Certain Unalienable Rights

by Robert J. Romano

March 2nd, 2004

The judicial power extends to all cases in law and equity, arising under the federal Constitution, as is stated in Article III, Section 2.  Rights are protected as a province under the law (i.e. liberty under law), and indeed, many rights are articulated specifically in the Constitution.  However, the ninth amendment to the federal Constitution also states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Under an original understanding of the Constitution, applying Article III, Sec. 2 and the ninth amendment, and through the practice of judicial review as annunciated in Marbury v. Madison in 1803, it is up to the judicial branch to determine when certain laws violate written rights, or those rights specifically enumerated in the Constitution, and also when such laws violate those unwritten rights “retained by the people.”  These rights are “endowed by their Creator”, as is stated in the Declaration of Independence, and they include, but are not limited to, “life, liberty, and the pursuit of happiness…” Just because “the pursuit of happiness” is not specifically enumerated into the Constitution, does not mean that such a right was forgotten about when the Constitution and the Bill of Rights were drafted.  The fifth amendment to the Constitution states clearly that without due process of law, life, liberty, or property cannot be deprived.
           Supreme Court justices should consider both the approaches of activism and restraint as being viable towards finding laws to be unconstitutional.  In order for a law to be found unconstitutional, and the power of the branches restricted, it must be established that either the law itself is a clear violation of the Constitution, or that certain unalienable rights are being violated by the law in question.  Just because a right is not written specifically into the Constitution, does not mean it is not protected.  With this in mind, it is important as a judge to determine if a right is basic and fundamental, and that it is protected from abridgment.  Congress has the power, according to Article I, Section 8, “[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof…” Therefore, the Supreme Court must consider what Congress has determined to be protected as basic and fundamental rights, by viewing all constitutional legislative acts with equal consideration as to the Constitution itself.  If a right is protected by an act of Congress that was passed and signed in a constitutional manner, and is itself not an unconstitutional law, then it has the full force of the law.  Therefore, it is not only the province of the Supreme Court to defend those rights enumerated under the Constitution, but also those rights protected by acts of Congress, and also those rights which are not mentioned by neither the Constitution nor by Congress, and are retained by the people.
           The ability and power of both the judicial and legislative branches to determine what those rights are is fundamental to defending those rights and in ensuring the equal protection of rights under the law.  What is less clear is by what procedure should the courts determine what all the rights retained by the people actually are.  Congress retains the power to make all laws that shall be necessary and proper for carrying into execution the foregoing powers enumerated under the Constitution.  Therefore, justices should interpret what the law specifically states about judicial review and the proper process in the courtroom for determining what additional rights are protected by the ninth amendment, since Congress also has the power to enumerate certain rights, and also since it is clear the “interpretation of the laws is the proper and peculiar province of the courts”, as was stated by Alexander Hamilton.  Such a process defined by Congress for the judicial branch would be necessary and proper, since it is up to the courts to determine the constitutionality of acts of legislation.  Therefore, it must be enumerated and defined by the law, and interpreted with an original understanding as to the intent of the law.  Congress should debate and pass laws governing the enumeration of additional rights as it takes place in the judicial branch.