Sandra Fluke, The Ninth Amendment, and the Definition of a Right

Item the first:  I seldom listen to Rush Limbaugh.  He can be funny at times, caustic at others, but is generally entertaining.  His remarks about Sandra Fluke however were tasteless at best, and wrong-headed for reasons I will try to make clear.  Now for my rant:

Both wings of America’s Big Government Party¹ have their undies in a wad over Sandra Fluke and the issue she has come to personify. Both are horrifically wrong. The Ninth Amendment, and a proper definition of “Rights”, hold the key.

The Puritanical Right views Ms Fluke’s whining about not being provided birth control as part of the Student Health Services where she attends law school as proof positive she, somehow overlooking the vast majority of Americans who have, are, or will use birth control as a tool of family planning, is emblematic of a moral decay inflicting our nation.  Birth control, the sanctimonious wail, enables the wed as well as the unwed to be promiscuous, having sex for sheer enjoyment rather than the God-given purpose of procreation within marriage.  Thus self-proclaimed “small-government conservatives” seem not to notice one whit the irony in claiming for government the power to control the personal sexual activities of more than two hundred million people.

The Always Outraged Left on the other hand is apoplectic over the fact that the university Ms Fluke attends demurs from providing the benefit in question because it is affiliated with a religious organization which considers birth control to be immoral.² The Left’s hypocrisy is shameless, as is generally the case, as its constituent parts appear oblivious to the principle that a government once given the power to command a benefit for some also has the power to command its denial to all.

The Ninth Amendment to the Constitution is central to this discussion, and ought to provide guidance to both sides.  It states, as I am sure you all remember: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  What does this mean, and how does it apply to condom-gate?

The Bill of Rights enumerates a list of basic rights resident in all humans: Speech, press, assembly, trial by jury, and so on.  Most would recognize that those are not the only rights we possess however.  For example, most would agree we have the right to earn a living, marry, have children, and travel, to name but a few more.  The Ninth Amendment reminds us that just because these and others are not mentioned in the Constitution does not mean we do not enjoy them³. 

It does not require any leap at all to conclude that the private sexual activities of consenting adults is fully covered by the Ninth Amendment – particularly in light of the Declaration’s “…Liberty and the Pursuit of Happiness…” clause – and is no business of a government, Federal or otherwise. Checkmate, Puritanical Right. 

Ms Fluke and her Leftist sympathizers are equally wrong, however.  Not to say Ms Fluke does not have the right to enjoy a hearty roll in the hay whenever she so wishes; she certainly does.  What she does not have however is a right to force someone else to finance her choice.  Natural (or Human) Rights are those inalienable civil and political entitlements we all enjoy as humans, and which require neither permission to exercise nor a diminution of another’s equal rights.  Any claim which infringes upon the rights of others by compelling them to provide a good or service for another person is by definition not a right, and thereupon is the important basic principle of Enlightenment thought on which Ms Fluke’s argument fails⁴.

1. Only someone who has been traveling beyond our planet can pretend that we still enjoy a two-party system.  Rather, we have one big-government party with two wings who disagree not on the size or scope of government power, but only on which part of our lives government should impose the most.      
2. One can but marvel at an organization which considers limiting family size a mortal sin, but the raping of children an occupation prerogative.   
3. I have always felt that SCOTUS erred and missed a great opportunity to strengthen individual liberty by deciding Roe v. Wade on the 4^th Amendment’s inferred privacy provision rather than the broader protections  proffered by the 9^th.
4. Examples may make this case a bit easier to understand:  No one could reasonably claim he/she cannot enjoy freedom of the press sans their ability to compel someone else to buy them a printing press, nor that we cannot enjoy our Second Amendment rights unless taxpayers provide us with ammunition. This is, by the way, why healthcare is not a right.