You Should Know: The Ninth Amendment
First, let’s have some background. There are a lot of popular misconceptions about the Bill of Rights, ranging from the false, but relatively harmless (“it wasn’t called that at the time”) to the alarmingly misinformed (“it wasn’t the work of the Founding Fathers, and shouldn’t be regarded as a real part of the Constitution”). Here’s a quick summary of the actual history of the writing of our Constitution, including how the Bill of Rights (the first nineteen… I mean, ten Constitutional Amendments) came into existence.
The Constitution of the United States was hammered out by the Confederation Congress. They came together for this purpose in 1787, in Philadelphia, and worked out the particulars of the document over the course of four months: from May 25th through September 17th, at which point the Constitution was signed by the delegates. At this point in time, America had no executive branch, and therefore no chief executive officer. George Washington would be elected as our first president the following year, with John Adams elected vice president.
Several key figures in our nation’s fledgling history, including both John Adams and Thomas Jefferson, were serving in diplomatic positions abroad at the time of the Constitutional Convention. They communicated extensively with the delegates by written correspondence, and works for which they were already responsible were among the influential factors in shaping our Constitution. Given such, they are recognized as having been deeply influential in the shaping of the original Constitution.
The original document was drafted by James Madison, who would go on to become our fourth president, serving two consecutive terms following his election in 1808. Substantial input was provided by such individuals as Thomas Jefferson, John Adams, and Thomas Paine, author of “Common Sense.” Notable patriot Patrick “Give Me Liberty, or Give Me Death” Henry was hotly opposed to the idea of creating a Constitution at all, as at first blush the very idea supported a strong centralization of power. He was persuaded to come on board through the addition of the Bill of Rights, which afforded rights—not just to We the People—but also to the individual states.
States’ rights versus federal authority has always been a controversial topic throughout US history (we spent four years killing each other over it, you know—that one time), and it remains a heated issue even today. At the time of the Constitutional Convention, however, it was easily the fiercest point of fevered contention among the delegates. There was a tremendous sense of the responsibility inherent in what they were doing, and the understanding that whatever direction they took would subsequently shape the course of American history. Thanks to this issue, the necessity of incorporating protection for individual and states’ rights directly into the language of the Constitution was understood, and in the planning stages, before the ink was dry on the original document itself.
The Ratification of the Bill of Rights (and, Yes, It Was Called That at the Time)
Like the original Constitution itself, the Bill of Rights was drafted by James Madison, and originally took the form of nineteen proposed Constitutional Amendments. These were proposed to the United States Congress on June 8th in 1789, Madison drafted nineteen amendments, which he proposed to Congress on June 8, 1789, not quite two years after the Constitution itself had been signed. Through a steady series of approval procedures, the fledgling proposal was narrowed down to seventeen Amendments, and then to twelve, by the House of Representatives and the Senate respectively. After approval by Congress on September 25th of the same year, these twelve Amendments were sent to the individual states for ratification.
The final ten of those twelve Constitutional Amendments were officially ratified, as the Bill of Rights, on the 15th of December in 1791. At this point, they became a recognized part of the US Constitution. The original First and Second Amendments ultimately failed to meet with necessary state approval. The first dealt with certain particulars in how representation was apportioned in the House of Representatives, and the second would have prevented Congressional representatives from voting themselves a pay raise within the current session (in other words, “effective immediately”). That original Second Amendment would eventually become our Twenty-Seventh Amendment, being ratified on May 7th, 1992.
Fun Facts: The Unopposed Elections of George Washington
Washington is considered to have run unopposed during the elections of 1788 and 1792. He received one vote per elector. Each elector was supposed to cast two votes, supporting two candidates, with the overall runner-up at the time being elected as vice president. By receiving one vote per elector, Washington is said to have earned 100% of the presidential vote. It was widely understood that the other candidates were “functionally” running for the vice presidency; the eventual 12th Amendment to the Constitution would change the
The Ninth Amendment: Our Forgotten Potency
Ask the average American today what rights are acknowledged as being afforded to them by the Bill of Rights, and most will stumble to a halt after the first two. A distressing number of people view our rights as being provided by the Constitution, when the idea is that they’re inherent—undeniable, inalienable—and that the Constitution acknowledges the government’s duty to protect them. Technically, “Constitutional rights” is a misnomer, though its use is unlikely to go away any time soon. More’s the pity.
