SCOTUS Nominee Judge Jackson on Abortion and Natural Marriage

Apr 1, 2022 by David Fowler

SCOTUS Nominee Judge Jackson on Abortion and Natural Marriage
For the last few years, I have argued that the Ninth Amendment protects rights not enumerated in the text of Constitution and the Bill of Rights, specifically the right to life and the right of a man and woman to participate in the historical institution of marriage defined strictly in terms of man and woman. Last week, Judge Jackson backed me up. I was flabbergasted.

The Text and Substance of the Ninth Amendment

The Amendment is straightforward: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
What does this have to do with states prohibiting doctors from performing abortions?  What does this have to do with the right of a man and woman to enter into a martial relationship under the common law defined exclusively in terms of a man and woman (currently, the governor interprets “marriage” under our licensing statutes as any two people, regardless of sex)?
One will look in vain to find any language in the text of the Constitution or the Bill of Rights that says a person has a right to life or regarding the institution of marriage. But, because of the Ninth Amendment, that does not mean that there is no right to life or any right of a man and woman to marry at common law.
That is because the Ninth Amendment stands for the proposition that both may be rights if they existed at the time the Ninth Amendment was adopted. 

Moreover, the Ninth Amendment stands for the proposition that no enumerated right, such as the enumerated right to due process of law found in the Fifth and 14th Amendments, can be “construed,” i.e., interpreted, to deny or disparage those rights if they existed at the time the Ninth Amendment was adopted. An interpretation of the Due Process Clauses that denies those rights would be constitutionally wrong!
The question, then, is this: With respect to the Ninth Amendment and rights thereby retained by the people, how would a justice determine (1) whether there is a right to life and, if so, who has it and (2) whether marriage defined as male and female is a right?

How Judge Jackson Would Interpret the Ninth Amendment

Judge Jackson gave this answer when asked by U.S. Senator Mike Lee how a Justice would determine what rights were retained by the people under the Ninth Amendment: 
“The Supreme Court now very clearly has determined that in order to interpret provisions of the Constitution we look to the time of the founding, and we ascertain, based on what the original public meaning of the words of the constitution were at the time. Sometimes that yields a particular answer, other times you may have to look at practices, historically, at that time, but that is how you would go about interpreting the Ninth Amendment.”  

Application of Judge Jackson’s View to Abortion

When one looks at rights existing, historically, at the time the Ninth and 14th Amendments were adopted, one of the three fundamental rights was the “right to life.” The historical, public meaning of the word “life” was that which came from our Creator.
Moreover, at that time, historically, the public meaning of the word person, employed in the 14th Amendment’s Due Process Clause,  included “the child in the mother’s womb.” It was even noted that the unborn had numerous property rights “as if then born.” (William Blackstone, Commentaries on the Laws of England)
Roe v. Wade and its progeny “construed” the enumerated right to due process of law to deprive a person—an unborn person—of the right to life. 
Consequently, if Judge Jackson meant what she said, she must hold that the people retained and still retain the right to protect the life of all persons in their respective states.

Application of Justice Jackson’s View to Marriage

In Meister v. Moore, a post-14th Amendment decision, the U.S. Supreme Court said that a man and woman had a “common-law right” to marry, that their “right” was not “conferred” by the government.
Thus, this right is a historical one, and the Tennessee Constitution even refers to the “marital relation” between one man and one woman as a “historical institution.” 
The legislature can protect and thus help secure this right for a man and woman by voting for the Marital Contract Recording Act (MCRA). The Act does this by providing a means by which a man and woman, having previously exercised their right to marry, can make public proof of their marriage easier.  They marry by exchanging their vows, and then go to the County Clerk’s office to complete a document furnished to them which, by signing and filing, they swear they took each other as husband and wife.
Again, if Judge Jackson meant what she said, the MCRA is a proper exercise of the jurisdiction retained by the “states, respectively, or to the people” by the Tenth Amendment to protect an “unenumerated right.”  It is constitutional, and the right cannot be “construed” away by the 14th Amendment’s Due Process Clause!

Judge Jackson Puts the ‘Cherry on Top’

While the preceding is great news for those who want to protect the unborn and retain in Tennessee law the categories of male and female and their relation to marriage, Judge Jackson said something else important.
When asked by Senator Lee what Ninth Amendment rights the Supreme Court had articulated, she said there were none. What she didn’t say was why, and the answer to that is because the Court has never been put in a position in which it had to interpret the Ninth Amendment.
What this means is that no 14th Amendment Due Process decision (Roe v. Wade or Obergefell v. Hodges) can be controlling precedent for an argument based on the Ninth Amendment.

Application to the Legislature and Governor

It is too late in the day for the governor and the legislature to make a Ninth Amendment argument to enact a law prohibiting doctors from performing an abortion once fetal life is detected. The Supreme Court will decide the fate of Roe v. Wade by June of this year.
But it is not too late to use the Ninth Amendment to protect the historical categories of male and female and the nature of their distinct and unique natures in relation to marriage.  Our legislators and governor can do that by making sure the MCRA is enacted.
Next Wednesday, the Senate will decide whether to adopt the MCRA, and, if it does so, later that day, the House Civil Justice Committee will decide what to do.
Stay tuned, because we are about to find out what our legislators and governor really believe about marriage, and more specifically, how willing our Christian elected officials are to find a way—the MCRA, I’d suggest—to reconcile their duty before God in relation to what they say they believe about marriage and their duties under the both the state[i] and federal constitutions.
[1] No court has ever held that the following provision in Tennessee’s Constitution is unenforceable with respect to marriages formed in Tennessee: “The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state” (emphasis supplied). 

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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