“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Despite 220 years of constitutional interpretation, there really isn’t much one can say about the Ninth Amendment. And that’s just what James Madison and the Framers intended.
The Ninth Amendment is that rare creature in American politics, a success story conceived in humility. The first eight amendments of the Bill of Rights established freedom of worship, the freedoms of assembly, speech, press and petition, the rights to bear arms, to be free from government intrusions into citizens’ homes, to due process and to a jury of one’s peers, and many others. Having penned what may have been the finest articulation of the rights of man in human history, Madison and his colleagues could have been forgiven for giving way to hubris and capping it with a rhetorical flourish. Instead, they added a caution, by way of an afterthought. The Ninth Amendment’s quiet caveat has done much more to protect fundamental rights from government encroachment than its humble phrasing would suggest.
The Bill of Rights exists because a compromise was required to satisfy the Anti-Federalists and States that were cautious about ratifying into existence a federal government of broad powers. The Ninth Amendment exists because another compromise was necessary to satisfy those in the Federalist camp who believed that an enumeration of rights would tend to negate recognition of rights left unmentioned. Madison, Alexander Hamilton and other Federalists contended that a Bill of Rights was unnecessary because the federal government’s powers were delineated by and limited to those set forth in Article I, Section 8 [link to John Baker’s blog on this provision – https://constitutingamerica.org/category/analyzing-the-constitution-in-90-days-2011-project/article-i-section-08-clause-01/ ] Hamilton’s Federalist 84 queried, “Why declare that things shall not be done which there is no power to do?” But the Anti-Federalists, led by Thomas Jefferson, prevailed, and history has affirmed their wisdom as through expansive interpretations of the Necessary and Proper Clause and the Commerce Clause the mantle of federal power has come to envelope virtually every aspect of life from the light bulbs in our ceilings to the “individual mandate” to purchase health insurance. The enumeration of rights stands as a bulwark against that tide of federal authority in the sphere of private life, speech and conduct. On the other hand, the Ninth Amendment lifts its staying hand against the argument that these rights, and only these, stand between the citizen and his seemingly omnipotent (and, with digital technology, increasingly omnipresent) government.
That the rights enumerated in the first eight amendments are not all the rights we possess may strike one at first as a challenging notion. For rights that went unenumerated at the time, but became “self-evident” (in the words of the Declaration) much later, consider the right to be free, expressed in the Thirteenth Amendment prohibiting slavery (1865); the right to vote (Amendment XIV in 1870); and the right to vote for women, which came a half-century later (Amendment XIX in 1920). Except for the salutary effect of the Ninth Amendment, it might have been presumed that no other fundamental human rights existed outside of those enumerated in 1789 – that the “canon of human rights” was closed, not subject to further elaboration through constitutional amendment. Or perhaps what is worse, it might have been supposed that all “rights” secured by the people through amendment of the Constitution subsequent to the Founding were not “fundamental” human rights, but only positive political rights secured through an effective application of the Social Contract. For unenumerated fundamental rights that have yet to be affirmed in the written constitution, consider the right of conscience; the right of parents to raise and educate their children outside of the government school system (unrecognized in parts of Europe and elsewhere), or the right to be free from genetic manipulation.
Mark Twain quipped, “Some compromise is essential between parties which are not omniscient.” Our generations, and generations to come, will have to struggle with the meaning of rights enumerated and unenumerated, and with the wisdom of further constitutional amendments. Thankfully, because the two great forces in the making of the Constitution were willing to admit their fallibility and broker resolutions, we have the wisdom of the Bill of Rights, and the wisdom of the “Bill of Other Rights” – the Ninth Amendment.
Steven H. Aden is the Senior Counsel for the Alliance Defense Fund, http://www.alliancedefensefund.org/ .