At a time when civil rights are under siege by the government itself, including the abuse of due process of law, partisan corruption within the Department of Justice, violations of international laws and treaties, and a do-nothing Congress, the public needs the protection of the Bill of Rights unknown amendment, the Ninth Amendment.
"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
The Ninth Amendment to the U.S. Constitution, a part of the Bill of Rights, has been the "Supreme law of the land" since 1791. The Ninth Amendment had an active life in our nation's developing jurisprudence for 150 years. Then the well seemingly went dry and the Ninth fell into near oblivion until the 1960's.
Despite the simplicity of the Ninth Amendment, legal and constitutional scholars have debated the original intent of the amendment. The one sentence amendment has birthed three factions of "originalist" theories: the original intent of the authors, the original intent of the ratifyers, and the original understanding of the public. Additionally, a "textual" faction of scholars favors a text-based understanding of the Ninth Amendment
Further, constitutional scholars have divided into five schools of thought over what the Ninth's twenty-one words mean: the states' righters, the residual rights advocates, the individual natural rights school, the collective rights camp, and the federalists. The federalists further split into the "passive" view and "active" view.
Some scholars have argued the intent of the Ninth Amendment can be found in the Declaration of Independence and its references to "unalienable Rights" and "the consent of the governed." Other scholars cite the Preamble to the Constitution and its "We the People" language.
James Madison, a Representative from Virginia to the first Congress and later President of the United States, proposed the first draft of the Ninth Amendment in a speech to Congress on June 8, 1789.
"The exceptions here [Bill of Rights] or elsewhere in the Constitution, made in favor of particular rights, shall not be construed as to diminish the just importance of other rights retained by the people."
In 1948, in a case called Woods v. Cloyd Miller Co., the Supreme Court discussed the important role of the Ninth Amendment in the balance of power. "We recognize the force of the arguments that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and Tenth Amendments as well."
Still, the Supreme Court had never pronounced a judicial construction of the Ninth Amendment until Griswold v. Connecticut when birth control under the right to privacy was heard. Justice Goldberg wrote in a concurring opinion that failure to overturn the Connecticut ban on birth control would be "to ignore the Ninth Amendment and give it no effect whatsoever."
Goldberg continued, "The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but sine 1791 it has been a basic part of the Constitution which we are sworn to uphold."
In 2000, in a voting rights case, Igartua v. United States, U.S. District Judge Jamie Pieras, Jr., explained, "The Ninth Amendment guarantees individuals those rights inherent to citizenship in a democracy which are not enumerated in the Bill of Rights. In this way the Ninth Amendment recognizes that the Constitution is not exhaustive in its listings of rights and that the people retain certain rights."
The counter view, and one that seems to be prevailing these days, was offered by Robert Bork during his failed bid at confirmation to the Supreme Court. Bork was asked what he thought the Ninth Amendment meant. Bork described the Ninth as an "inkblot" with an indiscernible meaning.
In reality, one need not be a legal scholar to understand the Ninth Amendment covers civil liberties not already included in the Bill of Rights, rights retained by the people. It is time to wipe up Bork's inkblot and use the Ninth Amendment to stop the erosion of our civil rights.
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