Number Nine

Some laws are direct and active in orientation.  Others establish principles.  The Ninth Amendment is definitely one of the latter.  As written, it reads:

Number9fullbandThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Not as groundbreaking as the freedom of speech, Prohibition, or female suffrage, this amendment has a power all its own.  From my non-legal perspective, it establishes the principle that we as human beings have a host of rights and freedoms within our person (to use the language of the Declaration, we might say “God-given rights”) which can persist even if the founding document of our nation does not list all of them.  Some of these might be deep and profound, like the freedom of enterprise or self-determination.  Others might be more mundane, like the freedom I have to wear a red shirt or a blue shirt.  Either way, they can be said to be there whether named on a piece of paper or not.

By establishing that it was not the ultimate authority on all possible rights, the Constitution guarantees that its list (or “enumeration”) of rights would not limit us.  It would also seem to prevent, in principle, the federal government from having to list every single right we have.  To do so would be a practice as picayune as it might be too deeply personal.  Besides, if we were only allowed to have the rights named in a document, said document would have to be VERY long.  Otherwise, we would be VERY

Yet in spite of this amendment’s guarantee, there are a number of others that follow it that further enshrine certain rights.  Why do so if these rights are simply naturally there?  Why have a Bill of Rights at all?  Well, here we see one of the reasons these first ten amendments were argued for in the first place: whether by prejudice, inaction, or oversight, the actual practice of a national government can be to limit our God-given rights…some of which are so important that they need to be specified and protected (ie. the right for African-Americans to vote).  Others, at least for a time, are seen as self-evident to the majority (i.e. the right to not be forcibly euthanized in old age).  But: when common perception changes (as it can) or long-held rights are threatened, new specific guarantees or prohibitions are sometimes called for.  That is the story of further amendments and law over the course of our nation’s history.

The question for the contemporary Americans, then, is this: are there more rights we need to enumerate or that are so in danger of being violated that they must be further guaranteed?  If so, what are they?  What, in other words, is the consensus on what must be codified (or, conversely, prohibited)?


One comment on “Number Nine

  1. Unfortunately, the words “intrinsic”, “inherent”, “God-given”, “natural” are purely rhetorical. They usually mean “rights as they are commonly accepted now”. They may have been used to support slavery at one time. To claim any right on rhetorical grounds begs the question: “how do you prove it?” There are no objective criteria.

    All practical rights arise by agreement. At some point the people decide that they will respect and protect a right for each other. Take property for example. The practical benefits of granting each other this right is that the production and exchange of goods is not frustrated by the thief. If the thief steals every chair I manufacture, then what’s the point of making any more chairs. The thief produces nothing to give me in return, so the sum total of goods and services available to us all is reduced. Therefore, we agree to respect and protect a right to property for each other.

    In practical terms, this means that if I see someone trying to steal my neighbor’s car, I call the police. Another practical protection is laws against theft, and the police, courts, and jails we build to prevent the thief from continuing to rob us. As Jefferson said, “to secure these rights governments are instituted”.

    So, that’s the difference between a rhetorical “rights” and a practical rights.

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