What If Martin Luther King, Jr’s Work Wasn’t About A Fundamental Right?
12:09 PM 01/20/2015
Shoshana Weissmann
The newly released movie
“Selma” chronicles Martin Luther King, Jr’s civil rights work and
accomplishments in Alabama, including the voting rights march he
organized from Selma to Montgomery, Alabama in 1965. But many of King’s
efforts hinged on the rights within the 14th Amendment being
fundamental. His efforts might not have been as successful if those
rights were not enumerated.
In one on King’s most notable efforts was leading the
Montgomery Bus Boycott — the activist arm of protest against segregation
in Alabama. During the boycott, the legal arm made its way to the
Supreme Court. In district court, Browder v. Gayle challenged
Alabama laws requiring segregation of buses. The case was filed on
behalf of African American women “who had been mistreated on city
buses.” In the end, the Supreme Court upheld the district court ruling
holding the laws unconstitutional, in violation of the 14th Amendment.
In reaching its decision, the court drew upon prior Supreme
Court decisions holding that the 14th Amendment guarantees “a
fundamental right of equality of treatment.” But what if Browder had not
involved a fundamental right? The analysis would have been completely
different. Simply put, the challengers wouldn’t have had a chance.
When evaluating laws involving fundamental rights, courts
apply “heightened scrutiny” and seek out the truth. They examine the
facts of the case, and determine if government sought to achieve a
constitutional end through a constitutional means. In these cases, the
burden of proof is on the government — government must prove its actions
are a necessary means of exercising a proper power.
But fundamental rights are the exception, not the rule.
They include those expressly listed in the Bill of Rights and a few
others that the Court has decided deserve actual protection. Unless you
are voting, speaking, going to church, or exercising one of a handful of
other rights that have been dubbed fundamental by the Supreme Court,
restrictions on your liberty will be evaluated under “rational basis
test.” Under this test, courts regularly abdicate their responsibility
to uphold the Constitution.
All of our rights, including unenumerated rights, deserve
meaningful protection. The 9th Amendment states, “The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.”
As Professor Randy Barnett notes in his Restoring the Lost Constitution: The Presumption of Liberty,
“The Ninth Amendment was added to the Constitution precisely because it
was impossible to enumerate all the liberties we have and undesirable
even to try. Any effort to do so using originalist methods would give
rise to the very danger the Ninth Amendment is there to prevent.”
Barnett outlines innumerable quotes from James Iredell to James Madison
that make clear that, contra Robert Bork, the Ninth Amendment is no
“inkblot.”
What if the Bill of Rights was never added to the
Constitution? Would it mean that the rights it outlines would not merit
protection? Before the Bill of Rights was added to the Constitution, did
people have no enforceable rights? The answer is obvious: Of course
not. Our rights don’t exist nor deserve protection just because they’re
outlined in the Constitution. Rather, the Constitution exists to prevent
government from infringing on rights that pre-exist government. The
Declaration of Independence states that every individual is born with a
right to life, liberty, and the pursuit of happiness; the Constitution
is designed to make the enjoyment of those natural rights possible.
Alabama Constitutional Amendment #1
WTVY - Dothan, AL
