April 9, 2010
Can the Government Force You to Buy a Condom?By Bruce Hanson
Vice President Joe Biden may have exposed an unconstitutional flaw in the health care bill when he said under his breath to President Obama, "This is a big fu%*#g deal." Biden's naughty comment provided late-night TV hosts with an unlimited number of comic implications pertaining to the public "getting screwed." Nonetheless, an argument can be made that the Supreme Court has already decided that the health care bill is unconstitutional. Please let me explain.
First some background on the Ninth Amendment of the United States Constitution.
The Ninth Amendment provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Thus, a right is worthy of judicial protection even if it is not listed in the Constitution. To fail to protect these "other" unenumerated rights "retained by the people" in the same manner that we protect enumerated rights would surely be to "disparage" them, if not to "deny" their existence altogether.
We must remember that the framers believed in natural rights -- the idea that people by their nature have certain basic rights that precede the establishment of any government.
Representative Roger Sherman wrote in his proposed draft of a bill of rights that "[t]he people have certain natural rights which are retained by them when they enter into society."
According to John Locke, the English natural rights theorist who greatly influenced the founders' generation, the principal justification for founding a government is to make these rights more secure than they would be in a state of nature -- that is, in a society without any government.
In this view, natural rights define a bounded domain of liberty for each person, wherein one may do as one pleases. Exactly how this liberty may be exercised is limited only by one's imagination, so it is impossible to enumerate specifically all of one's natural rights.
This is the reason for the Ninth Amendment. The framers felt it impossible to enumerate all the rights of men. Consequently, they enumerated only what they felt was most important, that being the other nine amendments in the Bill of Rights.
Would the Supreme Court allow Congress to establish a law that says it's against the law to stand in the rain without an umbrella? Or ride a fast horse? Or climb a steep mountain?
How about participate in sex with or without a condom?
To repeat, "Natural rights define a bounded domain of liberty for each person wherein one may do as one pleases."
On occasion, laws have been enacted that limit natural rights. The U.S. Supreme Court protected the right to use birth control in Griswold v. Connecticut. The court ruled on a dispute dealing with an 1879 Connecticut statute that made it a crime for any person to use any drug, article, or instrument to prevent conception. Griswold exemplifies an unenumerated right. The court concluded that as such activities are within the sphere of bounded liberty retained by the people, they are beyond the rightful power of government. An analysis of retained rights could also constrain the "means" by which governmental ends can be achieved.
Can Congress "deny" the existence of an unenumerated right altogether?
In 1986, the Supreme Court ruled in the sodomy case Bowers v. Hardwick that an unenumerated liberty was to be deemed fundamental only if shown to be deeply rooted in the tradition or history of the nation or implicit in the concept of ordered liberty. Americans have been exercising their liberty to choose to buy health insurance or not since virtually the signing of the Constitution.
To interpret the Ninth Amendment, the Supreme Court looks to see if the federal government has the power it claims. An argument can be made that a condom is protection -- an insurance policy, if you will. Can our government force you to buy or not buy a condom? No, the Supreme Court concluded that such activities are within the sphere of bounded liberty retained by the people. Similarly, can our government force you to buy or not buy an insurance policy? Can our government force Americans to buy condoms, every year, for the rest of their lives, whether they use them or not? Up until March 21, 2010, they could not.
Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004)
Calvin R. Massey, Silent Rights: The Ninth Amendment and the Constitution's Unenumerated Rights (1995)