Memorial Day 2011: defending the 9th

On Memorial Day, the people of the United States honor our armed forces, who swear an oath to "support and defend the Constitution" which includes the little known 9th Amendment. Why is the 9th ignored?

Taking the 9th The 9th amendment of the U.S. Constitution, in full:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Let's parse it:

• Enumeration. Amendments 1 through 8 list - or enumerate - a number of certain rights.
• Construed. Understood.
• Deny or disparage. Deny is clear. Disparage means to denigrate or discount.
• Others retained. This phrase recognizes that there are rights that aren't listed.
• The people. As in the 4th Amendment - "The right of the people to be secure in their persons, houses, papers, and effects. . . " - this refers to individuals, not, for example, states.

It means what it says 200 years later its meaning is still clear: Americans have rights not listed in the Constitution. Rights that belong to us, not legislatures or the central government.

Yet has anyone inside the beltway, “liberal” or “conservative,” mentioned it? Any “strict constructionists” or “originalists” proclaim its importance?

Nope.

Original intent The 9th embodies one of the great ideas of the American Revolution: rights rest with citizens, not politicians, and those rights are broad and deep.

For originalists, all sides in the debate over the Bill of Rights took the existence of these unwritten rights as a given. Where they differed was over how to best protect these rights.

The Federalists argued that any unnamed rights would not be protected; so don’t name any at all. James Madison acknowledged his opponents as he submitted the proposed amendments:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure."

This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against.

Madison's guard was the 9th.

The “original intent” is clear. Both Federalists and Democrats agreed that there were too many rights to name.

They differed only in how to protect them. The Federalists favored no Bill of Rights at all (the British model), while Democrats favored the 9th.

Yet this sweeping protection of American rights fell out of use for decades. Only in Griswold v Connecticut, over 50 years ago, the 9th helped tell the states to butt out of the private lives of married couples who wanted to learn about birth control.

Griswold outraged proponents of government control of citizen's private lives. It become the first shot in the “culture wars”, a battle that still rages. And yes, there are still people who want to deny birth control to adults.

The Storage Bits take An "original intent" interpretation of the 9th Amendment gives a new perspective on the role of legislatures and courts. Instead of "activist judges legislating from the bench” we have "strict constructionists" defending citizens rights against authoritarian politicians.

For example, how could a state assume the power to deny married people birth control information? What gave them the right? Certainly not the 9th.

The Framers were much more concerned about the government’s potential abuse of power than they were about citizen’s private decisions. Legislatures have denied millions of Americans their unenumerated rights protected by the 9th.

Sometimes, and not often enough, only the Supreme Court has had the guts to say "enough." If "originalists" are sincere, they must give full weight to the 9th Amendment and our unenumerated rights.

Comments welcome, of course. A recent commenter sneered at my mention of a right to privacy, asking where in the Constitution it is protected. Now he knows.