Memorial Day 2011: defending the 9th

Memorial Day 2011: defending the 9th

Summary: 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?

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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.

Topics: Government US, Government

About

Robin Harris has been a computer buff for over 35 years and selling and marketing data storage for over 30 years in companies large and small.

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17 comments
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  • RE: Memorial Day 2011: defending the 9th

    Hear, hear.
    Eric_Peterson
  • RE: Memorial Day 2011: defending the 9th

    Perhaps all the politicians (and their minions) are scared $hitle$$ that someone would actually read the entire bill of rights, and start to take back our government. Of course, this means that there sufficient citizens who can read more than 140 characters...
    dahlstedt
  • The citizens speak through their votes

    Too bad citizens vote by emotion instead of conscience.
    C_Tharp
  • RE: Memorial Day 2011: defending the 9th

    As a german citizen, we would (and certainly should) be glad to have such a well elaborated constitution. in fact, our right to elaborate one as the people of the new merged Germany (western and eastern) is denied by our politicians, and is instead held down by deceiving us with the German Basic Law told us being our "Constitution"....

    So defend your rights which belong to you Americans...whether mentioned/written down or not! Use the advantage you have, and if you are successful - im sure you will - enjoy the best form of state/government you can imagine: the republic.
    Apolino
    • RE: Memorial Day 2011: defending the 9th

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  • RE: Memorial Day 2011: defending the 9th

    Nope, still no right to privacy, or to driving, or anything else individuals claim. No "right" exists until it is codified in law and upheld by the courts, which is the actual meaning of "retained by the people."
    aep528
    • RE: Memorial Day 2011: defending the 9th

      @aep528

      The right to privacy is enumerated by the Bill of Rights'
      Article the sixth [Amendment IV]
      "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

      The Constitution and Bill of Rights are limits on the government, not the people. If the Constitution doesn't specifically grant a power to the Government, that power (right) still belongs to me.
      DLClark
  • RE: Memorial Day 2011: defending the 9th

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  • RE: Memorial Day 2011: defending the 9th

    The 9th Amendment is essentially the same thing as a typical enumeration in a modern day contract, which might say something like "homeowner agrees not to raise livestock on his property, including BUT NOT LIMITED TO sheep, goats, hogs, and chickens". The enumeration just helps specify what is generally intended, but does not imply that those are the only items covered. But the 9th Amendment does not automatically give everyone the right to do everything else that is not enumerated. Those that are not enumerated may have to be granted by a court just as a pot-belly pig may be allowed in the aforesaid contract because it might be judged by the court not to be livestock after all.
    DaveMorris
  • RE: Memorial Day 2011: defending the 9th

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    • RE: Memorial Day 2011: defending the 9th

      If you do need further explanations, not covered in that section, do not hesitate to contact me at the email provided within the same extension. tenk"
      frank339
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