Retained by the People: The “Silent” Ninth Amendment and the Constitutional Rights Americans Don’t Know They Have by Daniel A. Farber (Hardcover; 256 pg.)
We have basic rights that experience has shown are necessary for our happiness. Rights that are at least in part listed in the Constitution. For instance, the freedom of speech.
The Constitution is the basic framework of how we govern ourselves. But, reading it for many is somewhat unsatisfying. What about other rights such as marriage or something as basic as deciding what to have for breakfast? Is there a good way to protect them?
How about the Ninth Amendment? This amendment is a bit confusing. It says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” What does that mean? Can we really know? Or is it, like one person said, more like a smudged ink blot?
Retained by the People argues that not only can we know what the Ninth Amendment means, but it is a great way to protect basic rights. It talks about the history behind the amendment as well as how we can apply it. And, provides many “case studies” to put what we learn into practice. It finishes up by showing how this need not result in courts having too much power.
Daniel Farber provides the reader a basic understanding of an amendment not very well understood. The “forgotten amendment” is given the respect it deserves.
By delving into history and the ideas that shape the values of the Founding Fathers, I will attempt to clarify the Ninth [Amendment] and thrust it into the pivotal role it deserves in resolving our thorny constitutional debates.
This book shows the importance of the Ninth Amendment of the Constitution. The importance is only fully understood by looking at wider constitutional questions and principles. In the process, the book uses the Ninth Amendment to educate the reader about wider lessons.
Should I Read It?
A person who wishes to know the basics about the U.S. Constitution should consider reading this book. Retained by the People takes a little over two hundred pages to explain the basic history behind the Constitution and its application. A nifty introduction and resource to have on hand.
I admit there are no pictures, though there is a helpful chart that summarizes the basic concepts, and a glossary to check in on as required. No pictures is a small demerit in my humble opinion.
The book is specifically about the Ninth Amendment, and rights as a whole, but it fits the story of rights into a wider whole. The reader therefore not only learns about the Ninth Amendment, which is one of those things many think are important but seems not to be talked about that much, but a lot more. And, there are some case studies to consider and think about.
If such things are what you are looking for, this book is for you. The book appeals to history, so “originalists,” those who like that sort of thing, might appreciate it. It has a liberal point of view, but still is concerned about being careful and restrained. Many will appreciate that.
This book is appropriate for young adult sections at the library while also being suitable for a college level course of study. It is not VERY basic in tone so some beginners to the subject matter might at some point be bored or overwhelmed. A lot is covered.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
- Ninth Amendment
The Ninth Amendment of the U.S. Constitution does not get the attention or respect (including by the Supreme Court) it deserves. This is unfortunate for a variety of reasons, including because it is important to clarify basic understandings about constitutional liberty.
The amendment protects rights not expressly cited (“enumerate” means “to list”) in the Constitution. The “human rights” vision recognized, which includes (don’t be scared) reference to foreign law, continued to be important after the Civil War. And, up to the current day.
Let us end the silence!
[A handy “reference chart of constitutional provisions” relevant in this discussion is added.]
1: Who’s Afraid of the Ninth Amendment?
Liberals often use other constitutional provisions, especially the Due Process Clause, to protect fundamental rights not clearly listed in the document. Conservatives argue (fear) that the Ninth Amendment is too vague and does not provide enough limits, allowing judges (and others) to insert their own values into the law, instead of applying “actual” constitutional law.
This is unfortunate. The Ninth Amendment provides important guidance in applying the Framers’ vision [often the conservative’s focus] of basic rights. It also helps put libertarian views, sometimes too one note regarding limits on government power, into a proper perspective.
PART I: Unwritten Rights and the Constitution
2: Natural Rights and the Framers
The Framers argued that humans had basic rights that any legitimate government had no power to deny. They believed such rights could be determined using various sources such as the common law (findings of judges), legislation (assumed not to clash with basic rights), social values, and the law of nations. “Foreign law” was not a problem for them in the right context.
The idea of “natural law” (discovered by examining the nature of humanity) was well accepted by the Framers. The Declaration of Independence is a prime example. Ultimately, the basic concept here can be phrased in various ways (natural rights from the creator, social contract, basic human dignity, evolving social values). It is a basic concept behind the Ninth Amendment.
3: The Debate over Whether to Have a Bill of Rights
The people of the United States in the 1780s determined that the country needed a stronger basic framework (Constitution) of government. Supporters of the new Constitution are known as “Federalists” while opponents are “Anti-Federalists.”
The Constitution sets forth the rules for the national government and includes a few limits such as protecting the right to a jury in criminal cases. But, people were worried that basic rights, such as freedom of speech, did not seem to be adequately protected.
Federalists were worried adding rights might be a backdoor way of wrongfully limiting federal power. Also, they argued, the Constitution already was limited. The federal government only had the power given to it. Finally, if you list some rights, and you cannot list them all (too many exist!), the partial list might ironically backfire on you. The unlisted rights will be threatened.