A few people who remember the investigation into Bill Clinton, during the Monica Lewinsky scandal, can hash out a guess as to the Fifth Amendment—it protects one from self-incriminating. Some states’ rights enthusiasts are familiar with the Tenth Amendment, which affords jurisdiction over any matters not specifically retained by the federal government to the discretion of individual states. The Ninth Amendment, however, is rarely referenced in popular culture or major news items, and that’s a pity. It’s entirely relevant to many ongoing issues affecting Americans today.
Like most of the first Ten Amendments to the Constitution, the Ninth Amendment is pretty short. In fact, at a single modest sentence, it’s shorter than several others. Here it is:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
It’s an open door to “Power to the People.” It’s the Billy Mays “But wait, there’s MORE!” of the Bill of Rights. It literally, inarguably, and uncompromisingly asserts the fact that the American people can, by general consensus, stake their claim to fundamental and inalienable human rights which aren’t mentioned in the Constitution at all.
So, why did Madison write this?
As I mentioned earlier, the issue of federal versus state power was the number one issue during the drafting of the Constitution. There were individuals who were heatedly opposed to the idea of a Constitution, which they felt was nothing more than a tool for solidifying centralized power over the rights of the individual states to by-and-large govern themselves. This was ultimately the driving force behind the Tenth Amendment, which assured that any rights not specifically retained by the federal government were left to the individual states.
In writing our first batch of Constitutional Amendments, however, James Madison came to recognize another disturbing possibility, with regard to the future expansion of the power of the government. He understood that society, technology, and general human innovation would continue to advance over time; after all, significant advancement had occurred within his own lifetime (that whole “rebellion against the Crown” and “establishing the first great modern democracy” thing, not to mention the one-man technological revolution that was Benjamin Franklin).
Should society advance significantly, Madison reasoned, it seemed likely that there would eventually exist some commonly-perceived right or fundamental necessity to ensure the continuation of that whole “life, liberty, and pursuit of happiness” deal which he, from his hot and non-air-conditioned chambers, could not hope to anticipate. At such a time as such an innovation came into being, there was the distinct possibility that the Constitution could be turned on its head, and used to restrict the rights of the people.
There is an old Latin maxim, which was recognized at the time of America’s founding: expressio unius est exclusio alterius. In English, this means “the expression of one thing is the exclusion of another.” It is the implication, in legal documentation, that—in a situation with two possibilities—the “common sense interpretation” of one of those possibilities legally excludes the other. It has been raised and debated many times throughout American history since James Madison’s time, and it was a common subject of debate and interpretation going back to a time when people spoke Latin as a native tongue.
James Madison drafted the Ninth Amendment to try and prevent the list of rights recognized by the Bill of Rights as being used to imply that no other protected rights could be claimed in the future. It reinforced the notion that the rights listed were inherent and inalienable, while providing them with room to grow. Though the average American isn’t even aware of the existence of the “Silent Amendment,” it affords us as a society great power over the direction our government takes—should we choose to exercise it.
Given that there are hundreds of millions of us, it should come as no surprise that—despite the general lack of understanding of the Ninth Amendment, and what it entails—efforts have been made to bring it to bear on behalf of all American citizens.
Recent Efforts to Apply the Ninth Amendment
Here are a few areas where the Ninth Amendment might just come in handy, in terms of securing the future of American freedom for all its citizens. Please note that, while they are certainly not my opinions alone, these do reflect upon my own personal views quite heavily.
- Right to Privacy: During the time of America’s founding, privacy was a little-known luxury. Most houses didn’t even have hallways: they were built as a series of interconnected rooms, including bedrooms. The large families of the day meant that multiple people typically shared a bedroom, which was predominantly used only for sleeping. A lack of privacy doesn’t simply impact personal comfort levels: it affects social roles and behavioral norms. No activity that is remotely unusual can be engaged in without observation and influence by those around you. In the present day, privacy concerns have expanded into the electronic medium, with fiercely debated arguments regarding what is required to spy on a person through their mobile device activity. If we indeed hold the rights of the individual as sacred, the modern scientific understanding that you cannot observe someone without affecting their behavior should limit the extent to which said observation is permitted. There is even some argument to the effect that mobile devices and personal information should be treated with the same reverence as a person’s own thoughts (video link), due to how we approach the electronic medium psychologically.
