73 Civil Liberties: How are the Bill of Rights interpreted? (61/36) -- United States Government

73 Civil Liberties: How are the Bill of Rights interpreted? Learning Objectives - Describe how the Ninth and Tenth Amendments reflect on our other rights - Identify the two senses of “right to privacy” embodied in the Constitution - Explain the controversy over privacy when applied to abortion and same-sex relationships As this chapter has suggested, the provisions of the Bill of Rights have been interpreted and reinterpreted repeatedly over the past two centuries. In this section, we consider the final two amendments of the Bill of Rights and the way they affect our understanding of the Constitution as a whole. Rather than protecting specific rights and liberties, the Ninth and Tenth Amendments indicate how to interpret the Constitution and the Bill of Rights, and lay out the residual powers of the state governments. We also examine privacy rights, an area the Bill of Rights does not address directly; instead, the emergence of defined privacy rights demonstrates how the Ninth and Tenth Amendments have been applied to expand the scope of rights protected by the Constitution. The Ninth Amendment We noted previously that James Madison and other framers were aware they might endanger some rights if they listed some in the Constitution and omitted others. To ensure that constitutional interpreters would recognize that the listing of freedoms and rights in the Bill of Rights was not exhaustive, the Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” These rights “retained by the people” include the common-law and natural rights inherited from the laws, traditions, and past court decisions of England. To this day, we regularly exercise and take for granted rights that are not written down, like the right to marry, the right to seek opportunities for employment and education, and the right to have children and raise a family. Supreme Court justices over the years have interpreted the Ninth Amendment differently; some have argued it was intended to extend the rights protected by the Constitution to those natural and common-law rights, while others have argued it does not prohibit states from changing their constitutions and laws to modify or limit those rights as they see fit. Critics of a broad interpretation assert the Constitution provides ways to protect newly formalized rights through the amendment process. For example, in the nineteenth and twentieth centuries the right to vote was gradually expanded by constitutional amendments (the Fifteenth and Nineteenth) even though publicly controversial. However, supporters of a broad interpretation assert the rights of the people—particularly of political or demographic minorities—should not be subject to the whims of popular majorities. A general right to privacy is one the courts have said may be at least partially based on the Ninth Amendment. The Tenth Amendment The Tenth Amendment states: “The power