4: Madison’s Solution
James Madison, the “Father of the Constitution,” at first did not think a Bill of Rights was necessary. But, in time, in part because his constituents expected it, supported the idea in the First Congress. A key point: the open-ended Necessary and Proper Clause implies that the Congress has broad powers. This might threaten rights in the process.
Madison threaded the needle. He supported an express list of rights. Then, Madison used the language of the Ninth Amendment to reaffirm (and sending a message is a basic purpose of the Bill of Rights) that there are still other rights.
The word “enumerate” is also notable. The Constitution did not create rights in each case. We always had a right to practice religion. The Constitution lists (enumerates) rights. But, other rights exist and shall not be “disparaged.” Thus, the importance of the Ninth AMendment.
5: After the Ninth
The Bill of Rights was not a major matter of debate in the antebellum period, except in limited ways. The Alien and Sedition Acts raised First Amendment issues.
But, the major constitutional debates tended to be over federalism, and not specific rights such as over guns, criminal procedure, or the like. Nonetheless, the overall principles of the Ninth Amendment, including the importance of the laws of nations, were still respected.
6: Natural Law and the Antislavery Republicans
Natural rights arose in the debates over slavery. The anti-slavery movement reaffirmed the idea that everyone, including slaves, had certain basic rights.
The moderate anti-slavery position set forth by people like Abraham Lincoln was that the Constitution granted slavery existed in states that already had it. Natural rights might be unjustly denied, the Framers determining it just was not realistic to end slavery right away.
But, there was no right, in fact it was a basic wrong, to spread slavery into new lands, including the federal territories.
7: A New Birth of Freedom
The Thirteenth Amendment ended slavery. Many framers of the Thirteenth Amendment appealed to natural rights. Some argued the amendment broadly gave all citizens, including freed slaves, broad privileges and immunities of citizenship. These rights are cited in Art. IV in the Privileges and Immunities Clause, which protects interstate travelers.
This position was challenged as beyond the reach of the amendment, including by people like John Bingham, who strongly respected the rights of freed blacks. This led to the passage of the Fourteenth Amendment, which defined citizenship, and clearly protected the rights of citizens as well as the due process and equal protection (from state action) of all persons.
PART II: Protecting Fundamental Rights
8: Fundamental Rights and the Due Process Clause
The Supreme Court shortly after the ratification of the Fourteenth Amendment set forth a limited view on its reach (Slaughterhouse Cases).
It held that the Privileges or Immunities Clause did not broadly protect fundamental rights. In time, this basic function was furthered by use of the Due Process Clause, in an approach known as “substantive due process.” This at times led to conservative results, such as striking down minimum wage laws. Other times, it protected freedom of speech and more “liberal” rights.
There is some historical basis to the use of due process to broadly protect fundamental rights. Nonetheless, the text appears to focus on procedure (a fair trial etc.), and there are better approaches to protect fundamental rights. Substantive due process is easier to attack as well.
9: Fundamental Rights Today
Fundamental rights, including those not expressly listed, have been long recognized as basic to our constitutional liberty. There might be debates on line drawing, how or who should determine the reach of rights, but that bottom line is clear.
10: An Invitation to Activism?
A basic concern is that unenumerated rights result in “activism” by the courts (and maybe other governmental bodies). This is at times called the “Lochner” problem, named after the Supreme Court case that struck down a maximum hour law because it wrongly violated the “right to contract.” Some will appeal to democracy, arguing the judges are just ruling based on ideology.
The arguments are questionable on various grounds. Sometimes, judges are not really overruling a majority, as compared to a minority that unfairly denies rights. Also, there are rights protected from majority rule. And, there are always lines to be drawn. It’s a question of how.
11: A User’s Guide to the Ninth Amendment
The Ninth and Fourteenth Amendments protect our rights. One important factor to remember here is that this also gives the government (including Congress) power to help do the job. Congress, for instance, can make sure a state does not deny equal protection of the laws.
There are some basic factors that help us determine if a right is fundamental:
- Supreme Court precedent establishing the right or rights like it
- Connections to specific constitutional guarantees
- Long-standing tradition
- Contemporary social consensus
- Legislation and lower court opinions recognizing the right
- More recent tradition
- Decisions by international lawmakers (of countries with similar basic legal traditions)
PART III: Applying the Ninth Amendment
12: Reproductive Rights
This part of the book covers, in brief discussions that are not intended to be comprehensive, but still are a bit too shallow, various “case studies” on a range of potential fundamental rights.
The first chapter basically covers abortion rights, the author arguing Planned Parenthood v. Casey basically correctly applied the criteria cited in the last chapter. This book was written in 2007, so a lot has changed. But, these sections suggest a possible approach overall.
