Friday, August 24, 2007


Paul Abramson's provocative new book, Romance in the Ivory Tower, argues that there is a "right to romance" implicit in the 9th Amendment to the US constitution. This right nullifies collegiate policies which prohibit professor's from having relationships with their students.

In a more foolish comment than normal (an impressive achievement), Dineesh D'Souza argues that "If professors had a constitutional 'right to romance,' then a student's refusal to sleep with them would constitute a violation of their rights." Well, no, it wouldn't, if for no other reason than rape is not romantic (and believe me, there are plenty of other reasons).

Abramson locates the right to romance in the 9th amendment to the Constitution, which states that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Or put more simply, just because it isn't written, doesn't mean you don't have it. Of course, that raises the perplexing question of just which rights you do have. D'Souza, needless to say, doesn't even bother to answer this question, instead ducking back to the classic parade of horribles ("[D]o I have a Ninth Amendment right to take drugs? To travel without a passport? To conduct my own foreign policy?" I wish I was making these up). D'Souza may take the Robert Bork position that the 9th amendment is an "inkblot", but for the rest of us whose professions of fidelity to the constitution are more than conservative posturing, this is not a sufficient response.

Historically, the Supreme Court has given certain practices that don't have specific textual grounding constitutional protection (right to educate one's children in private schools, Pierce v. Society of Sisters; right for children to learn foreign languages, Meyer v. Nebraska. Needless to say, both of these cases refer to negative rights; they do not create positive entitlements). In my opinion, such acts gain their authority implicitly, if not explicitly, through the ninth amendment. There are two standards the court has used to determine whether an action fits within this framework, either one of which appears to be sufficient: first, if having the right is "implicit in the concept of ordered liberty," Palko v. Connecticut, and second if the right is "deeply rooted in this Nation's history and tradition," Moore v. City of East Cleveland.

Within this framework, I think Abramson has a far stronger case than D'Souza gives him credit for. The ability to choose one's own intimate associations can fairly be said to be "implicit in the concept of ordered liberty"--it is difficult to imagine a free state in which the state tells you who you can and cannot date (or worse yet, mandates who you must date). Such a right seems to me to be very closely tied to the freedom of association recognized as inherent in the 1st amendment, and has strong precedential ties to cases like Loving v. Virginia (striking down laws barring interracial marriage) and Lawrence v. Texas (striking down anti-sodomy laws).

That being said, I still disagree with Abramson. Courts have typically allowed restrictions on the formation of relationships where there is a substantial risk of an abuse of power. Adult incest laws are partially predicated on such concerns, as are rules prohibiting fraternization in the military, and employer/employee relationships at many companies. A relationship between a professor and a student seems broadly analogous to these cases, and raises many of the same concerns.

But wishing the Ninth Amendment away is not the way to deal with these issues.



PG said...

"[D]o I have a Ninth Amendment right to take drugs?"

There's nothing very ridiculous about this question. Randy Barnett has posited that the answer to it is yes. The obvious difference is that taking drugs is self dealing (and note that we're talking about TAKING them, not transporting them through interstate commerce), whereas travel without a passport and of course conduct of foreign policy implicate powers that explicitly were granted to Congress.

As for the right to romance, I'd distinguish between laws that provide criminal penalties for an act, and rules whose violation will result in one's dismissal from a position. If your prof is uncontrollably enamored with you, and vice versa, and you simply cannot wait to date until you're no longer in the prof's class -- then deal with the consequence of either dropping the class or his getting fired. That's very little compared to the penalties imposed when people are prosecuted for sex crimes. I don't think rules that prohibit any professor's dating any student on campus, even after that person ceases to be a student, violate the 9th Amendment -- they're simply stupid.

Finally, I wouldn't draw Lawrence nor Loving into the ambit of the 9th Amendment. Frankly, I would prefer that Lawrence had been decided on the narrower ground that Texas's law was sex discriminatory and thus unconstitutional, and of course Loving was based on the law's unconstitutional drawing of racial distinctions.

(I realize that Texas probably would have re-written its law to be more like Georgia's or Virginia's by banning sodomy regardless of the partners' sexes. But then it would have faced the interesting problem of trying to pass a law that banned heterosexual sodomy in the 21st century -- particularly difficult to do once the LGBT groups declared their intent to make as-applied challenges that would demand the law be used to prosecute and derogate heterosexuals at least as often as homosexuals.)

PG said...

Oops -- looking at this again, I realized I meant "whereas travel without a passport and of course conduct of foreign policy implicate powers that explicitly were granted to the federal government."

Stentor said...

Courts have typically allowed restrictions on the formation of relationships where there is a substantial risk of an abuse of power.

And one could argue that in just such cases, restrictions on relationships (rather than allowing them) is what promotes "ordered liberty."