Can the Government Force You to Buy a Condom?

American Thinker ^ | April 09, 2010 | Bruce Hanson

[neverdem]

Vice President Joe Biden may have exposed an unconstitutional flaw in the health care bill when he said under his breath to President Obama, "This is a big fu%*#g deal." Biden's naughty comment provided late-night TV hosts with an unlimited number of comic implications pertaining to the public "getting screwed." Nonetheless, an argument can be made that the Supreme Court has already decided that the health care bill is unconstitutional. Please let me explain.

First some background on the Ninth Amendment of the United States Constitution. 

The Ninth Amendment provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Thus, a right is worthy of judicial protection even if it is not listed in the Constitution. To fail to protect these "other" unenumerated rights "retained by the people" in the same manner that we protect enumerated rights would surely be to "disparage" them, if not to "deny" their existence altogether.

We must remember that the framers believed in natural rights -- the idea that people by their nature have certain basic rights that precede the establishment of any government.

Representative Roger Sherman wrote in his proposed draft of a bill of rights that "[t]he people have certain natural rights which are retained by them when they enter into society."

According to John Locke, the English natural rights theorist who greatly influenced the founders' generation, the principal justification for founding a government is to make these rights more secure than they would be in a state of nature -- that is, in a society without any government.

In this view, natural rights define a bounded domain of liberty for each person, wherein one may do as one pleases. Exactly how this liberty may be exercised is limited only by one's imagination, so it is impossible to enumerate specifically all of one's natural rights.

This is the reason for the Ninth Amendment. The framers felt it impossible to enumerate all the rights of men. Consequently, they enumerated only what they felt was most important, that being the other nine amendments in the Bill of Rights.  

Would the Supreme Court allow Congress to establish a law that says it's against the law to stand in the rain without an umbrella? Or ride a fast horse? Or climb a steep mountain?

How about participate in sex with or without a condom?

To repeat, "Natural rights define a bounded domain of liberty for each person wherein one may do as one pleases."

On occasion, laws have been enacted that limit natural rights. The U.S. Supreme Court protected the right to use birth control in Griswold v. Connecticut. The court ruled on a dispute dealing with an 1879 Connecticut statute that made it a crime for any person to use any drug, article, or instrument to prevent conception. Griswold exemplifies an unenumerated right. The court concluded that as such activities are within the sphere of bounded liberty retained by the people, they are beyond the rightful power of government. An analysis of retained rights could also constrain the "means" by which governmental ends can be achieved.

Can Congress "deny" the existence of an unenumerated right altogether?

In 1986, the Supreme Court ruled in the sodomy case Bowers v. Hardwick that an unenumerated liberty was to be deemed fundamental only if shown to be deeply rooted in the tradition or history of the nation or implicit in the concept of ordered liberty. Americans have been exercising their liberty to choose to buy health insurance or not since virtually the signing of the Constitution.  

To interpret the Ninth Amendment, the Supreme Court looks to see if the federal government has the power it claims. An argument can be made that a condom is protection -- an insurance policy, if you will. Can our government force you to buy or not buy a condom? No, the Supreme Court concluded that such activities are within the sphere of bounded liberty retained by the people. Similarly, can our government force you to buy or not buy an insurance policy? Can our government force Americans to buy condoms, every year, for the rest of their lives, whether they use them or not? Up until March 21, 2010, they could not.

Further reading:

Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004)

Calvin R. Massey, Silent Rights: The Ninth Amendment and the Constitution's Unenumerated Rights (1995)

[neverdem]

Bowers v. Hardwick was basically overturned by Lawrence v. Texas(2003), so I'm not sure that's the best example to cite, IMHO.

[HospiceNurse]

They have already made us buy stock in General Motors.

[neverdem]

They have already made us buy stock in General Motors.

IIRC, the Supreme Court has yet to rule on this.

[bone52]

They didn’t overturn the language stating that an unenumerated right is only fundamental if it is deeply rooted in tradition or history, Justice Kennedy just took a very different view on what tradition and history are, including citing to examples in Europe.

