Liberty for All

As South Dakota debates an abortion ballot initiative, the question remains: Does the Constitution protect unenumerated rights?


Last week, South Dakota election supervisor Kea Warne announced that state voters will have the opportunity this November to accept or reject one of the nation's strictest anti-abortion statutes, a proposed law that would completely ban the practice except for narrowly defined cases of rape, incest, or the health of the mother. Sponsored by the group VoteYesForLife.com, which gathered well above the 16,776 signatures necessary for inclusion on the fall ballot, Initiated Measure 11, as the proposal is known, puts the question of abortion rights directly in the hands of state voters. If they vote yes, doctors who perform illegal abortions will face up to 10 years in prison and up to $10,000 in fines. But should it matter what the voters think?

Look at it like this. The United States Constitution guarantees a number of specific individual rights, including free speech and the right to keep and bear arms. But what about those rights that aren't listed? Do we have the right to drink apple juice? How about the right to grow a mustache? More crucially, what about the right to be left alone? The Constitution mentions none of them. So if a majority of voters agree that we don't possess these (or countless other) rights, what's to stop the government from restricting our liberty?

The answer for many conservatives, and some libertarians, is nothing. Take Rep. Ron Paul (R-Texas). An outspoken foe of abortion, Paul favors turning the issue over to the states, where local preferences would trump a one-size-fits-all federal policy. Even pro-choice libertarians might like the sound of that. But consider the full ramifications of Paul's majoritarian position. Responding to the Court's disastrous decision in Kelo v. City of New London (2005), which allowed the pharmaceutical company Pfizer to acquire private property seized via eminent domain under an "economic revitalization" plan, Paul argued that the Supreme Court should have simply refused to hear the case. "The issue," he maintained, "is the legality of the eminent domain action under Connecticut law, not federal law….The fight against local eminent domain actions must take place at the local level."

While Paul is certainly right that eminent domain abuse must be aggressively fought on the local level, he's wrong that we should skip the federal fight. As the Fourteenth Amendment declares: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." Yet in Paul's mistaken opinion, this potentially libertarian amendment has no impact on the actions of state or local governments. Legal historians, however, have long agreed that the Fourteenth Amendment was originally meant to apply the Bill of Rights (and other natural rights) to the states.

Similarly, conservative former federal appeals court judge Robert H. Bork has attacked the Supreme Court for "inventing" rights and "usurp[ing] the powers of the people and their elected representatives." Bork is referring to two cases here. First, in Griswold v. Connecticut (1965), the Court struck down that state's ban on contraceptives, holding that the law violated the "zones of privacy" created by the Constitution's "various guarantees." Second, in Roe v. Wade (1973), the Court recognized the right to an abortion within the privacy rights guaranteed by Griswold.

For Bork, the absence of the word privacy in the Constitution means that the document does not protect it. But what about the Ninth Amendment, which states: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." In other words, the Constitution itself recognizes that we possess far more rights than any document could ever list, a situation that the legal scholar Stephen Macedo has likened to islands of government power "surrounded by a sea of individual rights." If Bork had his way, we'd all be drowning in a sea of government power.

Which brings us back to the voters of South Dakota. There's nothing inherently noble about a majority of people agreeing on a particular issue. Indeed, bad ideas often prove more popular than good ones. It's only when popular majorities are anchored to the idea of inalienable rights that they're most entitled to our respect. Without that underlying commitment to individualism, majority rule can and frequently will degenerate into the loss of liberty for unpopular minorities. The racist policies of the Jim Crow South, after all, were often extremely popular among white voters.

So before we get too misty over the will of the people of South Dakota, let's remember that James Madison warned us about the tyranny of the majority, not the tyranny of unfettered individual liberty.

Damon W. Root is a reason associate editor.