Justice Blacklock on the Ninth Amendment Right to Family

[T]he interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.

–Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality op.)


In In the Interest of H.S., a Minor Child, the Texas Supreme Court concluded that anyone in a “parent-like role” in a child’s life can sue pursuant to a Texas statute for visitation and control over the child, regardless of the parents’ wishes and regardless of whether the parents are still in the child’s life. Dissenting from this majority opinion, the newly-minted Justice Blacklock had a few words to say about the good ol’ “ink blot” that so many of us love to adore (channeling the jurisprudence of his predecessor, then-Justice Willett, in doing so):

The best reading of the text of section 102.003(a)(9) requires a child’s parents to relinquish or shirk their “actual control” of the child before a non-parent may assert the “actual control” required for standing. The Court need not proceed any further to resolve this case. But even if the interpretation of section 102.003(a)(9) adopted by the Court today were equally persuasive—that is, even if the statute’s text supported two equally plausible readings—we should prefer the interpretation that avoids constitutional questions like those at stake here. We should likewise prefer the interpretation, as between two equally plausible interpretations, that better accommodates the unalienable rights proclaimed by the Declaration of Independence and retained by the people under the Ninth Amendment.

In the Interest of H.S., a Minor Child, No. 16-0715, slip op. at 22 (Tex. June 15, 2018) (Blacklock, J., dissenting) (emphasis added).

As Rob has noted elsewhere, it is a refreshing and welcome development whenever a jurist recognizes that the Ninth Amendment, rather than a mere “ink blot,” actually means what it says. The issue, of course, is figuring out what it says.

The Framers had far less trouble than we do today with this. They had little difficulty recognizing that certain rights were not up for grabs in the social compact. They acknowledged that these rights were superior to, and would in some circumstances override, any positive law to the contrary. That is why Jefferson called these rights “unalienable” and the Bill of Rights recognized that these rights are retained by the people –that is, they are pre-political and pre-legal and not altered by either.

These rights, per the Declaration of Independence, derive from “the Laws of Nature and of Nature’s God.” It is on this natural law that Blackstone wrote:

This law of nature, being coeval with mankind and dicta­ted by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

The view that there is a natural law that precedes–and even overrides–positive law did not just appear in the Declaration and the Bill of Rights, but it also gained a footing in Supreme Court precedent as early as 1798. In his opinion in Calder v. Bull, Justice Samuel Chase wrote,

The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact . . . . This fundamental principle flows from the very nature of our free Republican governments . . . . There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republicans governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.

Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (opinion of Chase, J.) (emphasis added).

Tellingly, as Justice Blacklock observed in his dissent (p. 21), even Justice Scalia, who was of the view that courts had no power to give the Ninth Amendment any effect, still recognized the meaning of the Ninth Amendment when it comes to family:

In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all men … are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.”

Troxel v. Granville, 530 U.S. 57, 91 (2000) (Scalia, J., dissenting).

In H.S., what Justice Blacklock briefly touches on is that a parent’s right not to be forcibly estranged from his or her child by the state (legally, physically, or otherwise) is a right that precedes and overrides laws to the contrary—so long as those laws do not have a compelling justification (such as the case may be in situations of child abuse and the like). See Troxel v. Granville, 530 U.S. 57, 80 (2000) (Thomas, J., concurring in the judgment).

We would do well to recognize with Justice Blacklock that the Ninth Amendment means what it says here—family is superior to state, and that bond (and all it entails) may not be interfered with by the state, except in rare and compelling cases.

Or, as Jesus of Nazareth admonished: “[W]hat God has joined together, let no one separate.”*

*In context, technically about marriage, but fits here just as well. 

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