

    • Interpreted through:
    • Second Amendment: Right to self-defense in the home.
    • Third Amendment: Government soldiers can't reside in homes without consent.
    • Fourth Amendment: Sets high legal standards for state intrusions.
    • Fifth Amendment: Due process rights protecting home and property ownership.

  • The Ninth Amendment implies existence of a common-law right to privacy among other unenumerated rights.

  • Historical Context:

    • The notion of privacy rights was notably articulated by Samuel D. Warren and Louis Brandeis in a law review article in 1890.

  • Explicit recognition of the right to privacy in U.S. law began mid-20th century:

    • In 1965, the Supreme Court recognized privacy rights in Griswold v. Connecticut, striking down laws prohibiting contraceptive use.

SEXUAL PRIVACY

  • The right to privacy applied to contraception was expanded in 1972 to include unmarried individuals.

  • Privacy concerning abortion is legally and politically controversial:

    • In 1972, only four states permitted unrestricted abortions; Pennsylvania and other states imposed severe restrictions.
    • Legal changes followed Roe v. Wade in 1973, establishing a right to abortion under privacy rights.
    • The ruling recognized government interest vs. women's health and rights, balanced against fetal viability and pregnancy stages.

  • Roe v. Wade Framework:

    • No restrictions on first-trimester abortions; abortion safer than childbirth.

  • Post-Roe Developments:

    • Trimester framework was modified in Planned Parenthood v. Casey (1992) to an "undue burden" test.
    • States can impose regulations not deemed significant obstacles to abortion access.
    • Some restrictions upheld (e.g., waiting periods, parental consent laws).
    • Notably, the 2003 Lawrence v. Texas ruling invalidated laws criminalizing consensual same-sex sexual conduct.
    • Subsequent legal interpretations still allow some regulation of sexual morality.

PRIVACY OF COMMUNICATIONS AND PROPERTY

  • Increasing surveillance technology raises privacy concerns:

    • Monitoring becomes easier through vehicle tracking and GPS, impacting law-abiding citizens.
    • Privacy of personal communications is threatened by technological capabilities, such as smartphone tracking and remote microphone activation.

  • Privacy Legislation Concerns:

    • The USA PATRIOT Act has raised questions about its implications for civil liberties and extent of surveillance overreach.
    • Various groups advocate for privacy rights, trying to limit government surveillance.

  • Technological Surveillance Benefits and Risks:

    • These tools can improve public safety and convenience (e.g., reduced traffic through monitoring).
    • However, history indicates risks such technologies could enable oppressive regimes.

  • Recent developments (e.g., Carpenter v. United States, 2018) indicated a need for search warrants for accessing phone location data, illustrating shifting privacy rights.