During our spring break, the U.S. Supreme Court heard Perry v. Hollinger and Windsor v. United States, two cases on the constitutionality of gay marriage bans. The court will release its decisions on both cases before the session ends in June. Both cases focus on the equal protection clause in the 14th Amendment.

While gay marriage certainly is an equal protection issue, the case should have been argued on different grounds. The right to marry the person you love is protected by the Ninth Amendment.

Because the rights of man cannot be listed, nor can the evolution of the rights of man be foreseen, the purpose of the Ninth Amendment is to preserve rights that are not listed in the Constitution. Going forward into a new era of human knowledge and capabilities, unenumerated rights must be recognized in order to protect people from infringement on those rights. The court should broaden its interpretation of the Ninth Amendment to protect the people.

When the founders wrote the Constitution, they debated at length over whether or not they should have added the Bill of Rights. Many feared that if the rights of the people were formally listed, then the government could later take the position that the rights listed as the only rights the people had.

As a compromise, James Madison drafted the Ninth Amendment, which read, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Without the addition of the Ninth Amendment, ratification of the Bill of Rights may have never happened. The Ninth Amendment is the most important and underused amendment in the Constitution because it is the sole protector of the rights not listed in the Constitution.
Today, the Supreme Court has a rather narrow opinion of the Ninth Amendment.

The right to a living wage, an education and privacy, the right to make certain decisions about one’s body and the right to adequate medical treatment are not listed in the Constitution. This does not mean that these rights do not exist. The government has implemented some forms of protection for these rights through sub-constitutional law.

President Barack Obama’s health care reform fundamentally establishes the right to adequate medical treatment for all Americans. No Child Left Behind may have weakened education in practice, but it extended the idea that every American has the right to an education. Minimum wage attempted to establish the right of the people to earn a living wage, but nothing puts this in cement unless we recognize it as an unenumerated constitutional right.

We need to establish a fundamental ideal that the people are entitled to rights such as these. Our society has established rights such as these over the years, but without formal recognition, they are not safe.
Gay marriage is a 14th Amendment case, but it also could have been argued as a Ninth Amendment case. When the government says you cannot marry (at least in a legal sense) who you want to marry, this is an infringement on your unenumerated rights. The government simply has no right to tell you who you can and cannot marry.

Ron Paul is wrong about many things, but his political philosophy is correct in its emphasis on individual freedoms and liberties. There are certain ways in which the government should not interfere with our lives. Our society recognizes unenumerated rights and our government has been forced to put protections on some of these rights. Our society will benefit from the expansion of the rights of the individual in a constitutional sense because it will make clearer the injustices in our society.

For example, because waiters and waitresses are allowed to make as little as $2.33 per hour because they earn tips, as opposed to the normal minimum wage of $7.25, their right to earn a living wage is called into question in some cases. If, for instance, the restaurant has a slow week or two, the wages of waiters and waitresses can fluctuate dramatically – this can be very dangerous to their well-being and it can hinder their ability to pay rent and eat healthily. If they can’t quit because they need some source of immediate income, they are, in a sense, trapped.

The authors of the Declaration of Independence, the document on which this nation is founded, considered it self-evident that people are entitled to “certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Central to the pursuit of happiness are rights such as those mentioned earlier in this article. Surely the right to pursue happiness, within reason, must be recognized so long as it does not infringe on the rights of others.

Had these gay marriage cases been argued on the basis of the Ninth Amendment, they would have represented an effort to assure that the rights reserved for the people were truly reserved for the people. The Supreme Court should broaden its interpretation of the Ninth Amendment to prevent an invasion on those rights that are not formally listed in the Constitution.
Spencer Lindsay ([email protected]) is a sophomore majoring in political science.