The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
In an earlier post, (see: The Fourth Amendment ), I wrote about the term “the people” and what the founders and the courts have said about its meaning. Well here it is again. So why did James Madison include this as one of his 17 original amendments?
To understand this let’s step back just a bit. As in every political debate there are always at least two sides. For those who felt the only way to fix the wrongs of the Confederation of States was to build a stronger central government the need for the Constitution was clear, for those who favored the power of the state over the central government it was not. The first group were known as Federalists, and of course the second group, Anti-Federalist. I believe Thomas Jefferson found himself caught somewhere in the middle, as we saw with is ghost writing of the Kentucky Resolutions.
Men like Madison and Alexander Hamilton were clearly on the side of the new constitution, and felt there was no need to insert into the Constitution a list of rights for the people because citizen involvement in the government would ensure individual rights. The anti-federalists viewed it quite differently and felt the protections were critical and threatened opposition to the document. Recognizing the need to address the concerns of the opposition Madison drafted 17 amendments, one of which became the ninth. He understood he could not enumerate or detail every right the citizens of the nation might enjoy, but did want to say that by detailing some, there were still others that existed and belonged to the citizens as fundamental rights.
For example, the Supreme Court[i] has held the right of a married couple to make private decisions within the marriage as a fundamental right, overturning Connecticut laws based on Ninth and Fourteenth Amendments.
The problem this amendment presents seems to be two-fold. The first it the elastic nature of the society. As our social standards expand, or contract, how do we anchor ourselves to what are fundamental rights? Life, liberty and the pursuit of happiness is a very broad context. As the battle rages now should the court weight in and say alternate gender identity is protected by the Ninth Amendment? The second issue is akin to what I just said… We leave it to a few judges to render their opinions, learned or otherwise to define the expanding rights.
While I have some concern with the vagueness of the amendment, I am grateful it is there, for as we’ve seen with the expansion of the central government, we the people need every protection from it we have. As James Comey pointed out yesterday,[ii] the government has the right to look at almost all aspects of a people’s life given court approval. He said this within the context of explaining how the use of wide-spread electronic encryption was limiting the government’s ability to monitor communication and investigate crime.
At the end of the day the question comes back to either the right of the individual or the right of the collective. We have seen over the past 50-years a willingness to sacrifice our individual privacy for that nebulous thing called security. The Ninth Amendment is just one small protection for the individual.