The Preamble to the U.S. Constitution is majestic and powerful:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
In the stroke of a few words, the Constitution explains that our “perfect Union” which allows for “Justice” and the “Blessings of Liberty” flow not from our government but from “We the people of the United States.”
This means we the people of the United States have rights not dependent upon the government. Rather the power of the government depends on the people. This was made even more clear in the Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
“The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights3 could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.” Griswold v. State of Connecticut, 381 U.S. 479, 488-89 (1965)
The Griswold majority decision rested on Fourth and Fifth Amendment grounds, but Justice Goldberg, the Chief Justice and Justice Brennan wrote a concurring opinion stating based squarely on Ninth Amendment principles:the language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. Id. at 488.
So we the people have certain fundamental rights which the government is not dependent upon the grant of the government. Moreover, the government cannot infringe upon those rights. In the words of the Tenth Amendment, “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.”
In other words, the government has no power to tell people what to do except in areas specifically granted by we the people in the Constitution. It is “self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations.” Meachum v. Fano, 427 U.S. 215, 220 (1976), Justices Stevens, Brennan and Marshall, dissenting