“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” – Ninth Amendment
During the ratification of the Constitution, critics worried about how their rights would be preserved in the context of a new, much stronger federal government. In response, supporters suggested a Bill of Rights, added to the new constitution. Among these was the Ninth Amendment, declaring clearly the existence of un-enumerated (rights beyond those listed).
They did not do this because they couldn’t be bothered to list all the rights. They did so because they knew – having recently undergone a military revolution for independence from Britain and now a constitutional revolution abolishing the Articles of Confederation – that new liberties, equally precious to the people, would be ‘discovered’ in the future.
Most conservative responses to the Supreme Court’s ruling in Obergefell v. Hodges completely ignored this principle, including (sadly) the dissents written by justices themselves. Justice Scalia’s decried the ability of a ‘bare majority’ of justices to ‘invent’ new rights. Chief Justice Roberts closed this dissent this way:
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
But this just doesn’t square with the Ninth Amendment. If the Constitution explicitly recognizes un-enumerated rights, then simply pointing to the text and saying “It doesn’t say that” isn’t an argument. It’s a tantrum. And it’s beneath the dignity of otherwise intelligent jurists.
This doesn’t mean that we have to automatically embrace every purported-right that our fellow citizens (or even our distinguished jurists) claim. But it means we have to come up with real arguments about why this or that liberty is beyond the bounds. In this case, the inability of even four members of the Supreme Court to come up with a legitimate argument against a broad marriage right proved the supporters’ point. Ultimately, there wasn’t a legally sound argument against the new liberty. And so, just as the Framers envisioned, it joined within the constitutional framework and became a new fundamental right.