A Brief Review:
The 9th Amendment of
the U. S. Constitution
Part IIOne of the arguments of the Federalists (the party of John Adams and the dictatorial Alien and Sedition Act) against the Bill of Rights was: since it would be impossible to list all rights, the unnamed would not be protected, and therefore the Government would seize and trample those unnamed rights.
James Madison, one of the authors of The Federalist Papers, responded to this argument when he submitted the Bill of Rights to the House of Representatives.
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.
He concluded: "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 solution was the Ninth Amendment.
Both the Federalists and the Democrats (Jefferson's party) 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 the others favored the explicit statement that became the Ninth Amendment. This was the argument that carried the day.
But the young nation had larger problems to sort out. This militated against revelation of the truly radical nature of the Ninth. Almost no Supreme Court decisions mention it until Griswold v Connecticut which legalized the dissemination of birth control information to married couples. This decision outraged the usual mob of pious authoritarian hypocrites and was the opening shot in what we now call the culture wars. Even Griswold placed the Ninth in a supporting role.
Yet the plain words of the Ninth as well as documentation of the intent of the Founders must lead any reasonable person to conclude that the Constitution acknowledges and retains for the people unstated rights.
Thus, when you apply a "strict constructionist" or "original intent" interpretation of the Ninth Amendment, a very different view of the role of legislatures and courts emerges. Instead of "activist judges" overruling legislatures, you have "strict constructionists" defending unenumerated rights against activist and oppressive authoritarian/majoritarian legislatures and executives.
Read the words again:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Abusive majorities and unresponsive legislatures have denied millions of Americans their unenumerated rights. Sometimes, and not often enough, only the Supreme Court has had the guts to say "enough." If "originalists" are sincere, they have to give full weight to the Ninth Amendment and citizen's unenumerated rights.
Is defending the Ninth judicial activism or "strict construction?"
Is the Right's goal more American liberty --- or less?
You be the judge. It's your right.--- ©2005, Robin Harris