A Brief Review:
The 9th Amendment of
the U. S. Constitution
Part I
I won't keep you in suspense. The true foundation of American liberty, the radical wallflower of the Constitution, the rarely noticed and even less remarked upon 9th amendment, in full:

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

There, you've read it. Bask in a slight glow of civic virtue, confident that you now know more about the Constitution than 99% of all Americans, red or blue.

Even 200 plus years later, the meaning is clear. In more modern English James Madison might write "The listing of certain rights in the Constitution shall not be interpreted to deny or minimize other unnamed rights that are, in all cases, retained by the people."

Wow! Does the Constitution really say that we have more rights than are listed in the other amendments? Yes, Virginia, there really is a 9th amendment.

§     §     §

There is much bleating on the right about "strict construction" and "original intent" as an antidote to the wrongs committed by "activist judges." Belief in this fantasy requires forgetting that most judges are conservatives appointed by the Republican Presidents who have controlled the White House for twenty-five of the last thirty-seven years. For example, most of the nine Supremes are Republican appointees, who also voted to overturn the results of the 2000 election in Florida. Even conservative judges can be activists when it feels good.

Despite their death grip on power, the right sheds tears of frustration over their inability to make every citizen a slave of the State, bodies and minds hostage to government whim --- be it babies on demand, forced prayer, or indoctrination into crabbed views of science and ethics.

§     §     §

We should hate sore winners. If the right isn't mocking patriotic Americans they are whining about other patriotic Americans, like judges, who rule in accordance with the law and the Constitution. But the political right's problem isn't with judges. Their problem is the U.S. Constitution and the fact that conservative judges are strict constructionists.

Since the Republicans control Congress, the Executive branch and have appointed most sitting judges, why all the tears? What evil force is thwarting the will of the righteous majority who want only what is best for America and People Like Them? It isn't today's shell-shocked liberals nibbling Brie in their coastal condos.

No, the problem is with that small ragged band of radicals --- people with fiery rhetoric and reckless disregard for the odds --- who won the American Revolution. They wrote the concept of "liberty for all" into the Constitution.

That is the "values voter's" problem. American liberty, as embodied and protected by the Bill of Rights, is their target. The Bill of Rights is key because authoritarian "social conservatives" don't want Americans to have any rights they haven't personally approved. So what is the Bill of Rights?

It is only 613 words, broken into bite size amendments. None of them are too difficult to understand even though they were written over 200 years ago. Construction can be a little vague, probably a result of the heated politicking that went into their drafting, but any American high school graduate should be able to understand the basics.

The Bill of Rights is a radical document, so radical that most conservatives (and not a few liberals) probably wouldn't support it even today. Those working to deny our rights would just as soon we didn't know what it says. More than 200 years ago people believed so strongly in these ideas that they put their "lives, fortunes and sacred honor" on the line for them. And every generation since has been asked to do the same, whether in foreign or domestic battle.

§     §     §

Popular culture continues to wrangles over some of the amendments; these are the better known. But there are others, more obscure.

For instance, the Third Amendment's rules about the quartering of soldiers are so uncontroversial that even Scalia hasn't found fault with them. The Tenth is too abstract: what are these unnamed powers not given the United States and reserved to the States?

Most of the other amendments, when we are reminded of their contents, are vaguely familiar, if only because of their presence in TV shows or political advertising. Here is a brief summary:

  • The First Amendment guarantees of freedom of religion, speech, press and assembly as well as the right to petition the government for the redress of grievances.
  • The Second, popular with the NRA, has perhaps the loosest wording. The NRA bought the rights to interpret the Second Amendment years ago from Congress utilizing the old stratagem, "The best legislation money can buy!" (This has offered a big welcome-mat to terrorists worldwide. Any twenty-one year old non-felon has a right to armor piercing bullets and high-capacity assault rifles suitable only for mowing down body-armored police, and even weapons that can bring down a mile-high airliner).
  • The Fourth is rarely named, but often noted in cop shows, the protagonists fretting about the bother of "probable cause" and the time required to get warrants. (Officer Friendly, the message goes, can be trusted not to abuse power. The Founders --- realists after many years British abuse --- had their own version of Murphy's Law: Any power that can be abused will be. That's why the federal government is so inefficient, each branch always fighting with the two others. The Founders designed it that way to protect us citizens from would-be dictators.)
  • The Fifth's protection against self-incrimination gets visibility in some congressional hearings, but not much else. Yet I am sure some are wondering, "Why can't we make people testify against themselves --- and then throw them in jail if they lie?" If you can see the problem with that, you may be a liberal.

  • The Sixth, Seventh and Eighth Amendments guarantee jury trials for criminal cases and civil suits for twenty dollars (!) or more, and a prohibition on excessive bail or cruel punishment. The jury trial for criminal charges is well known, but most people don't realize that the Bill of Rights also guarantees our right to sue people or corporations who do us wrong. For all the lawyer jokes these amendments have engendered, jury trials are a key leverage points citizens have over those in power. Congress can pass brutal laws, the Executive can enforce them vigorously, even the Judiciary can bless them as Constitutional --- but if a jury of twelve ordinary citizens don't agree, the Government loses, the oppressed walks, and liberty wins. Citizens can abuse this power too, and have. But by spreading out the power the Founders knew that abuse would be minimized.

Of all the amendments, it is the Ninth that best sums up the radicalism of the American Revolution, and the continuing frustration of authoritarians over America's libertarian tradition. It is a simply written and easy to understand:

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

Think about it. In slightly modernized language: The listing of certain rights in the Constitution shall not be interpreted to deny or dilute other rights retained by the people.

A couple of points leap out:

    1] There are other rights; and

    2] These rights are retained by the People (that would be us) --- not legislatures or presidents.

Go on to Part II

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