Since when does Roe v. Wade "invent" a right to privacy? I had a thought the other day. What about the Tenth Amendment? What about the Ninth Amendment?

Strict constructionists -- like Antonin Scalia, Clarence Thomas, and the late William Rehnquist -- insist that, if the Constitution doesn't explicitly allow it, then it's prohibited. They further deny that the Constitution is a "living document" the meaning of which can change as the nations change. Amendments, they maintain, are the only way to change the Constitution.

But let us not pretend that language hasn't changed since 1787. Law is based on language and the specificity of language, and when that language changes, it can be a problem. Concepts change, also. The world changes. Inflation happens, the Internet happens, and a whole host of situations arise that the Founding Fathers, living in 1787, could never have imagined. I mean, seriously -- they literally could never have imagined that those things would happen. Space travel or human flight were not practical in their minds; if anything, such ideas were science-fiction. The radio? The television? The Internet? These are all inventions that our Founding Fathers could not have predicted would exist in reality and thus are not things that have been taken into consideration in the writing of the Constitution.

Perhaps the most famous example of a power not explicitly granted to Congress is the power to create an air force. Article I, Section 8 of the Constitution gives Congress the express power "[t]o raise and support Armies" and "[t]o provide and maintain a Navy," but the Constitution does not explicitly grant Congress the ability to create a military force composed of flying vehicles. What about the "necessary and proper" clause, which has been the justification for a whole host of crazy legislation? If you'll look further at the famous "necessary and proper" clause, it says that one power of Congress is

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

But providing an air force is not one of "the foregoing Powers." Nevertheless, Congress has blatantly ignored the Constitution, which does not give it the power to create an air force. And so we have an air force. Because if we stuck to the absolute letter of the Constitution -- which will turn 218 years old this Saturday -- we are stuck in the legal language of 218 years ago.

Not to worry, though, because the Constitution itself tells us the breadth with which it should be interpreted. The Ninth Amendment, ratified in 1791 along with the rest of the Bill of Rights, tells us, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This amendment is conveniently forgotten by strict constructionists because it provides textual support for the Constitution as a document intended to be interpreted broadly. "Just because a right isn't mentioned specifically in the Constitution doesn't mean that a person doesn't have that right," says the Constitution. In other words, the Constitution itself is saying, "If it isn't expressly prohibited, then it's allowed" -- the mantra of broad constructionism. Therefore, insisting that a right to privacy is a stupid interpretation of the Constitution is to misunderstand the Constitution. In fact, to have a strict constructionist approach the Constitution is to misunderstand the Constitution. A right to privacy is a right that is not enumerated in the Constitution; however, the Tenth Amendment explicitly tells us that just because that right isn't mentioned, that doesn't mean that the people don't have it.

The history of the Ninth Amendment reveals this fact. James Madison, principal author of the Bill of Rights, talked of the necessity of such an amendment when he presented his twelve amendments to the House of Representatives:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

In other words, the Ninth Amendment was inserted into the Constitution so prevent strict constructionists from pointing to the Constitution and saying, "You don't have right [X] because the Constitution doesn't say you have right [X]."

The Tenth Amendment also provides textual support for a broad constructionist interpretation of the Constitution: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This amendment, more so than the Ninth, confirms that the Constitution itself allows anything it does not prohibit; thus, the document itself tells us how it should be interpreted. In case law, this has meant that states have the power to do things that are not expressly given to the federal government to do. Thus the Constitution calls for a limited federal role, that role being circumscribed by the Constitution itself. This prevents the federal government from regulating liquor sales, for example, because the Constitution does not give Congress the authority to regulate liquor sales. But it does not forbid regulation of liquor sales, either, and the Tenth Amendment says that the states can regulate liquor sales, since Congress isn't given the authority to do so.

The argument that a right to privacy is not in the Constitution, and is thus a fallaciously derived right, is itself fallacious because it ignores the fact that the Constitution does not enumerate all of the rights that Americans have. Indeed, it says exactly the opposite, acknowledging that there are some rights that it does not explicitly spell out. The Founding Fathers -- of which Madison was one -- recognized the fact that government is not in the business of giving rights to people. People have rights -- some of which are listed in the Constitution, while others are not -- but these rights are held by people naturally, by virtue of their being human beings. The government does not give rights to people; rather, the Constitution tells the government what the scope of its powers is. To use a parallel analogy, the Constitution doesn't grant liberty to people; rather, it takes liberty from the government. Or, in the words of Chief Justice John Marshall in the case McCullough v. Maryland, 17 U.S. 316 (1819):

This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.