By David Fowler

Several excellent briefs were filed with the United States Supreme Court last week in Dobbs v. Jackson Women’s Health urging the Court to overturn Roe v. Wade and Planned Parenthood v. Casey, the 1992 decision that affirmed Roe‘s “central holding” that a woman has the “liberty” to have a doctor kill her unborn child prior to viability.

One brief, however, is different from all the rest and makes a groundbreaking constitutional argument worthy of our Founding Fathers and the Framers of our Constitution. It is so because it’s based on a text written by the Framers that the Court has never interpreted — the Ninth Amendment.

By relying on an actual provision of the Constitution never considered by the Court, the brief makes irrelevant the doctrine of stare decisis, the bugaboo the Court uses to stymie constitutionalists by saying simply that it will stick with what it said before. But it has never said anything about the Ninth Amendment.

No law degree is needed to understand the concept behind the Ninth Amendment, which says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

It means “enumerated rights,” like the right to due process of law, found in both the Fifth Amendment applicable to the federal government and its state law counterpart, the Fourteenth Amendment, cannot be “construed to deny or disparage” rights that are not enumerated. Those rights, the Ninth Amendment says, are still held by the people; they have not given over to the federal government for protection.

However, as the brief notes, the fundamental right to life, a part of the common law tradition carried over from England to the colonies and the States and ingrafted into the Declaration of Independence, is not enumerated anywhere.

The enumerated right to due process of law, which the Court says provides an unenumerated “liberty” to abortion, is predicated on the existence of that right and protects it, but the right itself, not being enumerated, still belongs to the people. Therefore, the brief argues the power to protect it was “reserved to the States respectively, or to the people” per the Tenth Amendment.

The brief puts it like this:

The Court’s use of substantive due process to endorse an unenumerated abortion right or “liberty” interest unknown to the common law has negated the continued enjoyment by persons, and enforcement by States, of a common law fundamental right: to life. [This] contravenes the Ninth Amendment’s injunction against construing enumerated rights “to deny or disparage other rights retained by the people.”

In other words, counsel for the 22 state policy organizations do not simply argue that the legal analysis in Roe and Casey was wrong, but that it was unconstitutional. That sounds preposterous, but it is not unprecedented.

In 1938, in a case every law student reads, Erie Railroad Co. v. Tomkins, the Court said one of its holdings from 90 years earlier was “an unconstitutional assumption of powers by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.”

For 48 years, states have asserted their own interest in protecting life, but this brief argues that the Ninth Amendment means states have a duty, if they are to have just laws, to protect the life of all natural persons, born and unborn, from being intentionally killed.

In sum, these organizations and their legal counsel believe that civil government and the Constitution exist to protect the interests of persons, not the interests of government. That is a belief worthy of our Founding Fathers.