Brushfire of Freedom
The Armory
Note: Originally published at Brushfire Sparks on July 7th, 2009.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
One of the most significant points of contention between Federalists and Anti-Federalists during the construction of the Constitution was the need for a Bill of Rights. The Federalists believed there was no need for a Bill of Rights because they saw no need to, “...declare things shall not be done which there is no power to do...”. The Federalist position was that the Constitution gave power to the government, and thus any power it lacked could not be exercised. There was a further concern that an enumeration of rights would by default exclude any rights not listed specifically in the bill. This became the spark for the creation of the ninth.
James Madison wrote a much more detailed amendment, “The exceptions [to power] here or elsewhere in the constitution made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations on such powers, or as inserted merely for greater caution”. The Congress debating the Constitution and subsequent Bill of Rights boiled that down to the version we see today. The biggest question regarding the ninth is exactly what rights that were not enumerated created such concern with the Founders?
The ninth has not been frequently cited as a direct protection of any given right, though there are several cases where the ninth is brought forward in conjunction with other precedents or amendments. The right to privacy is attributed largely to the ninth amendment, though no such right exists in any other part of the founding documents. The ninth was also cited in Roe v. Wade as a basis for a woman’s right to choose, and is frequently used by constructionist judges as justification for judicial activism. While it is difficult to say that the Founders would have supported either privacy (most likely) or abortion (most likely not), it is clear that there was concern on both sides that a powerful central government would overstep its boundaries and trample on the freedoms of the people. The prevention of this catastrophe was the purpose of the Bill of Rights, and a strongly related purpose of the ninth.
What appears to be ignored in many cases brought before the courts is the rights enumerated in the Declaration of Independence. The Declaration clearly calls out, “...life, liberty, and the pursuit of happiness...” as rights worthy of protection. Thus it could be construed that the ninth was established to specifically protect those rights from an over-reaching central government. As such, any practice that falls under “life, liberty, pursuit” would be protected by the ninth and the Bill of Rights, since they are not enumerated within the framework of the Constitution. It may be useful to review recent judicial activity with this concept in mind.
First, Roe v. Wade may be considered in violation of the ninth, not established by the ninth, because the process of abortion prevents the right to life of the unborn child. If you assume the right to life is an inherent right, not enumerated within the Constitution, then there is no need to determine when life begins. Each person has a right to life as stated in the Declaration of Independence. The ninth clearly states that rights not enumerated are still in fact rights. Thus the right to life is a right protected by the Constitution even though it is not enumerated in the Constitution, and those who can achieve “life” should not be denied the right to do so.
We also have the right to liberty meaning, “The state of being free within society from oppressive restrictions imposed by authority on one’s way of life, behavior, or political views.” Forced retirement, at any age, would be a violation of liberty. The loss of property without due process would be a denial of liberty. The word “liberty” has easily traceable roots to the Latin word “liber” meaning literally “free”. Liberty implies that the individual has the power to choose among alternatives i.e. whether to smoke or not, or to wear a helmet while on a motorcycle or not. It is the right to liberty, unenumerated in the Constitution and thus protected by the ninth amendment, that is the source of freedom in America. There is no right to restrict the individual based on “safety” or “crisis” or other events, real or manufactured. The right to liberty is guaranteed by the ninth amendment because it is not a stated right in the Constitution.
Finally, the right to a pursuit of happiness. I’ve dealt with the difference in pursuit of happiness and attainment of happiness in another blog. Based on the Declaration and the protections offered in the ninth amendment, we each have a right to pursue happiness, based of course on our definition of happiness. If we want to be an astronaut, we have the right to pursue that dream, even though it may not be attained, using all methods and paths that are legally at our disposal. If we want to be CEO of GM, the government, specifically the President, does not have the right to remove us from that position just because they have another agenda for GM. In fact it could be easily argued that the continued increases in taxes across all of America are in fact tacit denial of our right to pursue, and thus a violation of the ninth amendment. Again, like the other amendments in the Bill of Rights, the ninth is designed to restrict the power of Government and protect the rights of the people, enumerated or not. This is a fact that even the current siting President has publicly acknowledged, though his recent actions seem to stand in stark contrast against that fact. It is truly amazing that a disagreement on even having a Bill of Rights could result in an amendment like the ninth, and evidence of the insight of the Founders in crafting our Constitution. It is up to us to exercise these rights before they are lost.
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