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The following is an excerpt from Daniel A. Farber's forthcoming "Retained by the People: The 'Silent' Ninth Amendment and the Constitutional Rights Americans Don't Know They Have" (Perseus Books, 2007), available April 30.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. --The Ninth Amendment
Everyone knows about the First Amendment right of free speech and the Fifth Amendment right to avoid self-incrimination. Even the once-forgotten Second Amendment, with its "right to bear arms," has reemerged in public debate. But few people know about the Ninth Amendment, which reaffirms in broad terms rights "retained by the people." Indeed, the Ninth flies so far under the radar that it has rarely been mentioned even by the Supreme Court.
What a pity. Even more, what a terrible oversight: the Ninth Amendment bears directly on such modern-day constitutional issues as abortion, the right to die, and gay rights.
The Ninth Amendment is key to understanding how the Founding Fathers thought about the liberties they expected Americans to enjoy under the Constitution. They did not believe that they were creating these liberties in the Bill of Rights. Instead, they were merely acknowledging some of the rights that no government could properly deny.
The history of the Constitution reveals the purpose of the Ninth and the Founders' intent: to protect what constitutional lawyers call unenumerated rights -- those rights the Founder assumed and felt no need to specify in the Bill of Rights. Unenumerated rights include, for example, the right to privacy. In the America of today, unenumerated rights account for freedoms like a woman's right to abortion. ...
The truth is that anyone interested in the political and legal issues of the day can and should look to the Ninth Amendment for guidance.
The Ninth Amendment is paired with an almost equally forgotten provision, the Privileges or Immunities Clause (P or I Clause) of the Fourteenth Amendment, which draws from the same intellectual roots. The Ninth Amendment is like the rest of the original Bill of Rights: it speaks only to limits on federal power rather than to the powers of state governments. Limitations on state governments came along later, with the post-Civil War Fourteenth Amendment. Thus, the Ninth Amendment addresses the federal government; the Fourteenth addresses the states.
The human rights vision that survived the Civil War and was confirmed by the Fourteenth Amendment consciously complements that of the Founders. Confronting what these provisions really mean has the potential to reshape the way we think about the Constitution.
In particular, a look at this history helps us address the very controversial question of Supreme Court reliance on foreign law. The Framers thought that fundamental rights were embedded in what they called "the law of nations," and we should follow their lead in seeking inspiration abroad. However, their openness to foreign law is not universally shared today. When Justice Kennedy referred to foreign law in two judicial opinions on the issues of homosexuality and the death penalty, he was subject to an onslaught of criticism from legal commentators. Many of those same commentators question whether the United States is bound by international human rights laws, such as the Geneva Convention's prohibitions on mistreatment of prisoners. ...
The Ninth Amendment and the debate over fundamental rights
Standing alone, the Ninth Amendment does not make any specific law unconstitutional. It is an explanation, not a command -- like the FAQs found on many Web sites. In this case, the Frequently Asked Question is: "The Bill of Rights provides a list of specific rights that are protected from invasion by the federal government. Does this mean that the federal government can violate other rights if they aren't on the list?" The Ninth answers, "No. The Bill of Rights is not complete. Other rights exist, and the federal government must respect them." Indeed, as a supporter of the Constitution pointed out at the Pennsylvania ratification convention, "Our rights are not yet all known," so an enumeration was impossible. While it is true that history often fails to provide clear proof of what the Framers believed, there are exceptions. The Ninth Amendment is one of them.
How is all this playing out on our most vital constitutional front, the Supreme Court, today? The Court is sharply divided over whether the Constitution provides broad protection for human rights and just what those rights are. On one side have been those Justices who believe that the Constitution does give such broad protection--not just to those freedoms explicitly listed in the Bill of Rights but to other fundamental aspects of liberty. In honoring not merely the Framers' text but the intent behind it, these Justices have supported, for example, the right to abortion, the right of gays to have sexual relationships, and the right to die. More generally, these Justices have proclaimed: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."
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Daniel A. Farber is Sho Sato Professor of Law and Director of the Environmental Law Program at California University at Berkeley and author of many books, including most recently, Retained by the People: The 'Silent' Ninth Amendment and the Constitutional Rights Americans Don't Know They Have" (Perseus Books, 2007).
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