[oyez]

I don’t know about that but they think they can force me to pay for an abortion.

[lentulusgracchus]

Bowers v. Hardwick was basically overturned by Lawrence v. Texas (2003), so I'm not sure that's the best example to cite, IMHO.

Actually, the Court in deciding Lawrence never even addressed the precedents or arguments used in deciding Bowers vs. Hardwick. They simply decided the issue de novo, "making it up as they went along" -- pure-dimensional liberal judicial activism at its classic rankest. Thank you, Sandra Day O'Connor. What a cheeseball.

[lentulusgracchus]

[Article] The Ninth Amendment provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Madison, when he wrote this article, was speaking directly to Alexander Hamilton's argument against a Bill of Rights in his Federalist article about bills of right and why the whole Constitution is a bill of rights, and that adding the BoR with certain enumerated rights would diminish the protection afforded by the Constitution.

Hamilton's argument was, basically, that by enumerating a right, one implicitly admits of circumstances in which the right might be limited or circumscribed ("disparaged") by commonsense regulation -- or fast lawyer-talking. Hence, one shoots oneself in the foot by stipulating what one's rights are. Thus Hamilton.

[Arthur McGowan]

This is a thicket which the Constitution itself cannot resolve. When judges protect what they claim are unenumerated rights, they are accused of Judicial Activism by those who disagree. Or, they are accused with an even more potent devil-phrase: Substantive Due Process.

Only a sound, healthy moral culture can resolve what are genuine unenumerated rights, and what are fictions invented by judges.

The “right to privacy” that includes a “right” to kill a baby is one of those fictitious “rights.” There is no flaw in the Constitution that has given us federal usurpation of the states’ right to protect innocent lives from homicide. It is activist judges and a sick moral culture that have done it.

[mikey_hates_everything]

Why? There are free condoms in dispensers in the rest rooms of the US Embassy in Phnom Penh, Cambodia.

[xzins]

ping

Griswold again, P-M.

[Erik Latranyi]

Can the government force you to buy a condom?

No, but in socialist uptopias, they force you to have an abortion as a means of population control.

[ripley]

The correct question is:

“Can scu&bags force you to buy a condom?”

IMHO

[stevie_d_64]

They make great party favors, and come in handy if you are storming a european beachhead...Keeps things from getting into other things...;-)

[CharlesWayneCT]

The abortion issue isn’t about unenumerated rights, and unenumerated rights would be much more accepted by conservatives as being in the spirit of the constitution if it weren’t for the issue of abortion and the way it was legalized.

Most pro-lifers oppose abortion for a simple reason — abortion kills a human being, and we are supposed to PROTECT humans, not kill them. The government has always had the power and authority to protect one person from harm by another, and we should be able to ban abortion under that long-standing practice.

If abortion was truly, as it’s supporters falsely claim, just removing random tissue, most conservatives would oppose government’s attempts to ban it, because government really has no business telling us what we can do to ourselves.

Obviously when it comes to our rights, enumerated or otherwise, government has some power to restrict or infringe on those rights, in the performance of constitutional duties. But I frankly don’t see how government could get away with banning the use of condoms — it’s really no business of government what I choose to do with my sperm. I guess government could argue it has a compelling interest in perpetuating the species, but unless that means they can force me to have sex, that argument doesn’t wash.

[MichiganConservative]

Only a sound, healthy moral culture can resolve what are genuine unenumerated rights, and what are fictions invented by judges.

It all basically seems to boil down to property rights. Even abortion and protecting human beings in the first stages of development. Feminists deny this and use emotional arguments. When you can't think because you are blinded by emotion that is not good. Also, if you go out to steal from others as your MO, intellectual arguments about respecting other people's property don't work so well.

At least in some cases, you can protect your property with the right enumerated in the 2nd Amendment.

[Ophiucus]

How about participate in sex with or without a condom?

Isn't this under debate in the California legislature?

[MrB]

Leftists don’t give a rip about tradition and history,
because they believe they inherently know better
because they are alive in the here and now.