13: The End of Life
This chapter divides end-of-life issues between the refusal of treatment (which he on balance accepts as a fundamental right), and “assisted” suicide (like in Oregon), which he argues (at least at the moment) is too novel and full of questions to be a Ninth Amendment right.
14: Gay Rights
This chapter, written before same-sex marriage was held to be a constitutional right, discusses the development of gay rights as a constitutional matter. The Supreme Court first in the 1980s held same-sex sexual relations was not protected, then started to recognize the importance of equal treatment, and then protected same-sex relations. The chapter ends by arguing that same-sex marriage, state-recognized, is a more complicated issue.
A right to some minimal level of education is not accepted by the Supreme Court. This chapter argues that history, state practice, and more show that it should be.
16: The Right to Government Protection
The right to government protection from harm is another matter that the Supreme Court only recognizes in a limited way. For instance, if you are in governmental custody, the government has some special obligations. This chapter argues for a more open-ended approach.
17: The Right to Travel and Other Rights
The right to travel, at least from state to state, has been protected by the Supreme Court though it is vague about why. The Ninth Amendment is a good source. Two other possible Ninth Amendment rights are a stronger protection against threats to the home (including governmental takings) and informational privacy. Many other rights can be imagined.
PART IV: Broader Implications
18: Fundamental Rights and the Judicial Process
Rights are partially protected by judges. A basic way this is done is by use of various legal principles applied to individual cases. There is no magical formula here, but case-by-case judicial interpretation has shown to be a quite reasonable and restrained approach. The method does not do too much at once, but over time, recognizes that changing times warrants changing the law.
19: Joining the Rest of the World
There is some opposition, especially among conservatives, to the citation of foreign law in American court opinions. But, fundamental rights have always been seen on some level to be based on universal principles. State judges cite other states’ laws without being deemed wrong. And, foreign law is but one tool in judicial interpretation.
20: The Ninth Amendment and the Future
The Ninth Amendment reflects a basic constitutional principle. We should not be shy about using it. There are principled, practical, and proper ways of applying it. We should be careful about doing too much, especially because unlike specific constitutional provisions, the Ninth Amendment is a more open-ended command. But, a proper middle path exists.
Appendix: Misunderstanding the Framers
This section answers various arguments made against the interpretation of the Ninth Amendment found in the book. The arguments generally are technical arguments that provide a more limited view of the amendment. One put forth by some libertarians also wrongly (in his view) argues the Ninth Amendment is an open-ended argument for “liberty” overall.
[Randy Barnett is one person who argued the last idea, a “presumption of liberty” approach. Barnett also edited a helpful collection of articles on the Ninth Amendment.]
Points to Ponder
The Ninth Amendment puts forth a general principle that there are rights out there not expressly listed in the Constitution. On some level, this is not a very controversial statement. The problem comes when trying to apply it in the real world, including the courts.
This I think is a basic thing to keep in mind. I have seen some people simply refer to the amendment as a sort of “so there” answer to someone who says “well, a right to birth control is not in the Constitution.” Okay. But, does this necessarily mean the Supreme Court gets to decide that? And, how would it do so? This book helps us answer, especially the second part.
The book also provides an alternative to so-called “substantive due process,” which is how the courts often protect these rights. The concept gets a lot of grief, including people ridiculing the basic idea. But, again, what is the bottom line? Somehow, there are many rights not clearly expressed in the Constitution. The trick is to find out how to find them and do so carefully.
Daniel Farber studied law, clerked for Justice John Paul Stevens, and practiced law for a time at a major firm. He later became a law professor.
Farber wrote several books, some more academic in nature, while a few are more appropriate for the average reader. An early example of the latter would be Lincoln’s Constitution, which discusses constitutional matters arising during the Civil War.
Farber’s book Desperately Seeking Certainty (written with his frequent collaborator, Suzanna Sherry) is a basic statement of his view on constitutional analysis. Farber argues that no single approach (such as originalism or textualism) is appropriate. This might upset some people who like easy, clear lines, but in the end, the result will be reasonable. And, realistic. In his view!
Such an approach is also suggested by his book Eco-Pragmatism: Making Sensible Environmental Decisions in an Uncertain World. A fuller listing of his publications can be found at the link.
Is Retained By the People a Reliable Source?
The author writes about constitutional history and meaning, which is appropriate for someone who has expertise in constitutional law. Like the writer of this book.
The book includes a basic summary of history with relatively brief endnotes. This is not intended to be an academic treatise. It is reliable as a basic summary. Those who want a more in-depth analysis to clarify nuances might want to look elsewhere.
The author references foreign law and practices a few times. A few references, for example, are made to German law. They are not very specific and in one case rests on one article, which I was wary about. The case studies are also too brief in my view at times to give the reader enough of an understanding of the basic issues at stake given the depth of the topics.
The book as a whole is reliable. I would be somewhat on guard regarding the case studies and references to the foreign practice. But, that is a balance in books of this type with a lot of material without having the fullness of a larger, more academic work.