The Rights You Don't Know You Have

If there's one thing that probably confuses every member of the adult entertainment community from company owners to performers to secretaries to warehouse personnel, it's the question of, since adult content is produced only by willing adults for sale to and viewing by other willing adults, why are there laws that make certain types of sexually explicit content illegal?

After all, we've all read the First Amendment, which states, in pertinent part, that "Congress shall make no law... abridging freedom of speech, or of the press," and nowhere in that amendment or anywhere else in the Constitution does it exempt sexual speech from that unqualified right. Therefore, wouldn't the Supreme Court have had to violate the First Amendment in order to make "obscene" speech illegal?

The answer, of course, is yes—but that's not the entire answer.

See, the First Amendment isn't the only amendment that protects sexual speech. There's also the Ninth Amendment, which reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Think about that for a moment. What it says is that although some rights are specifically mentioned in the Constitution—for example, the right not to be searched without a warrant; the right not to be forced to allow soldiers to live in your home; the right not to have the government set up its own religion—in fact, Americans have many, many more rights that are not spelled out—"enumerated"—but which the government cannot deny or belittle—"disparage"—just because they aren't spelled out specifically.

During the debates about the Constitution back in the late 1780s, this was considered a major issue, since many supporters of constitutional government felt that the Constitution itself was so complete that any rights citizens might worry about losing under the new federal government were protected, because at the time, the Constitution was viewed as both a grant of some powers to the feds, but more importantly, a restriction on Congress's actions in other areas, most notably civil liberties.

But smarter (or at least more worried) heads prevailed, and a "Bill of Rights" was added to the Constitution even as the document was sent to the states for ratification—and the same argument was voiced, that even the Bill of Rights didn't sufficiently protect many citizens' activities from federal encroachment.

"If we attempt an enumeration, every thing that is not enumerated is presumed to be given [away]," said constitutional convention delegate James Wilson. "The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete."

It was for that very reason that James Madison proposed adding the Ninth Amendment to the Bill of Rights: To deal with that "imperfect enumeration" by granting to the people all rights which were not specifically denied to them by the document.

However, almost from the get-go, both the Congress of the United States and its entire court system have ignored the Ninth Amendment, since one effect of recognizing it would be to diminish the power that legislators and the courts have over the ordinary citizen. Think gay people don't have the right to marry? They already do, if the government were following the dictates of the Ninth Amendment. Think recreational drug use is illegal? Not under the Ninth Amendment. Think prostitution is a valid crime? The Ninth Amendment disagrees. Think a woman can't get an abortion unless she jumps through the variety of hoops various state legislatures have laid out for her? The Ninth Amendment says, "Fuck that!" Its response would be the same if the issue were national healthcare, effective public schools or assisted suicide—or any of the hundreds of other legal restrictions on consensual human activities that harm no one except perhaps the participants.

So perhaps what's needed is a book that sets out what the Ninth Amendment is, where it came from, how it came to be included in the Constitution, and what it means for 21st century Americans.

Guess what? There is one: Daniel A. Farber's Retained By The People.

"Liberals (for lack of a better term) have as yet to directly embrace the Ninth," wrote Farber in the opening chapter of this seminal work. "They argue the case for rights on the basis of clauses like Due Process or give up on fundamental rights in favor of arguments based on discrimination law. I believe that's because they find the Ninth too elusive. Buried as it is in eighteenth-century ideas, in debates among the Founders as they wrote the Constitution, and in James Madison's oratory before Congress, the Ninth seems shadowy, a battle that cannot be won... It is conservatives who should fear and deny the Ninth—and many do, especially the so-called movement conservatives who make up the 'base.' ... The Ninth challenges both what they believe about the Constitution and what they publicly offer as their rationale for imposing their morality on others."

And what better example of that is there than "originalist" Justice Antonin Scalia, who stated in his dissenting opinion in the case of Troxel v. Granville (2000) that, "the Constitution’s refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people." In other words, just because the Ninth says the government can't deny unenumerated rights doesn't mean citizens actually have or can have those rights!

