The Ninth Amendment

By Restless [Originally on goofyblog 5.2.07]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. –The Ninth Amendment

Last fall, I wrote about Justice Scalia’s idiotic interpretation of the constitution in regard to Roe v. Wade and the right to privacy (Scalia vs. de Tocqueville).

Now comes a book, addressing this interpretation and elaborating on one of the Amendments in our Bill of Rights, the 9th. I had no idea the right of privacy was already guaranteed by this amendment. The book couples the 9th with the 14th, which was passed after the Civil War and was meant to guarantee the “other rights” (guaranteed federally by the 9th) to include the states. A few excerpts:

As a former law professor at the University of Chicago and the University of Virginia, and now as a judge, Scalia has spent years working out an elaborate constitutional theory of originalism. He has consistently dissented from the entire line of human rights cases, arguing that abortion, gay rights, and end-of-life decisions should all be left entirely to the political process. This is a view that has powerful backing outside the Supreme Court.

Nothing is more anathema to these critics than the Court’s reliance on foreign judicial precedents as a source of guidance in interpreting the Constitution. Justice Scalia warned of the Court’s “dangerous” references to foreign law, adding that “this Court … should not impose foreign moods, fads, or fashions on Americans.” He and his fellow critics see no connection between broader conceptions of human rights and constitutional law. They refuse to look seriously at what the Framers believed, how they saw the world.

The author is Daniel A. Farber, the book, forthcoming on April 30th, is Retained by the People: The ‘Silent’ Ninth Amendment and the Constitutional Rights Americans Don’t Know They Have. More. . .

The Ninth Amendment is key to understanding how the Founding Fathers thought about the liberties they expected Americans to enjoy under the Constitution. They did not believe that they were creating these liberties in the Bill of Rights. Instead, they were merely acknowledging some of the rights that no government could properly deny.
The history of the Constitution reveals the purpose of the Ninth and the Founders’ intent: to protect what constitutional lawyers call unenumerated rights — those rights the Founder assumed and felt no need to specify in the Bill of Rights. Unenumerated rights include, for example, the right to privacy. In the America of today, unenumerated rights account for freedoms like a woman’s right to abortion. …
The truth is that anyone interested in the political and legal issues of the day can and should look to the Ninth Amendment for guidance.

Via AlterNet