Kennedys and Rights

ERNEST B. FURGURSON

May 19, 1991|By ERNEST B. FURGURSON

Washington.--We of the quality press turn up our noses at the supermarket tabloids, whose bread and butter are two-headed babies and rapists from Mars. But some tabloid staples are like irresistible dessert to even the most staid among us.

The British royal family is one. America's royal family, the Kennedys, is another.

In a time of serious recession, the best newspapers have committed top personpower and uncounted dollars to investigating William Kennedy Smith's adventures in Palm Beach, along with what his uncle Teddy knew and when he knew it. Out of curiosity, as I write this I have asked my computer for whatever is listed under "Kennedy" in this day's incoming news files at The Sun. I find 14 stories, from five different sources.

None of them mentions anything positive that any Kennedy has done. To read the papers and listen to the broadcast news, a tabloid visitor from outer space might assume no member of the family has ever done anything but misbehave. Ted Kennedy's carousing has gotten infinitely more column inches and air time than his years-long crusade for national health insurance. Which, in the long run, is more important?

I am not taking on the hopeless job of defending his after-hours life, or all his and his brothers' politics. I do meekly offer a footnote to the history of Chappaquiddick and Palm Beach. It concerns Caroline Kennedy, the president's daughter, whose photographs charmed the nation three decades ago as she played in her father's office and rode her favorite pony.

Three years ago, little noticed by the tabloids, Caroline graduated from Columbia Law School. Much of her time since then has been spent on a project shared with another Columbia Law graduate, Ellen Alderman. Their subject is one that should be celebrated in 1991 by every publication, every broadcaster, preacher, student, every citizen of the United States: the 200-year-old Bill of Rights.

In a book called "In Our Defense: The Bill of Rights in Action," these two lawyers dealt with much more than legal theory. They crisscrossed the nation to talk to principals in key cases based on the first ten amendments to the Constitution.

Their exploration of the Ninth Amendment is especially pertinent during the bicentennial year of the Bill of Rights. Though Caroline Kennedy doesn't say so, some of her relatives also may think it pertinent to the way their private lives have been converted into public property.

Specific rights are listed in the first eight amendments. The Ninth adds, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Since 1791, debate has raged over what the First Amendment means, although it seems self-evident to me: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

If anything that forthright is subject to endless argument, anything as open to interpretation as the Ninth would seem to be useless. As the young lawyers ask, "What are these 'other rights' and, more importantly, who decides?"

These other rights are whatever may be claimed by a citizen, but the final ruling is up to the Supreme Court. The most

conspicuous claim made under the Ninth has been the right to privacy. Accepting that claim, the high court in 1965 struck down Connecticut's law against use of contraceptives. Since then, the Ninth Amendment has been debated almost as often and vigorously as the First.

Justice William O. Douglas maintained that the "penumbra" of earlier amendments implied a fundamental right to privacy without stating it. Justice Arthur Goldberg noted that the Ninth -- had been added to answer James Madison's original concern that a Bill of Rights was a bad idea because it could not possibly specify all the people's rights.

Since that 1965 case, the Ninth has been used to assert all kinds of previously unrecognized rights, some of them silly. The Supreme Court mentioned the Ninth in Roe v. Wade, the decision legalizing abortion. But by 1989, the Webster decision upholding Missouri restrictions on abortion ignored the amendment.

If the Kennedys were litigious, they might offer the Ninth Amendment as explained by Caroline Kennedy to claim a right of privacy against gossip reporters. But with more than one good lawyer in the family, they know the crystal-clear First Amendment takes precedence, even when it discomfits royalty.

Ernest B. Furgurson is associate editor of The Sun. His column appears on Sunday, Wednesday and Friday.

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