However, even Scalia admitted, in a lecture given just this past April at USC's Gould School of Law, that "If you find what the original meaning of the Constitution is, I am handcuffed; I cannot do the nasty conservative things I would like to do to the people." He even gave examples of things he doesn't think the Constitution speaks to—"abortion, the death penalty, homosexual sodomy"—but a quick look at the Ninth Amendment would prove him wrong.

Farber has the more correct historical take on that issue.

"The Framers picked their words carefully and understood just what they were doing," he wrote. "They meant the Bill of Rights to be illustrative, not complete: the Ninth adds a crucial 'etc.' to the bill. This 'etc.' represents the liberties the Framers viewed as fundamental—rights that were part of their political and ethical vision, what they had fought a revolution to honor."

"Some conservatives acknowledge that the Ninth Amendment, like the Declaration of Independence, refers to innate human rights," he continued. "But they contend that these unenumerated rights lack any legal weight and were merely entrusted to the political process. This theory conveniently allows these conservatives to pretend belief in innate rights without ever having to do anything about them."

Farber cites several examples of how the Ninth Amendment has figured into American history, and in particular, the history of the Republican Party. It's well known that the first Republican president, Abraham Lincoln, favored abolishing slavery, and Farber argues that Lincoln, in so doing, was displaying his belief in "natural law"—exactly the sort of thing the Ninth Amendment would protect. The early Republicans' belief in natural law and the Ninth Amendment, according to Farber, led to their proposing further constitutional amendments that abolished slavery (Thirteenth), forced states to be bound by the rights and protections of the federal Constitution (Fourteenth) and gave non-whites the right to vote (Fifteenth).

Over the years, the Supremes have used the Ninth Amendment to take such actions as prohibiting courts from forcing convicted criminal to be sterilized, but rather than referencing the Ninth itself, the high court gradually folded the unenumerated rights granted by the Ninth into its conception of "substantive due process" as set forth in the Fourteenth Amendment.

Farber quotes Justice John Harlan as opining that the "full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution." Moreover, Harlan believed that constitutional liberty is "a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints"—a viewpoint that would invalidate many current laws that seek to punish citizens for indulging in personal pleasures that harm no one.

Justice Harlan's viewpoint still informs many contemporary court decisions, including Roe v. Wade (abortion) and Griswold v. Connecticut (access to contraception). AVN readers will recall that the Supreme Court invoked the Fourteenth Amendment in overturning laws against consensual sodomy in Lawrence v. Texas—though it could have found such rights much more easily in the Ninth, if the high court by then hadn't scared itself into ignoring that amendment.

But even Farber takes a step back from his own thesis in a couple of areas. For instance, he doesn't think assisted suicide is an unenumerated right under the Ninth, and also warns, "I also want to be clear that my argument for resurrecting the Ninth Amendment is emphatically not a plea for judicial activism. The biggest concern about judicial enforcement of unenumerated rights is that they can be abused by judges who simply want to pursue their own political agenda. Whether we are talking about enumerated rights like the First Amendment or the unenumerated rights of the Ninth, judicial impartiality, common sense, and humility are invaluable."

That warning notwithstanding, Farber points out that the Ninth Amendment inevitably runs up against people's prejudices and traditions. Segregation was very popular in the South and various areas of the North before it was overturned by the 1964 Civil Rights Act, which could be viewed as a congressional application of the Ninth Amendment to freedom for all humans, not just white ones. As Farber points out, the Ninth has provided good support to politicians who want to do the right thing even in the face of opposition from their own constituencies.

Farber's book goes into long discussions about the Ninth's application to Roe, to a person's right to die in Cruzan v. Director, to gay rights, not just in Lawrence but the antidiscrimination ruling in Romer v. Evans, to the right to a decent education in San Antonio Independent School District v. Rodriguez, and Farber thinks the Ninth may yet come into play in the current debate over one's right to keep personal information private.

All in all, Retained By The People is an excellent primer for sex-positive activists who chafe at the many governmental restrictions on their rights to express themselves, to be open about their sexuality and use that openness commercially, and to be able to create sexual art forms that conservative religionists would surely find repulsive. All of those scenarios and more are simply examples of the rights most people don't know they have—but which, in the current climate, they'll have to fight tooth and nail to gain or retain. But at least they'll know that the Constitution backs them up.