One of the first things I notice about Justice Alito’s option in Dobbs v Jackson was it was very careful about all of the texts in the Constitution it thought would apply or be affected by the decision. Except one. The IX Amendment (see above). Years ago when I first started to really started to study the Constitution one of my Professors called the IXth the forgotten amendment. We spent quite some time on just why it was forgotten and why it is so important.
Take a moment to look at it carefully. Now think about just what it is saying. It is just one sentence but it says something very important to all of us. In more modern language it says that the enumeration of specific rights, does not mean and should not be taken to mean, that the people do not still retain those rights. What Justice Alito’s ignoring of the Amendment seems to be implying is that the Federal Courts, and the Supreme Court in particular, has no role in protecting these unenumerated rights.
This idea is just one of many issues I have with both the ”Originalist” and/or ”Textualist” doctrines on interpreting the Constitution. I will not go into all of my issues with these two doctrines for they are legion. In stead I will concentrate on just one issue bought to light here. This is the idea that Enumerated Rights take president over unEnumerated rights to the extent that the IX Amendment is meaningless.
Before I start I’d like to point out one fundamental principle I have in reading the Constitution. There is nothing in it just for ”show”. Every word, every phrase, everything is there for a reason and therefor can not be ignored. Too many modern scholars of the Constitution seem to be unaware of this principle. They read the Constitution like “ Elmer Gantry“ read scripture. Quote what supports your view and ignore what contradicts you. We have seen this before in the “Great 2nd Amendment Debate” where the entire first clause is totally ignored. The same thing is being done with the IX Amendment, except it is the entire text being relegated to the trash bin.
What is truly fascinating about Dobbs is that in many many cases it takes head on the many of the clauses they wish to overturn in the reasoning of Roe vs Wade. Justice Alito does this in with the 15th Amendment. He does not with the IX. I think this is because, like himself, Roe vs Wade also ignores the IX. It also could be that he thought that the IX Amendment had no bearing on the case before the Court. (By the way, I accept this is a perfectly acceptable thing to do.) This seems to be stretching things just a might as Dobb’s deals with rights not enumerated in the Constitution (ie Privacy) and the IX Amendment is all about unenumerated rights.
In closing all we can really say is the Dobbs totally ignores the IX Amendment and we don’t know why.