- Right to Engage in Private Sexual Acts Between Consenting Adults: Recognition of gay rights was long overdue, but without the teeth of a Constitutional Amendment to back this up, there are many ways in which gay rights are still under attack—and too many people are now sitting back, congratulating themselves on a job well done. This is quite possibly well-earned, given all that homosexuals in the United States have endured by way of decades of completely legal persecution (video link), but it means that progress in some areas is being reversed. In certain states, for example, the right to start a family via gestational surrogacy is limited to those for whom natural reproduction is a medical—not biological—impossibility. In a country with millions of homosexuals, such situations regularly impact the lives of hundreds of thousands of people, while representing a problem that can be easily dealt with through the introduction of a carefully and simply-worded Constitutional Amendment.
- Right to Die with Dignity: (video link) Thousands of individuals struggle, day by day, with the pain and the suffering of terminal illness. With no end in sight, they are not permitted to pursue painless, physician-assisted suicide, due to a lingering stigma that is entirely religious in its origins. These include individuals who are elderly, with no surviving family members, and people with conditions for whom even viable, experimental treatments are years away (it isn’t so simple as “discovering a cure;” the overall process can take years, and that’s assuming it’s viable to begin with). People with terminal illness are forced to waste away, often on life support, past the point where they can care for themselves—or even communicate with the outside world. They endure until they suffer organ failure, drown in their own fluids, or suffer brain death—and it is not unknown for a person who is brain dead, and only being kept “functionally” alive by machines, to be kept on life support against the wishes of their immediate family. There are high profile cases of the government interfering in this (lookin’ at you, Jeb).
- Right to Reproductive Autonomy: The ongoing issue of abortion is clouded with misunderstanding, false myths, and deliberate ignorance (video link). The pro-life “platform” is based entirely on these misconceptions, and it has its roots in the enforcement of ideas that are at worst rooted in individual religious preferences—and, at best, a matter of personal opinion, completely unenforceable in accordance with known facts. The platform is notoriously unconcerned with the reasons why an abortion is being sought, with the other services provided by an organization that offers abortion services, with the consequences of a society without legal abortions, with the health and well-being of the mother, with the welfare of a child once it has left the womb, or with the profoundly negative way in which it impacts the lives of millions of American women every year. It is one of the primary focal points for under-reported incidents of extremist Christian violence and domestic terrorism, and is a major example of how American policy allows for “religious freedom” to involve the imposition of one’s religious beliefs on other people.
- Right to High-Speed Internet Access: This is a relatively recent proposal, but it is an idea that is gaining traction (video link), both in America and abroad (I’ve always wanted to study a broad… I’m so sorry). The European Union and the United Nations have both come out in favor of pursuing the classification of high-speed internet access as a necessary public utility, and its advancement as an inalienable right. We live in a world that is becoming increasingly globalized; internet access is frequently required to look for a job, to shop for basic necessities, and to pay bills. Our legal regard for internet access—which is still regarded almost as a passing fad, or a curiosity, by the US government—is decades out of date. This antiquated regard for the electronic medium has contributed in many ways to the ability of law enforcement and other government agencies to flout existing, recognized Constitutional rights in ways that wouldn’t be possible in direct physical analogy: recognizing internet access as an inalienable right could assist in the ongoing fight against invasive electronic search, seizure, and surveillance practices.
The Right to Know More
There are many more areas where the Ninth Amendment could be brought to bear, for the good of all American citizens. Is there an issue about which you are passionate, that you would like to see raised in regard to the Ninth Amendment and the protection it could potentially afford? Leave a comment; I’d love to hear from you! In the meanwhile, feel free to check out these additional resources on the subject:
- The Original Meaning of the Ninth Amendment—William S. Boyd School of Law
- Exploring Constitutional Rights: The Right of Privacy—University of Missouri, Kansas City
- US Constitution, The Ninth Amendment—Cornell University Law School
- The Constitution of the United States, the Bill of Rights and All Amendments—ConstitutionUS.com