Monday, July 10, 2006


Recently I've spent time reading the full text of several Supreme Court cases. It's a fascinating exercise in logic and rhetoric. In the past, I've known only the vaguest generalities about these cases. I sensed that Griswold v. Connecticut was somehow related to "privacy," but I had little clue about what actual legal reasoning supported it.

Now I'm more aware. And wading through the mass of opinions, I'm alternately impressed and dismayed by the Court's logic. Overall, Griswold v. Connecticut rates on the "impressive" side—but check out these apparently contradictory statements from Justice Goldberg in his concurring opinion:

"I do not take the position of my Brother BLACK in his dissent in Adamson v. California, 332 U.S. 46, 68 , that the entire Bill of Rights is incorporated in the Fourteenth Amendment, and I do not mean to imply that the Ninth Amendment is applied against the States by the Fourteenth."

"Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in a case dealing with a State's infringement of a fundamental right. While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement."

My sense is that Goldberg doesn't think that his statements contradict each other, as the latter doesn't explicitly state that the Fourteenth Amendment applies the Ninth Amendment to the states.

But if you think about it, that's essentially what his argument does. It is at root a simple syllogism:

1) The Ninth Amendment, simply by existing, implies the existence of certain inalienable personal liberties not specifically enumerated in the first eight amendments.

2) The Fourteenth Amendment extends the protection of fundamental personal liberties to include protection from state intrusion upon them.

And thus the conclusion:

3) Individuals are protected from state encroachment upon fundamental but unstated rights like the right to privacy in marriage.

Isn't this basically applying the Ninth Amendment to the states? If not, what would be? And why is Goldberg tying himself in rhetorical knots?

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